Justices: Try Gitmo Detainees in Federal Courts

Robert Barnes
Washington Post Supreme Court Reporter
Friday, June 13, 2008 11:00 AM

Washington Post Supreme Court reporter Robert Barnes was online Friday, June 13 at 11 a.m. ET to discuss the court's decision against the Bush administration on Guantanamo detainees, which rules that the prisoners have a Constitutional right to be tried in U.S. federal courts.

Court Says Guantanamo Detainees Have Right to Challenge Detention (Post, June 12)

The transcript follows.


Robert Barnes: Good morning, everyone, and thanks for stopping by. I'll try to answer your questions about the Supreme Court's ruling yesterday in the cases involving detainees at Guantanamo Bay, or at least relay what people smarter than me have said. I think that one thing we will have to acknowledge first is that, while it was a momentous decision, it raises as many legal questions as it answers. Let's begin.


Minnesota: Mr. Barnes, thank you for taking questions. I read an AP report that said the administration might "respond to the ruling with new legislation." Huh? First of all, why do we hear all about how terrible it is when judges "legislate from the bench," but not when President Bush wants to legislate from the Oval Office? Last I checked, only one branch of our government is charged with crafting legislation.

Second, is there even a remote chance that this lame-duck president could get anything curbing civil rights through a Democratic-controlled Congress right now, especially with Republicans trying to distance themselves from him? What are the president's options with respect to legislation? What the heck is he talking about?

Robert Barnes: Well, to the first part of your question, certainly it is part of the president's job to propose legislation and work with Congress to pass it. In fact, some of the previous court decisions on detainees have advised the political branches to do just that. The court's divided decision yesterday was that they didn't do a good enough job to protect the detainees' habeas rights. As to whether Congress actually would want to pass legislation at this point, more reporting is needed. But to me it would seem hard for Republicans and Democrats to come up with a new law at this point in time. Maybe others will disagree.


Arlington, Va.: I don't recall German and Japanese prisoners in WWII getting access to the courts. Why can't Department of Defense just declare the detainees at Guantanamo to be prisoners of war?

Robert Barnes: That was a point made in the dissents yesterday. What is different here is that the country is fighting a much different, undeclared war. When will it end? The majority opinion said hearings were needed in this case partly because being found an enemy combatant and thus subject to indefinite incarceration could mean being locked up for a "generation" or more.


Washington: Justice Kennedy conceded that there is no case that ever has extended habeas corpus like this, referring to de jure sovereignty. To get around this problem, can't the military just set up combatant prison camps in Afghanistan or Iraq?

Robert Barnes: That is a good question, and one I'm sure will be litigated. Certainly, yesterday's decision referred only to those held at Guantanamo. Interestingly, the court also in a separate case yesterday made clear that U.S. citizens being held in Iraq had the right to file habeas corpus petitions in U.S. courts challenging their detention. Perhaps we can post that story as well.


washingtonpost.com: Ability to Challenge Transfer to Foreign Custody Is Limited


Floris, Va.: By siding with the minority opinion and President Bush in the Supreme Court's decision yesterday while admitting he had yet to read the 70-page report by the majority or even the minority opinion by Scalia, doesn't Sen. McCain appear a little foolish? Or does this play well with the Republican base? From the few polls I've seen the public agrees with Kennedy and company.

Robert Barnes: Well, Sen. McCain took an active role in drafting the 2006 Military Commissions Act at issue in yesterday's decision, so I'm sure he is quite conversant on the issue. I think that in general you're right that Republicans were the staunchest supporters of the efforts to keep these cases out of U.S. courts, but a good number of Democratic legislators agreed as well. It is a complex question, as yesterday's 5-4 decision would indicate.


Seattle: Did I have cause to be concerned when Bush released a statement saying that he would abide by the court's ruling, as if there were another option?

Robert Barnes: I don't think I'd read too much into it; I think that's just what public officials say. I think at the heart of yesterday's rulings were very interesting questions about the separation of powers, which we have seen time and again on this issue.


Pittsburgh: When the Presidential candidates are campaigning this summer and fall, do you think they will raise the issue of their potential Supreme Court nominations with respect to this case, i.e. whether they'd favor justices likely to uphold or overturn this decision?

