Transcript: Marjorie Cohn. Supreme Court Decision on Habeas Corpus for Detainees. Jun 12th 2008

Thom discussed the Supreme Court ruling that detainees at Guantanamo have the right to Habeas Corpus with Professor Marjorie Cohn.

Thom Hartmann interviews Professor Marjorie Cohn, 12 June 2008

[Thom]: Marjorie Cohn is with us. Marjorie, we were just talking with Ralph Reed. In fact, I'd intended to ask him about the Supreme Court decision, we just never got into it. He was so busy telling us that we have to strike Iran. Marjorie is president of the National Lawyers Guild, professor at Thomas Jefferson School of Law, where she teaches criminal law and procedure, evidence, and international human rights law. She's also the author of the new book "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law". You can find all about her and her books and everything else at and Marjorie, welcome.

[Cohn]: My pleasure Thom, as usual.

[Thom]: We always love having you here.

You are the person to go to for anything that has to do with the constitution, particularly the Supreme Court, here. Just this morning this, the news story breaking, in a five to four vote, Anthony Kennedy the swing vote, writing for the court, saying, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Already the headlines are showing up on the right wing blogs, "Supreme Court votes for terrorists".

[Cohn]: Well, of course and that's what's Scalia says as well, but, you know, we're not talking about protecting the United States against terrorists here. The overwhelming majority of men and boys who were taken to Guantanamo had nothing to do with the war on terror or Al Qaeda or Taliban or anything else...

[Thom]: Right, and in fact, let's...

[Cohn]: They were sold as bounty to the United States, many of them for 5,000 a head.

[Thom]: Yeah which is, you know, the equivalent of hundreds of thousands of dollars in US money in terms of what it can buy you; years of a decent lifestyle in Afghanistan. Let's explain what the decision is.

[Cohn]: OK. The Supreme Court held that the Guantanamo detainees have a constitutional right to habeas corpus to test the legality of their detention. And that the current scheme for reviewing the designations of enemy combatant,

Combatant Status Review Tribunals is not an adequate substitute for habeas corpus. Basically what the Supreme Court did was to overturn a provision of the Military

Commissions Act that stripped the Guantanamo detainees from habeas corpus and they said that you've got to give them habeas corpus, which means taking them before a neutral independent federal judge and deciding whether they're being correctly held as enemy combatants. You either have to get in habeas corpus or come up with an adequate substitute procedure for habeas corpus.

[Thom]: Right. That substitute procedure part gives me the willies because habeas corpus is pretty explicitly in our constitution. It shall only be suspended during times of insurrection or invasion.

[Cohn]: Yeah. Well, there's two different issues here, Thom. One is whether or not the prisoners at Guantanamo have that constitutional right to habeas corpus under the suspension clause, and a majority, five justices of the Supreme Court said yes, they do have a constitutional right to habeas corpus.

[Thom]: Right.

[Cohn]: Then the second issue is, given the fact that they have a constitutional right to habeas corpus, is there an adequate substitute for habeas corpus? Is there another procedure that will give them the same protections as habeas corpus? What the Congress had said, and this was the Republican controlled Congress, in both the Detainee Treatment Act and the Military Commissions Act, was to set up a procedure to, for a federal court to review the decisions of the Combatant Status Review Tribunal. The Combatant Status Review Tribunal are worse kangaroo courts than the Military Commissions. Military Commissions are criminal courts set up to try people at Guantanamo for crimes.

The Combatant Status Review Tribunals are kangaroo courts to decide whether someone's an enemy combatant. You have no right to counsel, only a personal representative who can argue for the government and doesn't have to keep confidential anything you say. And then once you get, so say you're found to be an enemy combatant under the Combatant Status Review Tribunal, then you can go into federal court, but the limit, but the review in federal court is limited to the issue of whether the Combatant Status Review Tribunal followed its own kangaroo procedures.

[Thom]: Right.

[Cohn]: The federal court can't say, 'this guy should be cut loose, he's not an enemy combatant', and that's ? .

[Thom]: Right. Isn't isn't the bottom line here, Marjorie Cohn, that the court, and we have just a minute left, I'm sorry, that the court ruled this morning in a five to four decision that the constitution still stands as the ultimate law of the land, the rule of the land in the United States? And that if any of these these five members who voted in favor of it, I mean, this was a five to four, if any of these are replaced by right wingers, if McCain becomes president, this will fall?

[Cohn]: Precisely. This case is the poster child for how delicately the court is now balanced and the disastrous consequences to the doctrine of separation of powers that await us if a president McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

[Thom]: Yeah, because these guys just, they, well, Chief Justice Roberts said this is "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants". The phrase enemy combatants doesn't even appear in the constitution.

[Cohn]: No, it does not.

[Thom]: And habeas corpus is not, and all constitutional privileges are not just limited to citizens; it's people. I mean, it's just, anyway.

[Cohn]: Every person, precisely.

[Thom]: There you go, Marjorie Cohn, read all about it, her website. Professor Marjorie Cohn, thanks so much for dropping by.

[Cohn]: My pleasure, Thom.

[Thom]: Always great talking with you.

Transcribed by Sue Nethercott.

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