tv Book Discussion on The Terror Courts CSPAN December 30, 2013 9:55pm-11:06pm EST
we do that. it's very common for the court to say about an earlier time while they were hysterical and panicky but now the threat is real. even though they might have been overreactive and our reaction is reasonable. that's one thing that is help a lot and the other thing is just to realize that when these issues become personal, when we are not talking about people on the fringes of society but when people you know are affected or people you can imagine being affected then i think free speech becomes much more salient for all of us. >> we have all kinds of questions. robin has the mic and she's going to walk around. please give your name and then ask your question. >> rick sachs. thank you so much for that talk, very intellectual and very smart
you talk, i like that. so my question then would he part of what you are talking about oliver wendell holmes was sort of mentally above it all in a sense of like that. is that a major area to freedom of speech across the world like you know this dictator, we don't like this that a good thing because they seem to be above it all and we can bring it down to our level by physical force as we can talk like oliver wendell holmes. we can ring it down to our level by physical force so was that a great narrative to freedom of speech back then and now? >> the detachment and the difficulty breaking through to people. i suppose it could be. on the one hand it seems like your question gets at, should we be engaged in more aggressive diplomacy is supposed to force as a country clacks on the other hand, the question might be
taken to ask you now is what it takes to advance free speech or for free speech to become personal to people? to the extent that that is what you're asking i think that is kind of the case. i think that's the case with lots of -- lots of legal issues. the justices of the supreme court are people i suppose but they are relatively removed from the concerns of most of us and i think that any time they can understand the sort of her small consequences of legal questions you know their decisions are going to be more formed and hopefully more accurate. so yeah i do think that kind of detachment or having your head in the clouds is certainly a barrier to a deeper understanding of free speech. >> you mentioned in the book and you mentioned today in the book that thomas healy served three
times in the civil war and you mentioned frequently how his experience affected the way he looked at the world and the paragraph that you read to us is a fairly harsh view of the world it's things that we are going to fight a lot but his position is that's part of the democracy. we have to scream at each other and it's better to scream at each other because of better result will come out. >> absolutely. >> that's hard to accept. >> not only is it okay to scream at one another but it's okay to kill one another at the other fellow disagrees. he ultimately realizes if we are going to have any kind of confidence in the decisions we take we have to hear all viewpoints. that's the only way in which we can feel assured going forward in our decisions but yes it starts off with this harsh view of the world that's informed by his experience. fighting his fellow countrymen. what is that the disagreeing and
killing the other fellow when he disagrees. >> holmes was about 78 when he wrote that opinion. i wonder if you would comment. do you think there is anything to factor in on the basis of advanced age? 78 in 1918 is two days 90 and i wonder if you would comment about this? i think it's a little bit different from time on the court for time as a judge and so on. >> while i don't think if what you are asking is whether holmes was becoming soft in the head or anything like that, holmes is very sharp at this point and he continues to be sharp for a number of years on the court. if what you are asking is whether sort of approaching
mortality makes holmes more sensitive to his legacy or his personal relationships, i think that's certainly possible. i think that these young friends certainly gave him a new lease on life and he was certainly very susceptible to their influence in a way that he might not have been at an earlier point in his life. he later reminisced about this. making his life as being the happiest or the stretch of five or 10 years when is going to the house of truth is aiming one of the happiest periods of his life does that have something to do with his age? i suppose. maybe at this point he is no longer busy trying to get somewhere or accomplish something. maybe he is more in the moment and that's a good possibility.
