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Slate's Jurisprudence: 'War on Terror' Surprises

MADELEINE BRAND, host:

There are two surprising statements from opposite ends of the terrorism debate to consider. The first is from convicted al-Qaida conspirators Zacarias Moussaoui. He now says he lied about his involvement in the 9/11 attacks, and he wants a new trial because he now sees how fair the American justice system can be. And the second statement comes from President Bush, who said recently that he wants to close the Guantanamo Bay detention center; that's the place where many so-called enemy combatants are being held without formal charges.

Well, here to analyze both of these statements is Dahlia Lithwick. She's the legal analyst for the online magazine Slate and for us here at DAY TO DAY. And, Dahlia, first of all, any chance at all that Moussaoui will get another trial?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Zero, I think, is a safe bet. In fact, Judge Leonie Brinkema already denied his strange motion to withdraw his previous guilty plea and get a new trial. She said absolutely not under the federal rules. You're not entitled to that. But it is sort of an interesting little insight that here, in this long new affidavit, he says, wow, I was really surprised at how fair and subtle the American jury system is, and I really think this time around I could get a fair trial. So score one for the jury system.

BRAND: Well, also over the weekend, President Bush gave an interview to German television, and he said, surprisingly, I very much would like to end Guantanamo. Now, he has not said this in the past.

Ms. LITHWICK: It's a big shift, Madeleine. As recently as last January, Bush had said in response to German Chancellor Merkel's call for a closure of the base that, quote, "Guantanamo is a necessary part of protecting the American People." He's always sort of stood by the notion that having that camp, and holding people there even without charges is not only necessary to the war on terror, but a part of his fundamental rights as the president.

BRAND: And he also said, Dahlia, that he was waiting to make that decision until the Supreme Court hands down its ruling in the Hamdam case. Now, remind us what that case is about, and why the president would want to wait for that case to play out.

Ms. LITHWICK: It's worth saying it's a strange linkage, but Hamdam was the case that the Supreme Court heard earlier this term. A decision is pending; it should come down sometime in the next month.

But Hamdam was, essentially, a case that involved this one very narrow question about whether Congress and the Bush administration could strip petitioners at Guantanamo Bay of their Habeas Corpus rights, their rights to a basic trial under the U.S. system. And two, whether the military commissions that have been set up to try people in Guantanamo were sufficient under international law, under military law, under the constitutional law of the country; and so they were, essentially, only reviewing this tiny segment - only 10 people at Guantanamo have been charged before these commissions. And so the other 480 some people who are there, are in no way involved in those military commissions, and so it's hard to understand why Bush is waiting for a decision about those commissions before he goes ahead and closes the camp.

BRAND: Well, was the president obliquely referring to the fact that he would just move these prisoners out into civilian courts if there's a ruling in favor of Hamdam?

Ms. LITHWICK: Again, I mean he said expressly that the Supreme Court is making a decision now about whether the people at Guantanamo get to have a fair trial, quote, "in a civilian court or in a military court." But that's not really the question before the Supreme Court in Hamdam.

So it's not clear whether he's saying, at the end of this, once Hamdam comes down, he's going to try everybody under these military commissions. The Pentagon has said clearly, at most they're going to try about 75 of the people at Guantanamo under those commissions. So whether he plans to try, now, everybody under those commissions or he's going to try them in some civilian system or he's just going to let them go; or perhaps just move them to black sites around the country. We just don't know from this statement what he plans to do with them; although, he did seem to say he wants them all to get some kind of trial.

BRAND: Dahlia, thank you very much.

Ms. LITHWICK: It's my pleasure, Madeleine.

BRAND: That was Dahlia Lithwick with her opinion and analysis. She covers the courts for the online magazine Slate and for us here at DAY TO DAY. Transcript provided by NPR, Copyright NPR.

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