DOWN BY LAW: Military Detainees in the War on Terror

Friday, February 20, 2004

Do enemy combatants in the war on terror have any legal rights? The United States now holds more than 650 persons captured during the war on terrorism at our naval base in Guantanamo, Cuba. The government is holding them indefinitely, without charging them and without offering them access to American courts or legal counsel. Is this legal? Do federal courts have jurisdiction in this matter, or do these detainees exist completely outside of the American legal system?

Recorded on Friday, February 20, 2004

Peter Robinson: Today on Uncommon Knowledge: detaining enemy combatants-- should we make a federal case out of it?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: in prosecuting the war on terror, does the government of the United States have the right to place enemy combatants in the clink and throw away the key? The United States now holds more than 600 persons captured in the war on terror at our naval base in Guantanamo Bay, Cuba. We are holding them indefinitely, without charging them and without providing them access to legal counsel. A couple of cases now before the Supreme Court ask whether such treatment is legal. The Court is expected to hand down its decision by this summer. How should the Supreme Court decide?

Joining us today, two guests. Erwin Chemerinsky is a professor of law at the University of Southern California. John Yoo is a professor of law at the University of California at Berkeley and a former member of the Bush Administration's Department of Justice.

Title: Down By Law

Peter Robinson: The Supreme Court of the United States in the 1936 case Valentine v. the United States, "The Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law." We are now detaining more than 600 persons captured in the war on terror at our naval base in Guantanamo, Cuba. We are holding them indefinitely, without charging and without providing them access to legal counsel. Is the behavior of the government of the United States toward those detainees, quote, I quote the Valentine case again, "authorized by law?" Erwin?

Erwin Chemerinsky: No, it's not. It's a violation of American law and international law.

Peter Robinson: John?

John Yoo: It's constitutional and legal under both international and domestic laws and exercise of the war power.

Peter Robinson: We now proceed to mud wrestle, gentlemen. First question are we truly at war? If so, then the laws of war apply to anyone we capture but if not, if the war on terrorism is simply a more virulent form of social or criminal problem like the war on drugs then we ought to be talking about domestic and international criminal law. So the question is did September 11th start a true war? You agree that it did? That's not a controversial matter for you?

Erwin Chemerinsky: It's certainly both a war and a law enforcement matter but I don't think that that determines whether or not those in Guantanamo should have access to the courts.

John Yoo: The question is if you decide it's a war then naturally you have to ask about what are the powers that the Commanders in Chief and the presidents have exercised in war. And in every war, we have always taken people's enemy combatants. Think of the hundreds of thousands of people who are captured in the Persian Gulf War. Right, there's no special statute passed by congress authorizing them to be captured and detained. They were captured by the president and the subordinate military officers under the laws of war as you said, and this is a traditional power of the military and presidents under the Constitution. They were never given lawyers. They never had federal habeas corpus rights.

Peter Robinson: The Third Geneva Convention, to which the United States and Afghanistan where most of these detainees were captured are both signatories, lays down strict rules for the treatment of prisoners of war. Erwin Chemerinsky, I quote you to yourself, "The United States government has ignored all of these requirements." State your case.

Erwin Chemerinsky: The Third Geneva Courts, as you point out, says that when a government is holding individuals, it has to provide a prompt proceeding before a competent tribunal to determine if they're prisoners of war or enemy combatants. Secretary of State Colin Powell two years ago in March of 2002 said we need to provide these tribunals. It's never been provided. What distinguishes John's example of what's occurred previously is never before has the United States government said we can apprehend individuals and hold them indefinitely. In fact, President Bush says the war on terrorism can go longer than any of our lives. Holding them for the rest of their lives without any access to any tribunal whatsoever.

Peter Robinson: John?

John Yoo: There's a number of things to say there. First there's two kinds of detainees. There's the Al Qaeda detainees and the detainees picked up in Afghanistan. I don't think anybody seriously is claiming that the Al Qaeda detainees are entitled to the Geneva Convention rights because they are not fighting on behalf of a state.

Peter Robinson: You would not so maintain?

Erwin Chemerinsky: There has to be a competent tribunal and those are the words of the Third Geneva Courts to determine who is from Al Qaeda as an enemy combatant versus a prisoner of war. We've never had those tribunals.