>> my name is eric gross and i want to thank you both for this presentation. to what extent was holmes and/or his contemporaries and predecessors on the court influence by the technical framers of the constitution? >> a very good question. in general holmes was not what one would call today and originalist. holmes could be in an involving constitution and the people who wrote the constitution could not have imagined that being that they had brought forth and so i don't think in general he was driven by a kind of obsession with what the founding generation would have thought. remember too that holmes is not as far away from the generation as we are being born in 1841 and
you know potentially having known members of the founding generation or met members of the founding generation, they might then less of a sense of oh there's this distant past that we have to get in touch with. holmes might've thought he was very well in touch with that past because it wasn't too far past. that said, there is an aspect of this decision in which he does rely a little bit on early developments in our history. when holmes writes that this is the theory of our constitution, the idea that that test of truth is the ability to get accepted in the competition of the market. he has to contend with the fact that in 1798 the country passed the sedition act of 1798 under which people were prosecuted for
criticizing the government. what holmes does in this opinion was this opinion was the refudiated at jefferson when he took office and by congress when congress repaid the fines have been levied on the sedition act of 1798. he does at least in that way rely on some earlier history to support his assertion that it's the theory of our constitution that we should let ideas find out the competition of the market. >> i think you mentioned briefly mrs. holmes had an interesting view on rights in general and on the role of the judiciary in protecting individual rights. you mentioned it briefly but it's just so important. >> it's one of the things that makes this decision so surprising.
holmes is one of the early advocates of judicial restraint. the idea that judges should not stand in the way of what the majority wants to do. they shouldn't use individual rights as the racist to strike down what the elected officials in the white house and the state legislatures and the congress had decided. there is this line that he liked to repeat that said my fellow countrymen, i will help them. it's my job. he didn't think it was the role of the courts to stand in the way of with the majority wanted to do. that's one of the reasons he was a hero to young progresses. in the early 20th century constitutional rights were often used to strike down progressive legislation, progressive labor laws in particular. holmes had dissented from those decisions not because he supported progressive labor registration, he didn't care but does the thought that courts had
no business tracking down with the majority wanted to do. that's the perspective that it starts with and why it's so surprising that he then turns around in this context and says well now we should strike down with the majority did. the majority struck down the alien sedition act and the rossa kidding judge thought as a court we should step in. this is the beginning of what becomes too known as the double standard constitutional law where courts scrutinized very closely regulations of private activity, speech, reproductive rights and that sort of thing. but don't scrutinize closely economic legislation. all that has its roots in this opinion. >> good afternoon professor. listening to you and with the
rest of my knowledge just a holmes, he was right there at the beginning of the generation. he was reviewing that idea like pragmatism so the speech was having an educated opinion about those inspirational things that he believed in. so fast-forward to the baby boomer generation who one way or another rushes into extent to lytham and there is the next-generation.
so for existential philosophy you don't have to have that -- you don't have to do your work. you just have a shortcut and if you're not happy about it --. >> yes it's a very interesting question. basically it sounds to me like you are comparing on the one hand pragmatism and on the other hand ideology. pragmatism is in some ways presented as an absence of ideology. an idea is good if it works just the way the fork is good because it helps you eat food. palms is very much a part of the development of this notion of adventism. there's an excellent book called the metaphysical problem which counts the development of pragmatism in this country
during the stories of homes and liam james and other individuals in the mid-to late 19th century america. holmes does reject ideology. he saw what ideology is. he saw the horrors that ideology produced so he is very skeptical of the notion that there were some objective truth out there and you can see that theme very prominently in its opinion. it's because of skepticism about objective truth that we have to allow people to speak. but we think is the truth today we may discover tomorrow is not the truth and the only way we will find out is if we keep the debate and the discussion going. i think that people who are more ideological and think no, i've got the truth ,-com,-com ma they are less patient with that. their view is well, this is the truth and i don't need to hear
