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Interview With Tom Wilner
Hannity & Colmes
June 29, 2006
SEAN HANNITY, CO-HOST: And also coming up tonight, our first story, our top story tonight, is today's ruling from the U.S. Supreme Court that could deal a serious blow to the war on terror.
In a 5-3 ruling, the court said that President Bush had overstepped his authority by ordering the Gitmo detainees tried by military tribunals and not by civilian courts. This could have a chilling impact on the war on terror.
Joining us now, Tom Wilner. He is an attorney representing some of the Gitmo detainees. From the AmericanCenter for Law and Justice, Jay Sekulow is back with us. And also former Gore campaign lawyer, author of the book, "Courting Justice," David Boies is back with us.
David, first of all, the courts again, they change often. In 1950, they ruled they didn't have authority at issue here, so they changed their mind dramatically.
DAVID BOIES, FORMER GORE CAMPAIGN LAWYER: They really have changed. If you read the 1950 decision, which involved Germans coming out of the Second World War, and you read today's decision, there are portions of that decision that I don't think that you can read consistently.
HANNITY: What would we do during World War II, hundreds of thousands of prisoners of war, what would we do? Would we detain them now?
BOIES: I mean, that's really the problem. I mean, in GuantanamoBay, we've got people that are being held, and it's an indefinite situation. Nobody knows how long it's going to go on. And remember that the decision today doesn't deal with that. The decision today expressly says this has nothing to do with holding those people throughout the period of hostilities.
HANNITY: But the argument is whether or not they're taking away the president's war-making powers, whether or not the president's sort of being surrounded by both the legislative and the judicial branches here. And one of the biggest criticisms that I hear coming from smart lawyers, they're all saying the same thing, that they cite the Geneva Conventions, one paragraph, one section, but ignore the other section, which ostensibly says, first of all, they're not signed into the Geneva Conventions, number one.
They don't abide, certainly, by them with their tactics. And, number three, they don't fit the classification to even be involved in it, but yet it's cited to give justification for this.
BOIES: It is. But I think the thing that's most -- two things that are very interesting about the opinion. First, the court makes clear, and almost all of the judges, certainly the majority of the judges, make clear this is not a constitutional problem. What they do is they say Congress can establish these tribunals to do exactly what these tribunals are doing.
HANNITY: We got to go to Jay Sekulow. Isn't the real purpose here that we are really talking about -- in this particular case, we're talking about Usama bin Laden's driver and bodyguard. We're talking about people that would go back into the field of battle, people that we need to extract information from, people that are literally a danger to our life, our culture, our society, are we not? Is this a bad decision, in your view?
JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: I think it is a bad decision. And I think it's evident by the fact that there's about as many opinions as there are justices, maybe more, the way this court came out.
But I think what David said is very important here: The court did not say that Hamdan gets released. In fact, they can be maintained in GuantanamoBay indefinitely, as long as there's active hostilities, but the concern you have to have is: Who decides how you conduct a war?
The Constitution says the president is the commander in chief. This opinion today at least indicates that, in fact, U.S. district court judges could be making that determination, although, again, I do think, as David just said, that there is a legislative remedy to a lot of this, and that may exactly happen here.
HANNITY: But, Jay, are we though conferring constitutional rights, if you will, to enemy combatants, to members on the battlefield? This has never been done before in the history of warfare in this country. The idea that we would do that on its face is absurd to most Americans.
SEKULOW: Well, that's exactly what this is. I mean, you never did that. And in the cases that came out of World War II, the Supreme Court was quite clear on that. You can't try everybody you pick up on a battlefield. That would be ridiculous. That's not the way the...
ALAN COLMES, CO-HOST: Let me get Tom Wilner in here.
SEKULOW: The other aspect of this -- I want to say this -- is the idea that the Geneva Convention applies to these detainees is absurd, considering that Al Qaeda certainly is not signed onto...
TOM WILNER, ATTORNEY FOR GUANTANAMO DETAINEES: Can I say something about this?
