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CNN Sunday Morning
Interview With David Rivkin, John Hall
Aired July 27, 2003 - 09:13 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.
HEIDI COLLINS, CNN ANCHOR: For the first time in more than 50 years, the Pentagon is preparing to hold military tribunals for prisoners charged with terrorism. And it's coming under fire from civilian lawyers who say if they take these cases, they're signing away their clients' rights.
Joining us to talk about all this are John Hall of the National Association of Criminal Defense Lawyers, and David Rivkin, former Reagan-Bush legal counsel.
Thanks to both of you for being with us.
DAVID RIVKIN, FMR. REGAN-BUSH LEGAL COUNSEL: Nice to be with you.
JOHN HALL, NATL. ASSN. CRIMINAL DEFENSE LAWYERS: Morning.
COLLINS: I want to ask first if we can determine, just quickly, kind of let people understand what a military tribunal is. David, why don't you go ahead and tell us a little about what this proceeding is.
RIVKIN: This is a proceeding in the military system. It's being established pursuant to the order issued by the president over a year ago. And pursuant to regulations issued by the Department of Defense this year, it is an institution.
And it's very important to underscore that it's not some kind of invention of this administration. This institution has been used throughout American history every time we've been at war. In fact, it was used by George Washington, even before the American republic. It was used in the Civil War by Lincoln. It was used during World War I by President Wilson. And it was used by FDR during World War II.
And the Supreme Court has explicitly upheld the constitutionality of military commissions in the leading World War II case dealing with German saboteurs.
COLLINS: OK, John, before we go on, do you agree with that assessment?
HALL: Generally, yes, but not in the way this particular type of commission is set up because everybody outside of the government who looked at these rules, at least from the defense perspective, decided that the entire concept of military tribunals, as they're set up under this particular order, from the Department of Defense, makes the entire commission unconstitutional, aside from the problems it imposes on defense counsel.
COLLINS: All right. We'll delve into that a little further. I want to go back to David for just a minute.
David, you actually say, after identifying for us what you see a military tribunal as being, that there is no way that you can try a terrorist in a civilian justice system. Why is that?
RIVKIN: You cannot do it successfully. And you should not do it successfully. I think that the fundamental problem with people who don't like military commissions, they fundamentally do not accept the proposition we're at war. When we're at war a different body of law applies.
There's a lot of due process, there is a lot of fairness, but it is a fundamentally different body of law. These are not ordinary criminals. These are not muggers, these are not rapists, these are individuals who have violated the laws of war. These commissions are going to be fair. There is presumption of innocence. There is the beyond-a-reasonable-doubt standard. People will be represented primarily by military lawyers, but there's an opportunity for civilian lawyers to be engaged as well.
And fundamentally those institutions are very similar to court- martials that, by the way, for centuries have been used to try American and British and Australian, French, German soldiers when they commit violations. So this is, again, a very fair justice system of a very good track record. It is different from a civilian justice system in some respects, but it is very fair.
COLLINS: John, do you think that these alleged terrorists can get a fair trial?
HALL: Well, I don't think there will be any fair trials. First of all, these trials are occurring under completely different circumstances than any other previous tribunal has been given us. Everybody else --
COLLINS: How so?
HALL: For instance, the Nazi saboteurs were in the United States when they were captured. In 1942, they were tried and executed within a month. The whole proceeding was in secret. Only afterward did people's notes get out, diaries got out.
In this particular case, everybody is muzzled. The people who are captured were captured in Afghanistan, brought to a military base, not on U.S. soil. And the unique status of Guantanamo Bay makes it seem like the government manipulated the place of the trial, in order to make sure that the uniform code of military justice does not apply.
Therefore, they have less due process rights. This case may be a death penalty case, but they may not know it until the opening statement. And our concern is that if this is a government that lives under rule of law, it needs to treat the people that it tries under the rule of law, lest our own soldiers be caught up in the same type of kangaroo court this is going to be.
COLLINS: But, John, under these current rules, what is it, in particular, that the troubles you?
HALL: Well, first of all, our biggest concern is the constitutionality of the overall proceeding and then the inability of a court to stand up and say, this is wrong. You can't do it. There's one reason why this case is not on U.S. soil.
RIVKIN: If I may, I thought we've just agreed that basic military commission process is constitutional, been upheld as such. As a matter of fact, I think that this particular military commission is going to function quite a bit better than the World War II military commission.
It's very important for your listeners to understand, these trials are not going to be in secret. In fact, I'm sure CNN and other news organizations are going to cover it.
Let's briefly look at the historical record. The last time we used military commission, on a large scale, was in post-World War II Germany. In the course of two and a half years worth of work, they amassed a conviction rate below that of that in federal district courts in the last several years. And they dealt with a pretty bad body of defendants, primarily mid-level and junior members of a Nazi regime.
We're going to have very conscientious jurors, people who take the obligations very seriously. We may not have O.J. Simpson style legal theatrics. But on a fundamental question, are these people going to get a fair trial? I have no doubt they're going to get a fair trial.
COLLINS: OK, all right. Unfortunately, gentlemen, we're out of time at this point. We want to thank you for being with us. John Hall of the National Association of Criminal Defense Lawyers and David Rivkin, former Reagan-Bush legal counsel.