what the other side says. i can shut down the debate because i have already arrived at the truth. i do think that there is a sort of tension there for a conflict between pragmatism and ideology and i think holmes' of opinion rep resents the more pragmatic view of things. yes, he certainly believed that your opinions had to be informed and more importantly your actions have to be informed. that is why it's okay to act in the face of uncertainty. he wasn't saying well just because we can't know the truth means we don't interact. just the opposite. he thought yeah we had to act and even if we are not sure of the truth we still have to act but the one way in which we cannot act is to suppress speech because it only having heard all the ideas that are out there can we be confident that the action
we are taking is the best we can make it this given point. >> i think most progressives feel education was crucial to that debate and we are having debates about the level of understanding that we have in our debates today. i don't know if you want to comment on that as a journalist. what you are trying to do often is educate us about some of these things but i think it's a relative question that the context was different then in some ways what we are struggling with today. >> i don't know if people are less interested in gathering information today. it seems to me that we have very lively debate and discussion in this society. i guess maybe there is you know a little bit more, a lot more partisanship and people sort of segmenting off. you have got the people who listen to "msnbc" and maybe they
are not talking to each other in the way they should and maybe that is a concern. i think that was -- there was less of that than although it's hard to know. >> you right. >> hello. i was wondering, in this day and age there are so many different ways to push her opinion like via social media and things like that. i was wondering would you say there is still at all any kind of punishment for hoisting an opinion that's unpopular, maybe not as extreme in 1919 but would you say there is? >> well we have come a long way. we don't have an stored married protection for speech in this country and for the most part i think it's fair to say when you can be punished merely for the ideas you have expressed, the supreme court has done an admiral job in protecting
unpopular speakers. the debate we are having now is more about how can we get the information we need to have an educated debate? is edward snowden being prosecuted or has he been indicted because of his ideas or because the government needs to be able to enforce the laws against leaking classified documents to maintain national security. you know there may be a little bit of the former but i think it's mostly the latter. bradley manning i think is in the same situation. now, going after them as aggressively as the government did and seeking the kind of punishment that the government sought might suggest that they are selectively targeting people who are challenging what they have done and that is certainly
worrying. you know the social media is an interesting part of the equation now. that's very interesting in the context of schools and student speech and that is raised all sorts of questions. to what extent can students be disciplined in school for things that they put on facebook at home when the students are accessing facebook at school so it's having a disrupt that effect. the social media i do think has greatly expanded our ability to speak and in some ways democratized our ability to get our message out and raised at the same time lots of tricky questions. >> jeffrey abelson. what was the general reaction to his opinion from his fellow justices and also general opinion of academic and population?
>> holmes writes this dissenting opinion and he always writes his dissents before the majority opinion has circulated because he wants to have it ready to go. as soon as he gets the majority he can distribute it to his colleagues. everything was sent out by messenger said the gets the majority opinion and he senses to center out. we know this because he writes a letter to a friend that he had just sent around the descent and the next day three of his colleagues show up at his home. they are led up into his study and in the presence of his wife they ask holmes -- the court has not issued the opinion yet. it's going to be issued the next week and these three members ask him for the sake of national security not to publish the descent. they are worried that coming
from that figure is venerable as holmes is several war veteran and his whole family that this will give aid to the enemy and lead to the country's resolve in the fight against the red menace. holmes listened very patiently to their requests to a very civil discussion and sometimes even affectionate but ultimately he says no. we know about this because when they are led up into his study, he tells his secretary to stay in the adjoining room. that is where the secretaries were. as terry hears everything that is said in the secretary is close friends with dean acheson who is that your secretary to justice brandeis and years later dean acheson writes a memoir of his early years in washington recounts the story. that was the reaction on the court. brandeis joined the opinion and
supported holmes. and the public the reaction was mixed. progressives were ecstatic, praise this. the editors of the republic published a tribute to holmes. they published his dissent in full. all of holmes' friends right in these incredibly poignant emotional letters of gratitude to holmes. in academia it's received less well. one of holmes' sort of long friends john widmar repressor of low rates this just scathing critique of holmes' dissent and allow review article and basically accuses holmes at being naïve and unaware of the threat that the country faced and a number of other people say things along those lines.
