Feldman: Guantanamo Detainees May be Difficult to Try, Depending on Hamdan Ruling

President George W. Bush, during a recent interview with the German ARD television network, said he "would like to end Guantanamo." But, he said, closing the facility depends on the Supreme Court’s upcoming ruling in Hamdan v. Rumsfeld, which will determine whether detainees should be subject to civil or military trials. The case arose in 2004 after an indicted detainee—a Yemeni national and former driver of Osama bin Laden—Salim Ahmed Hamdan, challenged the legality of the military tribunals trying him.

CFR Adjunct Fellow Noah Feldman, author of After Jihad and a law professor at New York University, discusses the legal issues at stake in the Hamdan decision, expected in late June. He says the case will decide whether military tribunals are constitutionally sufficient and warns that if the Supreme Court rules current trial procedures inadequate, it may be difficult to try many of the nearly 500 Guantanamo detainees because "much of the evidence—all of the evidence, in some cases—is gleaned from procedures that would not be admissible in ordinary courts."

As you know, Bush said on German television that he "would like to end Guantanamo," and cited a need to wait for the Supreme Court to rule on how detainee cases should be adjudicated. That ruling, for the case Hamdan v. Rumsfeld, is expected at the end of June. What is being decided in that case at this point?

Well, what’s relevant to his comments is essentially the question of what kind of trial process is constitutionally required for the detainees. What the case will decide, in part, is whether the current procedures for trial are constitutionally sufficient and adequate. And if they are found to be adequate and sufficient, then I suppose, in theory, one could simply put all of the Guantanamo detainees on trial using exactly the procedures that have been used for Hamdan, which is the first of them. If, on the other hand, the court finds that these procedures are inadequate, then the Department of Defense would have to make some amendments to the way a trial is going to operate.

I suppose it’s possible that if the Supreme Court were to require, for example, that the defendant detainees see evidence against them and it’s some kind of secret evidence, which we treat as inadmissible, it might actually make it very difficult for them to put some of these guys on trial, because much of the evidence—all of the evidence, in some cases—is gleaned from procedures that would not be admissible in ordinary courts. So it’s conceivable there could be some kind of a holding that would in some ways derail this goal of putting all these guys on trial. However, that’s unlikely, because the Court also reads the newspapers, and the Court is also aware that the goal is they’d all like to get rid of Guantanamo. The Court doesn’t like Guantanamo at all. So that’s sort of their take on this issue.

Do you think the Court has been influenced by international pressure to close down Guantanamo? Do you think that will influence them to go for civil trials?

Well, it seems the Court is always a little more sophisticated than direct influence from abroad pushing them toward one result or another. That’s just not how they, as it were, encounter the world. They’re concerned to protect civil liberties, they’re concerned about the reputation the United States has internationally. And part of this calculus is they know the United States looks better if it puts people on trial appropriately. But the Court would not, I don’t think, be swayed by the arguments to close Guantanamo in such a way as to weaken the basic civil-liberties protections that are required in the Constitution.

Do you think Bush’s comments represent that he is now recognizing this administration is beholden to the Supreme Court when it comes to Guantanamo?

Well, he has no choice on that question. I mean, when the Supreme Court ruled in the Rasul [v. Bush] and Hamdi [v. Rumsfeld] cases, the administration did not take the position that it was not bound by the Supreme Court judgments. The administration complied with the Court’s rulings. So, if Bush has acknowledged at every stage after those opinions that he is bound by what the Supreme Court says, he would have taken what he called the nuclear option, where he said "I don’t care what the Supreme Court says; I can do what I want." The Court held that Guantanamo is, for purpose of the habeas corpus statute, part of the United States, so therefore that the habeas corpus right applied. That was the core of the Court’s holding in Rasul and Hamdi. So he acknowledges that he’s got to do what the Court tells him, but I don’t know if "beholden" is the word that I would use because the Court said in those cases, to the [Bush] administration, "Go back and figure out some way to give these guys a trial, and then we will be deferential to the way you design those trials." Now the question in Hamdan is how deferential.

Can you distinguish what the difference will be between civil trials and military tribunals? What would military trials be like?