John Yoo: I don't think that's right. First you have Al Qaeda detainees. They're just not entitled to any Geneva Convention rights because they're not fighting on behalf of the state that signed the Geneva Convention. Then there is the people who fight on behalf of Afghanistan during the military conflict and the war there. Those people do get the Geneva Convention rights of some kind but the provision you're talking about says they get a competent tribunal which in the past, historically, has not been a federal court, has sometimes been just two or three officers in the field who examine someone who's captured in the field. Those people get a right to a tribunal if there's--the treaty says if there's any doubt about their status.

Peter Robinson: Let's take a look at each of the tests used to determine a prisoner's status.

Title: You Can all Me Al (Qaeda)

Peter Robinson: The Third Geneva Convention lays down four tests for whether someone captured in combat is or is not a prisoner of war versus an enemy combatant. And I'd like to go through these tests--they're quite simple--and see how you both respond to them. The members of the militia in question must be "commanded by a person responsible for his subordinates." True of the Taliban, John?

John Yoo: It's unclear because according to I think that provision, that means that there has to be a commander who enforces the laws of war and discipline on their troops. And it doesn't appear, as far as we could have told it when we were fighting this war that the Taliban met that. The Taliban seemed to be this kind of a mob that…

Peter Robinson: You are saying positively they failed to meet that test?

John Yoo: Yes.

Peter Robinson: Or simply--you are saying pos…

Erwin Chemerinsky: Two things. First…

Peter Robinson: You'll let that test go--go ahead.

Erwin Chemerinsky: No, first the question is who makes this determination? I don't believe it's a determination to be made by John Yoo or the President. There has to be a tribunal too. But second I also disagree with this characterization of the Taliban. As awful as they were, they were the government ruling Afghanistan and they clearly met that first test. They were commanding an army.

Peter Robinson: Second test. The members of the militia must wear a--again I'm quoting from the translation in English, the Geneva Convention--"a fixed, distinctive sign recognizable at a distance, if not a uniform than something to set them apart from the civilian population." Taliban meets that requirement?

John Yoo: Again, we didn't think that they did because some people said they had these turbans and these different colored turbans separated Taliban from non-Taliban. But actually the turbans had to do with their geographic location and where they were from. In fact, a lot of the time what they tried to do was to disguise themselves and blend into the civilian population so they became indistinguishable. So we didn't think that they met that--that factor either.

Erwin Chemerinsky: Undoubtedly some did and some didn't. Again, I think we're avoiding the question of who gets to decide this.

Peter Robinson: You keep saying "we thought this" and "we thought that." Who is the "we" in this case?

John Yoo: When we were in the government--when I was in the government, I worked at the Justice Department and so the Justice Department, the Defense Department and the White House worked on these questions. Yeah.

Peter Robinson: Okay. Two more tests and we'll--we'll get to deeper questions--I just want to see the way these tests sort out. Test number three, the members of the militia must carry their arms openly. That they did do, right?

John Yoo: Everyone in Afghanistan carries arms openly so I don't think they had a problem with that factor.

Peter Robinson: Okay.

Erwin Chemerinsky: Of course.

Peter Robinson: Last one. The members of the militia must conduct their operations "in accordance with the laws and customs of war."

John Yoo: Right. On that--that is the idea that if you're going to get the benefits of the laws of war, you obey the laws of war. And I think everyone agrees that the Taliban were notorious for violating the laws, massacring civilians, killing prisoners that they captured.

Peter Robinson: You'd grant that as well, right?

Erwin Chemerinsky: Obviously.

Peter Robinson: Okay. So what John Yoo says is look, the question of who determines whether they're enemy combatants or prisoners of war under the Geneva Convention isn't terribly important because on these four tests, they clearly failed three. It's obvious.

Erwin Chemerinsky: Well, obviously I disagree with him in terms of where they fail in many of those tests. But I also think it misses the point. The Third Geneva Courts say there has to be a competent tribunal to determine whether somebody's a prisoner of war or an enemy combatant. We could talk about what tribunal. I'm not saying it has to be a federal district court…

Peter Robinson: John?

Erwin Chemerinsky: …but it can't be and I think this is the point we still haven't gotten to…

Peter Robinson: Right.

Erwin Chemerinsky: …it can't be that the United States government can hold human beings for the rest of their life in prison without any access to any tribunal to determine whether it's appropriate.