so it's mixed. it's a dissenting opinion so even though people, some people were upset, it didn't have an impact right away. their concern was that it ultimately would have an impact. they could see he was very powerful and that is what whitmore is worried about and of course he was right to be worried. although it is a dissenting opinion it ultimately carries the day. it takes a little time but ultimately the court invokes holmes dissent as a foundational statement about commitment to free speech and he sort of takes this place in our culture that it has today. >> what's the justification for suppressing any speech since the first amendment makes no such distinction? the first amendment says the government shall make no law abridging the freedom of speech. it doesn't talk about good speech or bad speech or dangerous speech or anything
like that. so where'd you get all of these theories exist the court goes through dozens of theories on what speech is not protected. >> it's a great question and i once asked my students the exact same question. so you are a close reader of the first amendment that says make no law and justice hugo lack used a site that all the time. make no law. it doesn't say make not too many laws are made of bad laws. it says make no law. an absolutist of the first interpretation is not possible. they're too many many ways that speech is used that most of us think should not be it. throughout a few examples read perjury. perjury is using speech. is it protected by solicitation
to murder? these are always that we use words and suggest that the mere fact that you do these things through words means to protect it would be problematic quick holmes deals with this problem himself. not in the abrams dissent at eight months earlier in an earlier decision. he provides us an example and he says that free speech would not protect a man who falsely shouts fire and it crowded theater as an example of why we can't adopt an absolutist interpretation. why is that a good example lacks for one because harm will result you have a crowded theater and someone shouts fire there'll be a a rush to the door but more importantly it's a good example because the harm that will result will result immediately before we have any chance to avert the harm. so that forms the basis for
holmes's he ultimately adopts which is the clear and present danger standard. you know it from tom clancy before tom clancy made it famous it was a line in the holmes opinion and the idea is that speech is protected unless it poses a clear and present danger meaning unless the danger is one that we can divert in any other way. and you can't avert the stampede in the theater in any other way other than to say about it time it's against the law to do it. so you now i think it's very hard to adopt an absolutist interpretation of the first amendment. the problem becomes then how do you figure out what's protected and let's not protected and that is what gives people like me a job, to come up with theories and explanations. >> talking about a different character in the book that you didn't mention.
learned hand, a wonderful name for a judge. so he is not a young person. he's a middle-aged person. he also plays a role in justice holmes changing of his mind. can you talk about that a little bit? an interesting interplay of judges and this question. >> learned hand was on on the federal district court at the time. he was in his mid-40s. he was a very well regarded judge of the philosophical event. he hears one of the first cases in the espionage act and one of the first judges to interpret the act and deal with these free-speech questions that it raises. he adopts a very narrow construction of the espionage act so as to leave a lot of room for free speech. and he does this before holmes writes in a these opinions. the hand is reversed by the second circuit that he's upset
about this and he thinks he was right. it's really hand that starts this whole process among these men in trying to change holmes' mind because the two men meet in the summer of 19 -- 1819 just by chance on a train between washington d.c. and boston. maybe hand is going from new york to boston. they run into each other in hand starts talking to holmes about tolerance and holmes' response is strike the hand -- he can't believe holmes has said this and he doesn't know how to respond. holmes runs away and goes to join his wife as they pull into boston. hand follows up with a letter to holmes and which you makes a more sustained case for tolerance and holmes responds in a carry-on correspondence over the next year about free speech.
hands deserves a lot of the credit for getting the whole process started. >> we have time for one more question. you point out in the end of poignant story about hand and how his life turns into a different direction on the issue of the first amendment. if you could share that. >> in the epilogue i tie up loose ends of the other characters and what happens is although the country moves any more tolerant hand goes the other way. in the late 1940s he is now the chief judge of the second circuit and he gets a case involving the members of the communist party of america who had been prosecuted in the smith act for teaching the principles of lenin and marx. hand upholds the conviction and essentially guts the clear and present danger test holmes had articulated several decades before. so the question is why does
hands change his mind in the opposite direction? >> answer is that as his career progressed as a judge he came to believe more and more fervently in the idea of judicial restraint and came to believe that protections of the bill of rights were merely monitory and they were not judicially enforceable, even criticized the supreme court's decision in brown versus board of education arguing that the court shouldn't be imposing its new equality on the country. it really stemmed not from his support of mccarthyism. he was horrified i mccarthyism. he simply came to believe even more strongly than he had earlier that it wasn't the role of judges to interfere with what the result of the political process was. >> one of the lessons of that is what holmes says. we always are contested and it will never be perfect.
