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Supreme Court Will Hear Guantanamo Detainee Case

Aired November 10, 2003 - 14:17   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


MILES O'BRIEN, CNN ANCHOR: Now, as we told you earlier, the Supreme Court is going to hear appeals over whether the government can hold hundreds of suspected terrorists at Gauntanamo Bay. We're going to take a closer look at the case, as well as that of the AWOL Army medic, Simone Holcomb. She's refused to return to duty in Iraq, and instead has decided to stay home with her children to avoid a custody battle. With us to sort out these issues former Air Force attorney Scott Silliman. He is now a law professor at Duke University and executive director of the law school's Center on Law, Ethics and National Security.
Good to have you with us, sir.

SCOTT SILLIMAN, FMR. AIR FORCE ATTY.: Good to be back with you, Miles.

O'BRIEN: All right, the Supreme Court, taking up the Gauntanamo issue, how significant is that one?

SILLIMAN: I think it's extremely significant. Keep in mind the that Supreme Court earlier declined to look at this case when it came out of the Ninth Circuit. The fact that the United States Supreme Court this morning said that it wanted to hear arguments on this issue really is the court saying we want to go back and look at a case that was decided 53 years ago, Johnson versus Isendrager (ph), which shields anything that happens outside this country with regard to our interrogations, our detentions from review in the courts of this country. The fact that they said they want to hear argument indicates they are going to go back and relook at that case, and that case is pivotal to the government as far as detentions at Gauntanamo Bay, the military commissions which are surely to come, and also the Moussaoui case.

O'BRIEN: All right, well, let's talk -- can you give us a few specifics about this case without getting too far in ancient history, but to the extent it relates to this case, it might be worth bringing them out.

SILLIMAN: Yes, Miles, in a word, back in 1950 the Supreme Court said in dealing with 21 Germans who were passing information to the Japanese about American military activities, that because they were prosecuted in China, they were incarcerated and occupied Germany and had never been in the United States at all, there was no nexus, no relationship with our federal courts, therefore, they would not be heard. There was no jurisdiction period. That case of 53 years ago is the government's central case in shielding Gauntanamo Bay from any review of the federal courts. It was the Ninth Circuit agreed and cited that case, the District of Columbia circuit agreed, cited the case. Now the Supreme has granted cert on the District of Columbia cases. It's a very significant development, and one which obviously disappoints the governments.

O'BRIEN: It seems like a fairly clear-cut precedent.

SILLIMAN: Well, it does, but keep in mind, Miles, that that case was decided in World War II where you had a formal declaration of war. You were dealing with Germans, who were soldiers in a state, state war. Here we're dealing with this war on terror. And the court must look at that and say it's a different environment, a different situation, can we take this case of 53 years ago and make it equally applicable to what the government is dealing with right now? And that's a question that all of us are asking.

O'BRIEN: All right. Let's move on quickly. We can talk a lot more about that, but I want to get a question in to you about this whole issue of this poor Army medic, mother, who would prefer to stay home with her children as opposed to going back to Iraq. You know, there are laws and then there is public relations, and the two seem to be at odds here.

SILLIMAN: Well, you're exactly right, Miles, and I think probably the public relations is going to win out in the end. The Army charged her with being absent without leave because she did not go back to Iraq. She was caught between a rock and a hard place. The court said one of the two parents, either this sergeant or her husband, had to be there. Both were being deployed back to Iraq. She said she had to take care of her children. She is caught in that legal quagmire there.

The Army is kind of signaling, I think, even today that they are going to try to resolve it without going to legal action. That's the smart thing to do, just as they did with the sergeant charged with cowardice last week.

O'BRIEN: Yes, I think there's probably a lot of people in the field who are just kind of reading the rules and regulations, and perhaps once it gets filtered up a little higher, they say, wait a minute, the letter of the law here may not be the best way to go.

SILLIMAN: Well, I think you're right, Miles. And keep in mind that a lot of the polls are now showing that the morale of our U.S. troops in Iraq is not the highest. As a matter of fact, some are suggesting that perhaps 50 percent claim that the morale over there is bad. This is not the case that the army Wants to take and make public about really prosecuting a mother who is concerned with her young children. It's a no-win situation for the Army. They need to back off.

O'BRIEN: All right, there are some battles that perhaps the Pentagon shouldn't fight. I guess we're seeing that. Scott Silliman, Duke University, always a pleasure hearing your insights on the law and the military.