The biggest difference is that it’s who they’re in front of. [Tribunals] are in front of military officers, and the rules of evidence are quite different. There are kinds of secret evidence that would be allowed here, to which the defendants are not necessarily entitled. That’s the biggest example of the difference between the two. There are lawyers in both, obviously, and the opportunity to present a case in both. And, in theory, the opportunity to refute what a prosecutor says, but in an ordinary trial you get to confront the witnesses against you, and that’s not been the case.

These are the first military tribunals the United States has called since World War II. What are the legal ramifications of that?

The Court has definitely taken the view that military tribunals are permissible, so that’s significant. But you could imagine the Court saying that such tribunals are unconstitutional--they have not done so. The suggestion is that in the future, these military tribunals may be used again, subject to certain requirements.

The majority of detainees are termed "enemy combatants." The Justice Department has said the president had the power to permit the Pentagon to hold the detainees indefinitely. What’s the significance of holding these men without judicial review?

That’s not exactly correct, because under the Supreme Court’s holdings in Hamdi and Rasul [both Guantanamo-related cases in which the Court said enemy combatants could challenge U.S. detainment], the men were entitled by law to a certain amount of review. And even though Congress can definitely change that law, the Court left open the possibility that under the Constitution itself, it would be impermissible to hold them indefinitely without any form of judicial review. So, now, the Court hasn’t said—they didn’t have to—that under the law they had to give them some opportunity for judicial proceedings. But the Court did imply that. So we’re not quite there yet, but we’re moving in the direction of a legal principle to the effect that the United States can’t, under its own Constitution, hold people forever.

But, to the extent that there has been talk of this, it’s obviously quite troublesome from the standpoint of basic rule-of-law ideals, because the single most basic right that exists in any of the systems is the right to some form of government judicial review of your detention. Without that, it’s hard to say that you’re living under the rule of law. The government could take you away, never have to answer to any judicial body about why, and then it’d be very hard to say you were living under the rule of law. That’s the single, irrefutable component most important in a legal rule of order.

President Bush says, essentially, he would like to "end Guantanamo" but that he’s waiting for this decision from the Court. Do you think that this decision is in some way connected to the closing of Guantanamo? Is the closing of Guantanamo predicated upon this decision?

They can’t close Guantanamo unless they know what they’re going to do with the people in it. If they want to put them on trial, they need some principles for putting them on trial. So, in that sense, they’re closely connected. But the president could, if he wanted to, close Guantanamo tomorrow. He’d just have to do something with the people there.

Are there certain issues that are, in terms of international law, related to the Hamdan case that you see as essential in some sort of ruling?

In the background of the Hamdan case is the question of whether we’re complying with the Geneva Convention with respect to these detainees. The Court hasn’t said, in its previous opinions, that the Geneva Convention was the only measure, but some of the justices strongly said in this and other cases that there was an obligation under the Geneva Convention to provide some form of a hearing. I think it’s quite reasonable to take the view that the Supreme Court’s opinion here will be directly relevant to future constructions of the Geneva Convention, and I expect that the opinion won’t turn on the Geneva Convention but it will certainly mention it, I would guess.

The United Kingdom’s Attorney General Lord Peter Goldsmith recommended that Guantanamo should be closed and the United States said "no." What does it mean when a person in a prominent legal position from one of our close allies makes a comment like that?

It’s a way of one of our close allies telling us that they want to distance themselves from this danger. They see it as publicly harmful, and they see a continuation [of Guantanamo] as problematic with their own political statements. This is an ally who stuck with us through thick and thin. It’s been backing us on WMD, backing us on the Iraq war. Maybe it’s the best ally we’ve got, especially in terms of security issues, by a huge margin. And they’re saying even they draw the line there. Legally, I think what’s significant about it is that, at the margins, the justices are aware of what the rest of the world thinks and they want to look respectable in the eyes of the rest of the world. And it doesn’t directly determine their outcomes, but they care about it on some level. And here I think that goes to the question of how we have a state that operates under the law; and if we don’t, and if Guantanamo is a blow to that. That is definitely relevant to their thinking, undoubtedly.