that is why it's important we continue to have these conversations and that is why we need to have these kinds of books. thank you thomas healy. the book is "the great dissent" how oliver wendell holmes changed his mind - and changed the history of free speech in america. as robin mentioned thomas will be signing books downstairs in the lobby and i hope you will join him there in getting a copy. >> thanks so much. [applause] [inaudible conversations]
>> i've been involved in politics for 40 years in one way or another. i worked on the reagan campaigns and worked in his administration for eight years. the fact of the matter is i've never seen so many people quoting and waving around the declaration of independence and the constitution. many a few 10 years ago, you never gave a second thought. now all that is at the front of your minds. and it is with tens of millions of us. the fact of the matter is, tens of millions of us love this country. we don't want it fundamentally transformed so we have to get to his as many other people as we can, wake them up and educate them. the truth is and i'm not trying to pass myself on the back. that's the purpose of being an attorney i consider part of the purpose of my radio program as
minutes. >> so i would like to begin by welcoming everyone to the first constitutional conversation of 2013 put on by the constitutional law center here at stanford and it's my special pleasure to introduce our guests for tonight, jess bravin of "the wall street journal" and author of the recent book, the terror courts on sale i should add that better bookstores everywhere and even the stanford bookstore. so you may want to grab that. this is probably the most serious account of what has actually happened in the court system in guantánamo in a series of trials that have been taking place there. i'm not going to trespass on the
subject matter because jess is going to give us a good taste of what he has been writing about, but i did want to introduce just the person. he is someone i got to know a few years ago when we were both traveling from washington d.c. to williamsburg and the amtrak train broke down and we grabbed a car and rode down together and had just it an extraordinarily enjoyable time. jess is as i think most people know, one of the leading legal reporters in the united states but what they may not know is he is a person of extraordinary humor and wit. so i want to expose a little bit of that to you right now because when he was in college at harvard, he was roommates with
with -- wait, wait don't tell me and they were not "the harvard crimson" crowd. they were the harvard lampoon along with the head of the lampoon at that time, conan o'brien. i have been told this elaborate story and i'm not sure i'll be able to get all the details right about he and his cronies contriving to a range an invitation to harvard to speak as a man of letters, the actor who played robin in the movies. while he was there, somehow managing to pilfer his robin costume and then pretending to be the penguin i think it is and negotiating for the return of this costume to the great culinary of the entire campus.
well, that ask one of, many dramatic representation of the military commissions project at guantanamo. one thing that we learned from it the people involved are extraordinarily good looking. it's actually from the television show, j.a.g., which no longer on the air. but it would take it storylines from cases mainly military cases that took place. and that episode, called "tribunal" aired in april of 2002. so president bush issued an order authorizing military commissions in november of 2002, and by the next spring, one had one already took place on television on the show. surprisingly, i read the script. it anticipated many of the issues that really take place at
military commission and some which are taking place right now. i thought i would point out that the thing they're talking about over their delicious salad is the exclusion of u.s. citizens from military commission trials. that's an issue on appeal right now. but the book -- the terror court. on the cover we have a bunch of people dressed as detainees, a news photograph taken from one of the protests that coward in washington regarding this project. but is the book is really not about terrorists. tps. not that much about detainees except as much they are involved in the system that americans have set up. the story that i wanted to tell
was about the americans and the american values as expressed to the legal system at the time of crisis and national emergency. what we learned is really bedrock to our view of the law and the legal process. and what is really more disposal depending on the circumstances that we face. the story, you know, to step back for a minute, a couple of years ago attorney general holder now, he was going hold the 9/11 trial in manhattan in the southern district of new york, and the five codefendants would be tried on -- under u.s. code in the federal court house. there was a big political uproar about it. there was very little public and support for what the attorney
general wanted to do. eventually the obama administration decided to reassign the defendants to a military mission at guantanamo bay. through that months' long controversy, there wasn't were exploration of what military commission at guantanamo bay actually is. they pretty much -- pretty much pretty much boiled down to military courts are tough. civilian courts presumably, are weaker, and gavin choice who you want to deal with alleged terrorists and enemies of the united, well, it seems like you want the tough guys to deal with them. there was not a lot of discussion about what military economieses are. how they operate who runs them. those sort of questions, which i think are important for americans to consider when
deciding whether this is an experiment that we want to continue or expand, or ther or drop in the years going forward. so this book is really a story of development of this project as told through the number of individuals involved in it. people who are policy makers at high levels of government. some are judges. but mainly it's about the group of military and law enforcement officers who found themselves instructed to carry out this project over the past ten years. and to do so under difficult circumstances. and in particular, in finding around every corner a lot of presumptions about the way legal system work and what american legal values are challenged.