John Yoo: I think the mistake Erwin's making--I'm not saying it's a terrible mistake, it's just a category mistake, way of thinking about this--Erwin and the plaintiffs in these cases think about this as a criminal law enforcement operation. So you hear it in the way Erwin talks about it. They're in prison. They're being held in prison without criminal charge for the rest of their lives. Right. That is a very American criminal law way of thinking about people who are being detained. The laws of war in the military world--detention is a very different process. Right. You're not detained because you're guilty of a crime or you're being punished. You're detained to prevent you from going back on the battlefield and fighting. And you're not detained indefinitely. You're detained until the conflict is over. And Erwin is quite right. Rhetorically the war on terrorism could be a long time. It sounds like the war on drugs. It sounds like a persistent social problem but as a matter of…

Peter Robinson: Doesn't "sound like"--the president--we have it on the authority of the chief executive himself that this'll go on for ages.

John Yoo: And I think that's a matter of political rhetoric but in terms of international law, we have a conflict with a defined entity which is the Al Qaeda terrorist network.

Peter Robinson: Let me push John just a little bit harder on this question of who determines the status of these detainees.

Title: Enemy Mine

Peter Robinson: Current American military regulations, "All persons," this is our stuff, our regulations, not Third Geneva, "all persons taken into custody by U.S. forces will be provided with the protections of the Third Geneva Convention until some other legal status is determined by competent authority." What competent authority overcame this presumption which is written into our own military regulations, to decide that those 600 and some odd now in Guantanamo Bay are enemy combatants instead of prisoners of war?

John Yoo: That's a--it's clearly a presidential determination and there was a press conference, I believe, and a document issued by the president making the findings about the Taliban and the Al Qaeda, you know, as I think I said before, the Al Qaeda one I think is a fairly simple one because they're not fighting on behalf of the state. With the Taliban, the president took in all the intelligence information about the way the Taliban had conducted themselves; went through those four factors. I think at a minimum, everyone agrees they--Taliban disobeyed the fourth factor, obeying the laws of war. And the president made a determination as to them as a group. Now it's true that there could still be doubt about some people and they would get a tribunal. So, for example, if you were a BBC reporter and you were captured on the battlefield, you weren't even a combatant; you would get a tribunal. But it's the people who are members of the Taliban who are claiming oh as a Taliban member, legally the Taliban are entitled to assess prisoner of war, they lose because the president has made that judgment.

Peter Robinson: Does this not make Swiss cheese out of one of the signal human accomplishments of the twentieth century, namely the Geneva Conventions in the sense that any time the President of the United States wants to opt out of treating people we take in combat as prisoners of war he just says so? At a press conference, he just declares that they're enemy combatants. There's no appeal. There's no even semi-judicial process established. He just says so. Doesn't that make you queasy?

John Yoo: No, because the president has always been in charge of wartime and has always made these determinations. And so you're right, I mean, there's a--it's possible that some president could abuse the system and say I'm just not going to apply the Geneva Convention to anybody whether they sign the treaty or not or how they conducted themselves or not. And, you know, there are political branches like congress that can respond to that if they disagree. But we've always…

Peter Robinson: To check the political and diplomatic--the international community it's up to them to get steamed up over it as indeed they have. Tony Blair's upset about the way we're treating the prisoners.

John Yoo: Exactly. We've historically given that power to presidents.

Erwin Chemerinsky: No president's historically ever said we're going to hold people likely for the rest of their life with access to no tribunal. I disagree with John…

Peter Robinson: Can I just ask--is it the open-endedness of this conflict that creates this what you would view as a special or an unprecedented problem with these enemy combatants?

Erwin Chemerinsky: Certainly that's what makes this most troubling.

Peter Robinson: All right.

Erwin Chemerinsky: And what I think is wrong with John's analysis here is it's not--doesn't matter whether you call it law enforcement or war, we're holding human beings in prison without access to any judicial review. According to some administration sources that have been quoted in the newspaper, there are people in Guantanamo by error because we paid warlords for information in Afghanistan of who to apprehend. According to some administration sources and articles in major newspapers, there are people we know to be there by mistake. Now I honestly don't know if that's true or not but we can't let one person, even the President of the United States, imprison people indefinitely without any check and balance.

John Yoo: And look, the political system has worked. See the problem is that you're going to federal court trying to get judicial review of the Supreme Court and the lower federal courts, look at all these people and decide who they are. That is the--I think that's the worst possible way to fight a war because you don't want the federal courts and judges involved in making decisions about who we're going to detain, how long we're going to detain them and what we're going to do while we have them. And you can see the political system is working. The Defense Department just recently announced that it is going to start reviewing the cases of these individuals.

