Wartime Detention Camp or Civilian Lockup?

This is a partial transcript of "Special Report With Brit Hume," June 20, 2005, that has been edited for clarity.

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(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Go down and take a look at Guantanamo. About 200 or so have been released back to their countries. There needs to be a way forward on the other 500 that are there. We're now waiting for a federal court to decide whether or not they can be tried in a military court, where they'll have rights, of course, or in the civilian courts. We're just waiting for our judicial process to move — to move the process along.

(END VIDEO CLIP)

BRIT HUME, HOST: One thing that judicial process has determined is that those captives at Guantanamo Bay can have access to U.S. courts to challenge their detention. So what is Guantanamo Bay, a wartime detention camp or a civilian lockup? And what rights do those prisoners actually have?

For answers, we turn to the former U.S. attorney general William Barr, who served under the first President Bush and who testified on this issue last week.

Welcome.

WILLIAM BARR, FORMER U.S. ATTORNEY GENERAL: Thank you.

HUME: So the Supreme Court has said that these detainees at Guantanamo Bay have access to U.S. courts. What does that mean? How did they find that? And what does it mean?

BARR: Well, all they found was that they're under the statute that created the habeas corpus writ.

HUME: Habeas corpus writs are ones where — habeas corpus means we have the body, and if you have — somebody is in captivity, they can challenge it.

BARR: Right. All habeas is, is it goes to the court and says, "I am being held without any legal authority," and the court goes to the executive and says, "Under what authority are you holding this individual?"

Now, historically, in the criminal law context, where we're enforcing our laws against our own people, the executive has to show that they've conformed with all the requirements of the criminal law. But in the military context, all that would be required is showing that this is a foreign person who has no connection with the United States, and I'm holding him because it's our judgment that we encountered him on the battlefield and he's an enemy combatant. And that should be an end on it.

HUME: Before the Supreme Court decided this in — I guess it's the Rasul case, which involved one of these detainees, had the habeas corpus provisions ever before been held to apply to foreign enemy combatants being held by Americans anywhere?

BARR: No, it had not been applied. And in fact, in British common law, it did not apply to enemy prisoners. So the Supreme Court's decision really focused on a technical issue of the statute.

HUME: In other words, what this court said, "The way we read the statute — and the only way we think it can be read — that for before or for worse, habeas corpus does apply. They can come to court and petition."

BARR: Right. And that's all it says. They can petition. It doesn't say what the standard are or what rights they have as enemy combatants. And of course, what's going on with a lot of the critics is they're fundamentally confusing the context of our domestic law enforcement versus fighting a war against an armed foreign enemy.

HUME: How so?

BARR: Well, we wrote a Constitution not for the world but the people, the American people. And we made the decision when we set forth in the Constitution that, when the government is enforcing the laws, our own domestic laws against the people, we're going put checks on the executive and we're going to insist that they get it absolutely perfect, no mistakes. It's better to let guilty people go free than to make a mistake. And so there are these hurdles that have to be jumped over when we are disciplining a member of own body politic. But when a foreign enemy comes and attacks the people, there is no neutrality. And what the Constitution is worried about there is winning the war and the effectiveness of the government. And we cannot hamstring the military by imposing all the standards that we apply domestically to law enforcement.

HUME: Well, based on what's happened so far, though, how can you be sure that when these habeas corpus petitions begin to be adjudicated by American courts under the Supreme Court decision, that all sorts of rights may not be found to exist for these prisoners?

BARR: Well, I don't put anything beyond this Supreme Court. And of course, it is a worry. But I think the more they look at the situation and historical practice, they would see that it's completely untenable to start treating foreigners, who have no connection with the United States, you know, due process rights and so forth, that would say, "You have to have an evidentiary hearing to determine whether you were captured properly in the first place." You can't fight a war that way.

Now, I will say, and this is where the critics are completely off- base, notwithstanding the fact that there is no constitutional right to a evidentiary hearing for enemy combatants, the administration's giving them and has established a process in Guantanamo where there is an adversary hearing. And they've actually established a preponderance of the evidence standard, much to my surprise.

So they are giving them more due process that could ever be granted them, as a matter of law. So they are getting the due process as to whether they're enemy combatants.

And then, of course, there's the question of, you know, under what conditions are they being held? And should they enjoy the privileges of the Geneva Convention? And of course, they should not enjoy the privileges of the Geneva Convention.

HUME: Why not?

BARR: Because the whole purpose of the Geneva Convention was to offer privileges to countries, the soldiers of countries, that honored certain obligations, and the main one being protecting civilians by not mixing in with them and differentiating yourself from civilians, so that there are no civilian casualties and minimizing them, and also, not attacking civilians.

It's a privilege. And the idea that we would take terrorists, the very antithesis of the people who deserve the privilege, and say, well, you know, yes, you can go out and slaughter civilians, and you can hide amongst them, and we're going to treat you as if you're honorable combatants, is preposterous.

HUME: It sounds as if the administration is well on the way to having a setting in which these prisoners can challenge their detention and have lawyers and rights and so forth. My thought would be, when you capture these prisoners and hold them, does that — I mean, we don't necessarily do it because we think they committed a crime.

BARR: Right. It's not punishment. It is — you know, it's always been the case — when you are waging war, you are trying to destroy the enemy, destroy them by either killing them or, in lieu of killing them, capturing them and taking them away from the battlefield and holding them until you can impose your political will on the enemy. And we have done that for 235 years in this country.

And you know, World War II is an interesting example. Four hundred thousand Germans and Italians were kept in the United States. They didn't go to — have access to courts. They weren't able to say, "Hey, gee, I was an East German labor battalion. I didn't mean to be in the Weimar."

HUME: Good to have you. Thanks. I hope you'll come back.

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