the question just to back up for a second. having worked on the book for ten years. i forgot the idea that i had to explain what it was to people. so let me step back for a second there and say that the individuals who were involved in this project at the frontline, the military officers were people who had experience in courts march in trying the sort of ovens that gone on and military bases around the world. those tend to be things like domestic violence, drug crime, larns. things like that. they didn't have at lough experience with national security stuff and complicated conspiracy charge. they did know a lot about the history of military justice particularly after world war ii. and the tribunal and the following tribunal run by the united states and the kind of example that was set in
retroprospect has a pretty good reputation for the way that vick fors treated the defeated enemy. that image of post war trials also animated people at the top of the policy chain officials in washington who developed this system. they did not follow many of the rules that civilian courts is since embedded in the criminal procedure. so for people in the white house and some in the department of justice and department of defense going back to the model was seem to be a way to avoid a lot of developments in the through a had taken place since world war ii. and so when president bush
issued his order in november of twufn it was striking in the way it resembled the order president roosevelt issued in 1942 involving the nazis that harm commander harmon. that was his name? whatever. ther. was updated from man. of it a concession to the 21st century sensibility. there was not much else. it was about it. as long as evidence was probe toif a reasonable person, it could be admitted. there was no other restribs or rules. and it explicitly stated that no
existing body of law would govern proceedings at military commissions. or the uniform code of military justice. and added that no person who he designated for trial would have the privilege to appeal to any federal state, foreign or international court. so the idea was to have a system of justice that really was starting from scratch. and what i discovered in writing the book. it's hard to set up a system of just fries scratch. because people have to actually implement it start having questions about what to do. what type of evidence. what is reasonable. and what is fair. to be fair, the order also directed that the trials be full and fair. the book shows how many of these him tear lawyers grappled with the questions of what it means
to have a fair trail when you are doing so without any "rule book" at all. to guide you. in non-fiction. you often don't have the advantage of novelists of being able to create characters in situations that perfectly represent everything you want to go forward. but i came close with this book. i ran in to a marine officer named couch. couch was one figure whose experience in military commissions seemed to touch on almost all of the issues that continued to affect the project today. he had been -- well, like many heft from the south. north carolina. a conservative republican. he was the even jell call christian. the person who was extremely gratified by the election of president bush in twiew. he had been a pilot when he went
to the marine corps. he went to military law school. one of the flying buddy left the service and became commercial pilot. on 9/11 he was the co-pilot on united 175 which was one the hijacked planes. the one that crashed to the south tower. so for colonel couch when he was tapped to take part in military commission he a perfect alignment of reasons to do it seriously and to exact as much justice as he could for reasons for him that were patriotic and professional and personal because he had been touched by 9/11 in this district way. he had been a prosecutor for many years and had some of his own cases traumatized on j.a.g. one involving a deranged
parachute who cuts the cords on the parachute out the plane and fall to the death. of it somewhat embellished in the tv version. he was an experienced prosecutor. and the kind of dilemma he faced show the issues that couple when you make a system from scratch that presumably has no governing rules. i can go in to some detail about it later. i thought i might switch for a second and talk about how i got interested in this topic to begin with.