Peter Robinson: Next topic: why has the government so far refused to convene tribunals that would end this controversy over the detainees' status?

Title: Can't We Handle the Truth?

Peter Robinson: John, according to Article 5 in the Geneva Convention--this is what Erwin has been quoting, whenever there is "any doubt" whether a detainee is or is not a prisoner of war, the detainee is entitled to a finding on the question by again, "a competent tribunal." Now Erwin himself is a well-educated, well-read man whose heart is in the right place. And he looks at the situation and says I'm in doubt. I am in doubt. Is that not evidence on the face of it, Erwin's doubts, the doubts of many others, people of good will, highly educated, literate who've informed themselves on the matter, that indeed there is doubt. What would it cost us to set up a tribunal even if it's as rudimentary as three well informed officers to go through these cases, just as a political matter? Why doesn't the President say to the Secretary of Defense for goodness sake, get Erwin Chemerinsky and his kind off my back? Set up tribunals. Why don't they do it? Are they worried about precedent? What are they worried about?

John Yoo: I think there's two things here. First you're right. Why not do it? It could be cheap. It could be quick and speedy. I think some of that is happening now. I think you've seen Department of Defense has announced that they are going to review people. They're saying it's not because of Geneva but they're doing it for political reasons because of diplomatic pressure and so on. I think the second thing is there's an important message to send about what terrorism is and I think this is part of the bigger picture of why these kind of issues are important. We don't want to legitimize terrorism. All right, you are legitimizing terrorism if you're going to say terrorists are the same thing as honorable warriors who are captured in the laws of war and received Geneva Convention protections.

Peter Robinson: So it's the precedent…

John Yoo: I think it's important to send…

Peter Robinson: The diplomatic message…

John Yoo: I think it's important to send the message and law is part of diplomacy, political message and so on to say we are devaluing terrorism. We are not going to give terrorists the same treatment as people who fight legitimately in the armed forces.

Peter Robinson: And you think doing that is illegal or imprudent?

Erwin Chemerinsky: I think it's both. Let me respond to two points. First he says the Defense Department is now saying it's going to create tribunals. And I think that's terrific. It's long overdue. Many of these people have been there over two years. I think the Defense Department is doing it cause the case is now before the Supreme Court and the Defense Department wants to seem less unreasonable before the Supreme Court. As for the second point I do want to talk about what John does, the message that we're sending. I think by holding these individuals indefinitely with no judicial procedure, we send a message to the world of arbitrary power, violating international law. He's right. That's why Great Britain, for example, has been outraged, why many nations like Australia have been outraged. And I think that's why what the United States is doing is so clearly wrong.

Peter Robinson: On to questions of jurisdiction.

Title: The Long Arm of the Law

Peter Robinson: 1950 case, Johnson v. Eisentrager. The case arises from the conviction of twenty-one Germans in China who were tried by a U.S. Military Commission in Nanking for assisting Japanese soldiers that were fighting the United States. The Germans are then transferred to a prison in Germany that was under the control of the United States Army. One of the twenty-one seeks a writ of habeas corpus. The Supreme Court rules against him. The decision, "These prisoners at no relevant time were within any territory over which the United States is sovereign and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." Is it not the case that every word of that decision applies equally well to the detainees in Guantanamo and how does the Supreme Court intend to bend itself around that problem?

Erwin Chemerinsky: For two reasons. First--the first thing you said was these twenty-one individuals had all been tried in a military tribunal. Those being held in Guantanamo have been tried in no tribunal. Second, keep in mind with regard to Johnson…

Peter Robinson: He's got a perplexed look on his face.

John Yoo: Well, because again this shows a misunderstanding of the difference between military affairs and domestic law enforcement. A trial is a good thing in domestic affairs because you have truth finding functions and so on. In military affairs, to be tried by a military commission is worse off. You are being treated harshly by the government rather than being simply detained because under the military laws when you're detained, you're allowed to be released when the conflict's over. If you get tried, you could be executed. You could a sentence, you're punished. And that's why in that system having a military commission in the Johnson v. Eisentrager actually was a worse thing that the government did to the detainees than in the current case. In a way, you're asking for them to all be tried by military commissions, which is a harsher punishment by the government on the people being held at Guantanamo Bay.