Thank you, gentlemen.
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 July 27, 2003 - 09:13 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: For the first time in more than 50 years, the Pentagon is preparing to hold military tribunals for prisoners charged with terrorism. And it's coming under fire from civilian lawyers who say if they take these cases, they're signing away their clients' rights.
Joining us to talk about all this are John Hall of the National Association of Criminal Defense Lawyers, and David Rivkin, former Reagan-Bush legal counsel.
Thanks to both of you for being with us.
DAVID RIVKIN, FMR. REGAN-BUSH LEGAL COUNSEL: Nice to be with you.
JOHN HALL, NATL. ASSN. CRIMINAL DEFENSE LAWYERS: Morning.
COLLINS: I want to ask first if we can determine, just quickly, kind of let people understand what a military tribunal is. David, why don't you go ahead and tell us a little about what this proceeding is.
RIVKIN: This is a proceeding in the military system. It's being established pursuant to the order issued by the president over a year ago. And pursuant to regulations issued by the Department of Defense this year, it is an institution.
And it's very important to underscore that it's not some kind of invention of this administration. This institution has been used throughout American history every time we've been at war. In fact, it was used by George Washington, even before the American republic. It was used in the Civil War by Lincoln. It was used during World War I by President Wilson. And it was used by FDR during World War II.
And the Supreme Court has explicitly upheld the constitutionality of military commissions in the leading World War II case dealing with German saboteurs.
COLLINS: OK, John, before we go on, do you agree with that assessment?
HALL: Generally, yes, but not in the way this particular type of commission is set up because everybody outside of the government who looked at these rules, at least from the defense perspective, decided that the entire concept of military tribunals, as they're set up under this particular order, from the Department of Defense, makes the entire commission unconstitutional, aside from the problems it imposes on defense counsel.
COLLINS: All right. We'll delve into that a little further. I want to go back to David for just a minute.
David, you actually say, after identifying for us what you see a military tribunal as being, that there is no way that you can try a terrorist in a civilian justice system. Why is that?
RIVKIN: You cannot do it successfully. And you should not do it successfully. I think that the fundamental problem with people who don't like military commissions, they fundamentally do not accept the proposition we're at war. When we're at war a different body of law applies.
There's a lot of due process, there is a lot of fairness, but it is a fundamentally different body of law. These are not ordinary criminals. These are not muggers, these are not rapists, these are individuals who have violated the laws of war. These commissions are going to be fair. There is presumption of innocence. There is the beyond-a-reasonable-doubt standard. People will be represented primarily by military lawyers, but there's an opportunity for civilian lawyers to be engaged as well.
And fundamentally those institutions are very similar to court- martials that, by the way, for centuries have been used to try American and British and Australian, French, German soldiers when they commit violations. So this is, again, a very fair justice system of a very good track record. It is different from a civilian justice system in some respects, but it is very fair.
COLLINS: John, do you think that these alleged terrorists can get a fair trial?
HALL: Well, I don't think there will be any fair trials. First of all, these trials are occurring under completely different circumstances than any other previous tribunal has been given us. Everybody else --
COLLINS: How so?
HALL: For instance, the Nazi saboteurs were in the United States when they were captured. In 1942, they were tried and executed within a month. The whole proceeding was in secret. Only afterward did people's notes get out, diaries got out.
In this particular case, everybody is muzzled. The people who are captured were captured in Afghanistan, brought to a military base, not on U.S. soil. And the unique status of Guantanamo Bay makes it seem like the government manipulated the place of the trial, in order to make sure that the uniform code of military justice does not apply.
Therefore, they have less due process rights. This case may be a death penalty case, but they may not know it until the opening statement. And our concern is that if this is a government that lives under rule of law, it needs to treat the people that it tries under the rule of law, lest our own soldiers be caught up in the same type of kangaroo court this is going to be.
COLLINS: But, John, under these current rules, what is it, in particular, that the troubles you?
HALL: Well, first of all, our biggest concern is the constitutionality of the overall proceeding and then the inability of a court to stand up and say, this is wrong. You can't do it. There's one reason why this case is not on U.S. soil.
RIVKIN: If I may, I thought we've just agreed that basic military commission process is constitutional, been upheld as such. As a matter of fact, I think that this particular military commission is going to function quite a bit better than the World War II military commission.
It's very important for your listeners to understand, these trials are not going to be in secret. In fact, I'm sure CNN and other news organizations are going to cover it.
Let's briefly look at the historical record. The last time we used military commission, on a large scale, was in post-World War II Germany. In the course of two and a half years worth of work, they amassed a conviction rate below that of that in federal district courts in the last several years. And they dealt with a pretty bad body of defendants, primarily mid-level and junior members of a Nazi regime.
We're going to have very conscientious jurors, people who take the obligations very seriously. We may not have O.J. Simpson style legal theatrics. But on a fundamental question, are these people going to get a fair trial? I have no doubt they're going to get a fair trial.
COLLINS: OK, all right. Unfortunately, gentlemen, we're out of time at this point. We want to thank you for being with us. John Hall of the National Association of Criminal Defense Lawyers and David Rivkin, former Reagan-Bush legal counsel.
Thank you, gentlemen.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