who knows whaptd next. my experience that cay and the next was very significant to me because as a news reporter i had to figure out what was going on. so i made my way to ground zero and i saw this completely transformed landscape. i noticed as season someone passingly familiar with some legal that the whole legal architecture around me had changed. there were check point. you couldn't go places. immigration courts were suddenly lowed. all kinds of things started happening. they started happening in
washington as well. when president bush issued that order in 2001. the guantanamo bay camp opened if january of 2002. and i was well, let's go to the next. the next clip, if we could, david. twice in january of 2002, i went to guantanamo bay. once with a press group to see the maybe the second or third group of detainees offloaded. the second time on january 28th on a more comfortable plane with defense secretary rumsfeld. and coincidence the good people of c-span are here too. here are a few clips from the trip. [inaudible]
[inaudible] as well as -- behind that -- [inaudible] the medical facility -- currently that's where all medical procedure of the detainee are happening. we are building a more permanent facility for the detainees. continuing to my right, you see two huts -- [inaudible] this is fly hut where supplies. one of the air-conditioning going in to it is integration facility. as well as these facilities further to the right. the secretary of deafen is scheduled to visit all the facilities inside there. come up and spin this way. above the hill of the living
quarters with the soldiers -- the military police are inside the camp. [inaudible] the detainees and -- [inaudible] internal and external security. see some of those -- [inaudible] [inaudible] the senators and secretary rumsfeld -- [inaudible] u.s. troops and went to press. [inaudible] i saw a portion of the television presentation of it house of commons.
i don't know how many of you did. [inaudible] when i go back to washington i'm going to write some of my friend there and suggest they bring some of the people who insulted our military over here to see this. [inaudible] world war ii seen a lot of worse placeses. and i lived in worse places than this. but i believe that the british parliament has done us a great disservice. the great disservice these young men and women are trying to take care of these people who -- [inaudible] and they're not war fighters of foreign nations. they didn't wear a uniform. they don't have patches on. they didn't wear a uniform. they don't have patches on. they weren't under military orders. they were volunteers in ab terrorist organization that said -- [inaudible] to try to destroy our country. i -- [inaudible] i sure -- [inaudible] i didn't expect to see them treated so well. >> are we there?
>> first of all, let me say what i'm worried about the -- [inaudible] not a long time, and it is going to be [inaudible] deal with the terrorist networks, they exempt -- there are thousand of people who have been trained to kill innocent people. not just americans but people across the globe. and the president is determined to -- [inaudible] was i cometting -- coming down make sure that everything was being done properly. i see now -- [inaudible] i knew it was being done
next the traveling press and perspective of the day. >> the story is not just -- [inaudible] he came here as part of a larger story about how the prisoners are being treated and how they'll be treated in the future. >> do you have any frustrations coming down here and -- [inaudible] >> yeah, of course, as a reporter you want to -- >> do you any frustration coming down here and not being able to see what -- [inaudible] >> yeah, of course, as reporter you want to see everything there is to see. you're the eyes and ears of the i are public at large and in a place like this, which is a military base, with, you know, completely isolated military base. everything we see is up to the department of defense and local authority here.
so they decided what they are comfortable laying -- and there's no way to get around. normally if you write about a prison they may not let you in. you can go to the guards near the prison and talk to the guards after hours. or you can go to the bus station and meet the relatives of the prisoners coming if and get their perspective. there are other ways to get it going on. here they can only see what they dpdz to show and hear what they decide to tell us. [inaudible] so the terror court to my effort is to get around that. and show you what it is going on in military commissions that they did not to decide to show us and did not decide to tell us. any questions? well, thank you for coming.