Erwin Chemerinsky: That's amazing spin. The reason I say that's amazing spin is what it says is it's better to hold people for the rest of their lives in prison without due process than to provide some form of due process.

John Yoo: First of all, the government has not said they're going to hold them for the rest of their lives. They're getting held until the conflict is over.

Peter Robinson: Yes, but the Secretary of Defense has used the word "indefinitely" over and over and over again. You can do a Google search on Rumsfeld indefinitely in Guantanamo and believe me, you find dozens of uses of that word.

John Yoo: I mean, that--legally they cannot be held indefinitely. There's no doubt about that. I'm sure when the government argues the case in the Supreme Court they will say that. They get held as long as the conflict is over.

Peter Robinson: And you don't mind if we send a tape of this to Rumsfeld saying Yoo tells him to stop using that word.

John Yoo: No, you can send it to him.

Erwin Chemerinsky: As long as the conflict is...

John Yoo: As long as the conflict is ongoing.

Erwin Chemerinsky: And the conflict is the war on terrorism.

John Yoo: And the conflict is the war against Al Qaeda, the entity Al Qaeda. It's not against the war--it's not a war as long as terrorism goes on for. And that's an important point because we don't know how long a war's going to go on for. We're just in the very beginnings of it, right. That's like saying in 1939; you should have known how long World War II is going to go on for. You can say a number at least in five years. That's impossible.

Peter Robinson: You come to us from the Bush Department of Justice so what you say is of special interest here. But you just gave the war on terror sharper definition than I've heard from the President, from the Secretary of Defense. You're quite sure that the President would sign onto that notion--that when he said in the State of the Union Address this past winter that we've captured or killed some two-thirds of the leadership of Al Qaeda, he was saying in effect, we're two-thirds of the way to the end of this war?

John Yoo: I think that's essentially true. I think if we effectively decapitate the leaders of Al Qaeda and remove their capabilities for harming the United States…

Peter Robinson: And that's the policy of the United States government? That's not just you being hopeful or tidying up…

John Yoo: I think legally that has to be the case and I think all of the detention powers and so on are tied to that.

Peter Robinson: But go on though because I want to know how the Supreme Court gets around this 1941 decision--1950 decision rather.

Erwin Chemerinsky: I see two things. One was there were military tribunals there. There are no military tribunals here. Second, when you read that quote the Supreme Court emphasized they're being held outside the sovereign territory of the United States. I think Guantanamo is clearly the sovereign territory in the United States over the terms of the Treaty with Guantan…

Peter Robinson: Under the terms of the Treaty in Guantanamo the sovereignty of Cuba is explicitly recognized?

Erwin Chemerinsky: Yes, but if you look at the Navy's own website, it says that what that means is that if the United States leaves Guantanamo Bay, it's then turned back to Cuba. Ask a simple question. That's…

Peter Robinson: Is that a legal loophole?

John Yoo: No, I mean, there's a difference between jurisdiction and sovereignty. I mean, I think Erwin's approach to it would mean that federal courts would have habeas jurisdiction over every base abroad, every U.S. base where we have set up a base with a treaty. It would extend jurisdiction to every POW camp we have abroad because, you know, we're exercising some kind of sovereign power over that territory. Cuba clearly owns Guantanamo Bay. We are renting it. Right. And it's an indefinite lease in the sense you need both parties to agree to terminate it. But we don't own Guantanamo Bay. It's not part of the United States. I mean…

Erwin Chemerinsky: Simple question: Could Castro release the prisoners is Guantanamo? Obviously not and that's because it is undoubtedly part of the United States sovereign territory.

John Yoo: It's not. Which state is it a part of? Which possession is it a part of? Is Guantanamo Bay the same status as Puerto Rico? Is it a possession of the United States? No it's a military base that's abroad.

Peter Robinson: Let's put aside issues of authority and jurisdiction. What about plain old American fairness?

Title In Here For Eternity

Peter Robinson: Erwin's fundamental point which seems to me as a laymen perhaps--precisely because I'm a laymen--has resonance which is that it's somehow fundamentally un-American to take human beings, drag them to Guantanamo Bay, put them in the clink and either toss away the key or hang it on a rack and say we're going to leave the key there indefinitely. It's just not fair play. It's not American.

John Yoo: Right. The only thing I think that bothers you and I think mainly bothers people in the public is the undefined time.