COLMES: Hold on, guys. Tom, this doesn't say you can't try them. It doesn't say you can't detain them. What this simply says is the president, unlike what the John Yoo memo said, doesn't have unlimited power. He's got to confer with Congress. He can't do an executive power grab. And we have a balance of powers in this democracy. Isn't that what this is about?
WILNER : That's exactly what this says. I mean, so many things have been said wrong tonight.
First of all, it doesn't say you need to try them in civilian courts. There are court-martial courts established by law. What this decision says is that the president's power to wage war doesn't allow him to run over other laws, that he's got to comply with the laws. Congress can change those laws, but the president doesn't have the inherent authority.
Let me say something else, too. You compared this with World War II. Everyone in World War II were picked up wearing a uniform. There are 500 people at Guantanamo. Do you know -- I mean, the government documents show only 5 percent of them were picked up by the United States. Ninety percent were picked up by Pakistani or Northern Alliance people and sold for bounties. Only 8 percent of them are accused of being connected with Al Qaeda.
Those are the facts; they've never had a hearing.
SEKULOW: Well, Hamdan certainly was connected -- but Hamdan was connected with Al Qaeda.
WILNER : He might be, but...
SEKULOW: He was the bodyguard of Usama bin Laden.
WILNER : All this is about is a fair trial in accordance with law established by Congress. And all the...
SEKULOW: But you would acknowledge that the court here -- but you would acknowledge, wouldn't you, that, in fact, they could maintain the detention of Hamdan without any trial during the act of hostilities, with no court martials, no proceedings, just hold him as an enemy combatant that was captured?
WILNER : Yes, I think you could. If you really have the guy and he is a combatant, you can do that. But there's a real question down here about how many of these people were combatants, and they've never had a hearing. They've never had a hearing.
COLMES: All right. Let me get David Boies back in here. This basically says no emergency prevents consultation with Congress. That's what they said here.
COLMES: This is about the president of the United States not deciding unilaterally that he has executive power that is not called for in the Constitution.
WILNER : Exactly.
COLMES: The Geneva Convention, as well, we have to honor these conventions and these treaties, that's what our Constitution says.
BOIES: Well, we don't have to honor the treaty if it's inconsistent with what Congress says. I think Congress can -- I think what Justice Breyer, who you're quoting, says is that it needs to be very clear if Congress is going to set up a different procedure than the ordinary procedure under our normal rule of law.
COLMES: All right. But does Congress have the right to override a treaty? Can Congress go and say, "We're going to decide as a Congress that we're not going to obey the Geneva Conventions"?
WILNER : Yes, it could.
BOIES: I think that's what Justice Breyer says. He says, if you go to Congress, if you go to Congress, if the president goes to Congress, Congress can give him this authority. And he's got four justices that signed that opinion. You've got three justices in dissent. You've got at least seven justices who agree with that.
COLMES: Tom Wilner, you agree with that?
WILNER : Absolutely. Congress can override a treaty, but Congress adopted this treaty. And this treaty, the Geneva Conventions, which was really pushed by President Eisenhower more than anyone else to protect U.S. troops abroad, really applies to anyone detained. It says anyone detained, if you're going to try them for a crime, has got to meet certain procedural safeguards. It says that anyone detained has got to be treated humanely.
HANNITY: Hang on. But Justice Stevens says this is a domestic battle. And as Clarence Thomas said, of course, this is an international battle, and they didn't read through the criteria for what it was to even be a part of the conventions.
WILNER : No, no, that misinterprets...
HANNITY: ... requirements in Article 4, sir.
WILNER : That misinterprets the convention.
HANNITY: No, I think Clarence Thomas actually got -- you have to meet the requirements that are in Article 4.
WILNER : No, no, no. What the convention said is that anyone detained must be treated humanely, anyone detained
HANNITY: Yes, but they don't even live by the rules of the convention.
WILNER : It doesn't matter. The convention...
HANNITY: Ann Coulter joins us next. Thank you all for being with us.
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