SILLIMAN: Thanks, Miles. A pleasure to be with you. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired November 10, 2003 - 14:17   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN, CNN ANCHOR: Now, as we told you earlier, the Supreme Court is going to hear appeals over whether the government can hold hundreds of suspected terrorists at Gauntanamo Bay. We're going to take a closer look at the case, as well as that of the AWOL Army medic, Simone Holcomb. She's refused to return to duty in Iraq, and instead has decided to stay home with her children to avoid a custody battle. With us to sort out these issues former Air Force attorney Scott Silliman. He is now a law professor at Duke University and executive director of the law school's Center on Law, Ethics and National Security.
Good to have you with us, sir.

SCOTT SILLIMAN, FMR. AIR FORCE ATTY.: Good to be back with you, Miles.

O'BRIEN: All right, the Supreme Court, taking up the Gauntanamo issue, how significant is that one?

SILLIMAN: I think it's extremely significant. Keep in mind the that Supreme Court earlier declined to look at this case when it came out of the Ninth Circuit. The fact that the United States Supreme Court this morning said that it wanted to hear arguments on this issue really is the court saying we want to go back and look at a case that was decided 53 years ago, Johnson versus Isendrager (ph), which shields anything that happens outside this country with regard to our interrogations, our detentions from review in the courts of this country. The fact that they said they want to hear argument indicates they are going to go back and relook at that case, and that case is pivotal to the government as far as detentions at Gauntanamo Bay, the military commissions which are surely to come, and also the Moussaoui case.

O'BRIEN: All right, well, let's talk -- can you give us a few specifics about this case without getting too far in ancient history, but to the extent it relates to this case, it might be worth bringing them out.

SILLIMAN: Yes, Miles, in a word, back in 1950 the Supreme Court said in dealing with 21 Germans who were passing information to the Japanese about American military activities, that because they were prosecuted in China, they were incarcerated and occupied Germany and had never been in the United States at all, there was no nexus, no relationship with our federal courts, therefore, they would not be heard. There was no jurisdiction period. That case of 53 years ago is the government's central case in shielding Gauntanamo Bay from any review of the federal courts. It was the Ninth Circuit agreed and cited that case, the District of Columbia circuit agreed, cited the case. Now the Supreme has granted cert on the District of Columbia cases. It's a very significant development, and one which obviously disappoints the governments.

O'BRIEN: It seems like a fairly clear-cut precedent.

SILLIMAN: Well, it does, but keep in mind, Miles, that that case was decided in World War II where you had a formal declaration of war. You were dealing with Germans, who were soldiers in a state, state war. Here we're dealing with this war on terror. And the court must look at that and say it's a different environment, a different situation, can we take this case of 53 years ago and make it equally applicable to what the government is dealing with right now? And that's a question that all of us are asking.

O'BRIEN: All right. Let's move on quickly. We can talk a lot more about that, but I want to get a question in to you about this whole issue of this poor Army medic, mother, who would prefer to stay home with her children as opposed to going back to Iraq. You know, there are laws and then there is public relations, and the two seem to be at odds here.

SILLIMAN: Well, you're exactly right, Miles, and I think probably the public relations is going to win out in the end. The Army charged her with being absent without leave because she did not go back to Iraq. She was caught between a rock and a hard place. The court said one of the two parents, either this sergeant or her husband, had to be there. Both were being deployed back to Iraq. She said she had to take care of her children. She is caught in that legal quagmire there.

The Army is kind of signaling, I think, even today that they are going to try to resolve it without going to legal action. That's the smart thing to do, just as they did with the sergeant charged with cowardice last week.

O'BRIEN: Yes, I think there's probably a lot of people in the field who are just kind of reading the rules and regulations, and perhaps once it gets filtered up a little higher, they say, wait a minute, the letter of the law here may not be the best way to go.

SILLIMAN: Well, I think you're right, Miles. And keep in mind that a lot of the polls are now showing that the morale of our U.S. troops in Iraq is not the highest. As a matter of fact, some are suggesting that perhaps 50 percent claim that the morale over there is bad. This is not the case that the army Wants to take and make public about really prosecuting a mother who is concerned with her young children. It's a no-win situation for the Army. They need to back off.

O'BRIEN: All right, there are some battles that perhaps the Pentagon shouldn't fight. I guess we're seeing that. Scott Silliman, Duke University, always a pleasure hearing your insights on the law and the military.

SILLIMAN: Thanks, Miles. A pleasure to be with you. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com