Peter Robinson: The utter open-endedness of it.

John Yoo: Right. I think the important thing to remember is that there is a definite timeline. It's when the conflict is over. And perhaps the political rhetoric about what we're facing is at odds with I think the legal rules. And those legal rules are…

Peter Robinson: You demonstrate such humility before all the decisions of the executive except when I push you on this indefinite quality and then suddenly you know more than they do and say oh no, no, that's just political rhetoric.

John Yoo: No, I don't think that if you ask them and said this--we're allowed to hold them indefinitely under the laws where they would say yes, we can. They would say, you know, we can hold them until the conflict is over. And the conflict--the conflict may not be over for a long time. But there have been long wars before. There was a Thirty Years War. There was a Hundred Years War. There were--you know, we didn't know at the beginning of World War II how long that war was going to be for, right? We--how would we know that World War II was going to be five years?

Peter Robinson: John, by the way, during the Hundred Years War and the Thirty Years War paying ransom for--I mean, prisoners were exchanged all the time.

John Yoo: No, I'm just saying the conflicts…

Peter Robinson: Nobody stayed in the cast for a hundred years.

John Yoo: We've just been fortunate in the last few years to have wars that were only a month long.

Peter Robinson: Erwin, go ahead.

Erwin Chemerinsky: Neither of those--neither the Thirty or the Hundred Year War involved the United States government locking people indefinitely...

Peter Robinson: Which did not exist.

Erwin Chemerinsky: John describes rightly how September 11th was different than other events in American history but that doesn't tell us normatively what it should mean in terms of the law. And I think when it comes to those basic principles of human rights and human freedom, September 11th doesn't change that. And I think we really do a disservice to our constitution, international law, when we use that as an excuse for imprisoning individuals indefinitely with no judicial process whatsoever.

Peter Robinson: Last question: How will the Supreme Court decide?

Erwin Chemerinsky: I think the Supreme Court's going to decide very narrowly saying that the American courts do have jurisdiction but they're not resolving anything more than that.

Peter Robinson: And they will decide on what grounds?

Erwin Chemerinsky: I think they will say…

Peter Robinson: That we are, in effect, sovereign in Guantanamo Bay?

Erwin Chemerinsky: I think they might do that. I think what they'll also say is that Johnson v. Eisentrager is distinguishable because there some tribunal was provided. I think what they're going to say is that on that basis, courts have jurisdiction to at least hear and decide what's appropriate.

Peter Robinson: John, how will the court decide?

John Yoo: Unfortunately, I think it's up to Justice O'Conner and I'm not a mind reader.

Peter Robinson: Yet again.

John Yoo: Yes, and I've written, you know, recently that I think this is a bad thing for the courts and for our legal system to have this kind of common law, you know, decision making based on all the facts. I'd rather have a clear rule come out of the Court on this one way or the other so the government knows how to fight. But I think what'll happen is that the Court will say Guantanamo Bay is outside the jurisdiction of the federal courts, Johnson v. Eisentrager applies--but then say in the case of Padilla and Hamdi and the Hamdi case that there will be some…

Peter Robinson: Which are distinguished from Guantanamo Bay because…

John Yoo: Because they're United States citizens in the United States who are accused of being members of Al Qaeda. And they will get some kind of access to a lawyer and they will get some kind of hearing and judicial review. And I think that's how they'll split the bulk of it.

Peter Robinson: And you will find that unsatisfying because on Guantanamo Bay the Court will reach for the narrowest, most technical grounds?

John Yoo: No, I actually think in Guantanamo Bay they will say this is outside our jurisdiction because it's outside the United States.

Peter Robinson: And just slot it out of court altogether?

John Yoo: Right and they'll focus most of their attention on how U.S. citizens are going to be treated in the United States, which is going to be the future of the war on terrorism anyway. Right. It's going to be what happens when Al Qaeda operatives get into the United States. That's going to be the future--that's how the--that's the question the Court will probably spend most of its time on. In a way, Guantanamo Bay is the past. Right. Those are the people we picked up for the conflicts that are essentially ending…

Peter Robinson: One hopes.

John Yoo: Yeah, one hopes. And so the thing to be worried about is what the Court's going to do about the rules going forward because that will have a very definite effect on how the war on terrorism goes for us.

Peter Robinson: Erwin Chemerinsky, John Yoo, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.