okay. well, let he bring you up to speed where we are with him tear commissions. this last week free trial hearings continued at some of the case at guantanamo bay. they will resume later this month. and the trial of the 9/11 alleged conspirators will begin sometime next year in the estimation of the chief prosecutor. but now the chief prosecutor was brought on by the obama administration is a regular general. he's by many account the most impressive figure to be associated with military commissions today. he was a scholar and harvard law school classmate of president obama. he was, at one time this is considered a prejudice use thing. he was a property jay of general petraeus. and he came in there with really the reputation of being perhaps
the best or one of the best military lawyers there currently is. and his -- when he talked about military economieses, he's discussed how sure they had some problems in the past but what we're dealing today is something very different than the first rather primitive order that came out in november of twufn. he points out the supreme court looked at this project and there have been two acts of congress that have authorized military commission trials. and the most recent one passed in 2009 and signed by president obama. added substantially more in his view protections to the defendants. military commissions today. he called them reformed military commissions. as posed to plain old classic military commission. or what they might have been before. are something that should not be confused with the most draconian and terribly unfair proceedings
that could in theory have taken place had the supreme court permitted the first version of the military commissions to go forward. but there is a sort of paradox. and the paradox is this. the cases that general martins has to deal, including the 9/11 case are all colored by what -- tremendous abuse of the prisoners in their view wholly illegal ways of obtaining evidence and in such a way that it would be, in their view, difficult to prosecute them in civil yab court. it may or may not be true. but each of the revisions to military commissions, everything that has made them more closely resemble civilian courts or courts marshall makes it that much harder to convict the defendants.
which toik make it possible to convict the defendants without affording them the kinds of procedure protection that make a conviction harder to get in civilian court. so when you get to a point where a military commission is, say, 93 brnt is fair as a u.s. court or what have you, then it does raise the question of, well, what is the point the court-martial or a federal court in the procedures what is the benefit to the united in establishing a separate expwrution is system with its own rules where the ultimate legitimacy of the conclusions remains in question. they haven't been blessed or rejected by the civilian court system and the perhaps the most
point they asked the military judge in guantanamo to rule that or declare that the constitution of the united states applies to proceedings there unless and the burden beyond the government to argue why it should not apply in any specific case. and the government's position previously was the u.s. constitution does not apply at all except in the has been use clause which the supreme court imposed. more recently the position is that there's need for the military court to address the question at all. it's before getting to the whole
discussion of whether or not that applies. and so here you have a court takes place, a trial taking place pretrial proceedings where the body of law that governs it remains intha -- somewhat a mystery. are they governed by the constitution. which part. if not, why not. and that, of course, makes it a fascinating story to tell as a legal reporter. all right. nathan, you want to handle the question splication? >> at guantanamo, we have some residents being brought to the trial, but we also have
stateless yemenis and people who were swept up and it was decided we're not a threat and could be released. what right closet they -- rights do they have to get out of guantanamo? >> well, that's an interesting point. what rights do they have? well, so far, i mean, these are people who have not been criminally charged. this is an important distinction. there are about 150 people held at guantanamo, but only about a third of them. the government estimates can be charged or will be charged with specific violences of the laws of war that the military commission can try. so what about the other people? some of them have been cleared for release. others have not. the federal court have not questioned the government's power to hold enemy prisoners captured during armed conflict. ..
>> tribal leaders wanted to be part of that and it seemed like he was a peacemaker. >> yes, originally the population at guantánamo was over 600 people at a certain point. it is true that the initial sorting of folks that were brought there was very rough and four military officials, if there is any doubt in their mind, they are not going to let someone go because there is no benefit if you are in charge of captains are people who have been turned over you by local forces. there is no advantage freeing someone who might end up being really dangerous. i mean, there is something about
this. if they turn out not to be dangerous and they are locked up anyway, there is less of an incentive with the freedom. but in this book i have tried not to talk about the broader question with enemy combatants or enemy fighters. i am trying to focus on criminal prosecution. but those questions do overlap in this way. and shortly after guantánamo bay was set up, the pentagon established the criminal investigation task force and the job was to prepare a detective squad for the guantánamo bay individuals. to turn him over for prosecution. and i interviewed a lot of those people and i looked at a lot of the records they came from another great cbs military seemed show and oth