Robert Barnes: Certainly you saw a divide on the issue, with McCain expressing disappointment and Obama applauding the ruling. I always think Supreme Court appointments are going to be a bigger issue in presidential elections than they usually turn out to be, but controversial cases such as this focus the public's attention on the court, and I don't think there is anyone who doesn't believe the next president will have a chance to make one or two appointments to the court.


What is the judicial equivalent of a "signing statement"?: President Bush has gone on record as saying his presidency will abide by the ruling, but he doesn't have to agree with it. Well, when the Legislative branch, Congress, passed laws he didn't agree with he merely issued a "signing statement". So, what is the judicial equivalent of a "signing statement"? What could happen to him if, during the seven months that remains to his term, he makes only a token attempt to abide by the ruling?

Robert Barnes: Well, in some ways, it is out of his hands. Lawyers for the detainees will be pursuing hearings in federal courts actively, and judges will be deciding how and when they should be conducted. But certainly those decisions can be appealed by the government, and the process could take years -- as it has already.


Washington: Is the Defense Department planning to continue the military commissions already in progress at Guantanamo? What impact will the Boumediene decision have on those cases?

Robert Barnes: Yes -- there are about 20 prisoners who have been charged with specific crimes, and military authorities say those proceedings will go forward. Yesterday's decision did not concern those commissions, although lawyers for some of the detainees said yesterday they believe the decision will have some impact. Exactly what is not clear. This is one of many questions -- what will these hearings look like, what accommodations will be made for classified information -- that are yet to be answered.


Arlington, Va.: It seems to me that the administration tied the hands of the court -- mainly Kennedy. Everyone agrees that the majority of these folks being held are quite dangerous and need serious supervision, but in denying any type of oversight, openness or redress by those being held, the Bush administration basically set up an autonomous prison. The lack of any type of process or habeas corpus goes to the heart of our conception of a legal system and even fairness. In providing no real procedural alternative or oversight, the White House basically set this decision up themselves.

Robert Barnes: There are many critics of the administration who agree with you, but remember this was a close vote. The change of one vote would have meant upholding the procedures that President Bush and Congress agreed to.


Florida: Hello. I thought that Justice Scalia's remark that "more Americans will most certainly be killed" because of this Supreme Court decision really was out of line and overly critical. What's your take on his statement?

Robert Barnes: I think Justice Scalia is a good writer who knows how to draw attention to his dissents. It is clear that he felt strongly about this, as he has in the court's previous decisions. I'll leave it to others to decide if he went too far.


Re: Camps in Iraq/Afghanistan: The military would be concerned about the security and privacy of such prisons, and the fact that the governments of either nation could tell them to leave when those governments wanted. Gitmo is leased to the U.S. military in perpetuity in ways that make it unclear (until yesterday) if Congress or the courts could apply.

Robert Barnes: On Gitmo, I'd say the court made it pretty clear in 2004 in the Rasul decision that U.S. courts have a role because of the nation's unique interests and control. As Justice Souter wrote in his concurring opinion, this decision should not be "a bolt out of the blue" to anyone who has been following the court's rulings.


Baltimore: This is more a political question than anything else. It appears on its face that the five-justice majority strictly construed the Constitution as to the habeas corpus issue. The Scalia faction of the court found fit to try and interpret the Constitution in an activist way to allow the neocons to continue what they are doing. Why are Scalia/Alito/Roberts/Thomas allowed to be judicially active on their issues -- interpreting the Constitution rather than applying it strictly on this issue -- but the other justices are not? Does this not put lie to Republicans' staunch advocacy of "strict constructionist" judges?

Robert Barnes: I must tell you that I think "judicial activism" most times is in the eye of the beholder. Or at least the dissenter. I think conservatives would look at the decision and take just the opposite view that you present. Certainly that was the take of the Wall Street Journal editorial board this morning, where the headline is "President Kennedy.''


Raleigh, N.C.: The excerpts of Scalia's dissent I saw in the press centered on his discussion of the consequences of the decision. Could you tell us what his legal/Constitutional reasoning was?

Robert Barnes: He disagreed quite forcefully with the idea that the foreign detainees had any protection under the Constitution. You can read the opinion and dissents at the court's Web site.


Robert Barnes: That has to do us for today. We are entering a busy time for the court, as it tries to complete its work by the end of June. It will issue more opinions on Monday -- but no, I don't know what they will be. I enjoy hearing what's on your minds; maybe we'll chat again.


Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.

View all comments that have been posted about this article.

© 2008 Washingtonpost.Newsweek Interactive