Panel Reviews Guantanamo Decision

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SEN. PATRICK LEAHY, (D) VERMONT: Today's Supreme Court decision is a stinging rebuke of the Bush administration's flawed detention policies.

SEN. LINDSEY GRAHAM, (R) SOUTH CAROLINA: I think the American public is not going to be pleased to hear that we have given al-Qaeda more rights than Nazis.

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HUME: What they are talking about is the Supreme Court decision which the court held today that the detainees at Guantanamo Bay, many of them battlefield combatants, some of them terrorism suspects as well, are entitled to the same habeas corpus, that is the judicial right to challenge your detention, in American civilian courts as American citizens are.

Writing for majority, Justice Anthony Kennedy wrote "The detainees in these cases are entitled to a prompt habeas corpus hearing," continuing later "The laws and constitution are designed to survive and remain in force in extraordinary times."

Chief justice Roberts dissenting wrote the following: "Today the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

So what about it? Thoughts on it now from Fred Barnes, Executive Editor of "The Weekly Standard," and Mort Kondracke, Executive Editor of "Roll Call," and the syndicated columnist, Charles Krauthammer, FOX News contributors all.

Fred, your thoughts on this ruling?

FRED BARNES, EXECUTIVE EDITOR, "THE WEEKLY STANDARD": Well, I found it quite alarming. In a narrow decision, they just--

HUME: 5-4, it should be noted.

BARNES: Yes, that's narrow.

HUME: I know. I was just pointing that out in support of what you said.

BARNES: And I found it surprising. And I found it a bit embarrassing as an American to think the signal that it sends of a country that is so weakened and decadent even that it won't defend its own military, it won't protect itself against clear enemies of itself.

And the other thing is, I don't see how this can possibly work. And the court, the majority didn't explain how it can work except they would have habeas corpus hearings.

But do you have to bring in a soldier who served in Afghanistan who grabbed somebody out in the field to come in to say yes, this is indeed an unlawful combatant who does not deserve to be released, or how it's gong to work?

And the Lawyers for these jailed terrorists can pick out any district judge in the country, and they can judge shop to find the most liberal judge who might rule in their favor.

And there was another point that I thought that Justice Scalia made very well in his dissent, and that is that there have been over 30 of these people released--over 30 who have been released from Guantanamo as being unlawful--as not being unlawful combatants, have gone back into the battlefield and killed Americans and Pakistanis and Iraqis and so on, and those were supposedly the good guys. Think of what the bad guys will do.

MORT KONDRACKE, EXECUTIVE EDITOR, "ROLL CALL": I was prepared to accept everything that Fred said and support the Scalia-Roberts point of view until I talked to one of the lawyers for one of the defendants today. And here's what I said--I will do this for the benefit of fairness and balance.

First, it doesn't apply to Khalid Sheik Mohammed and people like that who have been charged. When their trials are over and they get convicted, presumably, they will have an appeal to the district D.C. Court of Appeals, and presumably, if they are found, if that is upheld, they will go to the Supreme Court and have an appeal.

But this applies to 300 of these guys who have been there for six years, not charged with anything, no appeal rights at all, and their sitting there.

HUME: Wait a minute, they have the ability to challenge their detention in a court set up by the military, it's a military tribunal. That is no appeal rights at all.

KONDRACKE: No, but, according to these lawyers, it is, basically, an administrative procedure, and you can shop around if you don't like what one tribunal finds, you can get another one to be held.

They have never been charged with any crime. What will happen now is that a district court--and Fred's right, it is undetermined exactly what the rules will be, it will be up to the judges--but the judges will decide whether hearsay evidence will be admitted. They don't have to allow them to see classified information. They don't have to have whoever--

HUME: But they could.

KONDRACKE: They could. And it could be dangerous, I agree.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: We heard Senator Graham say that Americans will be surprised to learn that al-Qaeda has more rights than Nazis. Well, they will be shocked when they learn that al- Qaeda has more rights than a poor Mexican landscaper picked up on a sweep of illegal aliens in America.

This is not just perverse. The arrogance of this decision is astonishing. It overturns--it proudly says that for the first time ever it is granting the rights of habeas corpus to enemy aliens who are not on American soil.

It overturns a 1950 decision, which, in and of itself, had said that in all of American history this right had never been accepted or recognized, and before that, in all of the British common laws. So this is an invention.

The worst part of it is that it is in previous decisions when the court had chastised the administration over its detention policy, it had said that the Congress and the president ought to work together and find a remedy, which is what the Congress and the president have done in the Military Tribunal Act.

But what the court has now done is to overturn everything in that act before it even went into effect or practice. As Scalia wrote in commenting on this, he said it looks as if in urging the president and the Congress to actually solve this, the court was kidding in its previous decisions.

And according to one scholar I read, this is the first time in American history that in the middle of the war the court has overturned decision that the two political branches together, the president and Congress, had agreed upon in the conduct of the war. It has never happened. You could overturn a president's decision, but never a joint decision of the political branches.

What the court has said is that that it stands above all the other branches in granting a right that never existed and does not exist in this constitution.

KONDRACKE: The question, though, is what do you do with these guys, 300 of them, who have not been charged with anything and are not scheduled for trial--no, there is not a procedure--

HUME: Each of them is entitled to appeal to the military tribunal to challenge their detention. And the result of that can be appealed to the U.S. district court.

KONDRACKE: This lawyer claims that these guys have had appeals pending--

HUME: You can look it up.

KONDRACKE: I have looked it up.

KONDRACKE: One of the problems is these detainees have to be kept because the countries they're from won't take them back or, if they take them back, then they'll let them go.