MICHELE NORRIS, host:
I'm Michele Norris.
MELISSA BLOCK, host:
I'm Melissa Block. And this is ALL THINGS CONSIDERED from NPR News.
What now? That's the question after yesterday's historic Supreme Court decision giving detainees at Guantanamo Bay the right to challenge their detention in federal court. There are roughly 270 men currently being held there, but of those only 80 face actual criminal charges.
To talk about what happens next, we've got NPR legal affairs correspondent Nina Totenberg with us.
Nina, over the last seven years the Bush administration has now lost four detention cases, three of them from Guantanamo. But so far these rulings seem to have had little affect. How will this change Bush administration policy?
NINA TOTENBERG: Well, the administration's policy is in shambles, but the fact is that it's on the way out. I think, basically, it'll be the next president who picks up the pieces and tries to figure out what to do. Even yesterday, the president and the attorney general were talking basically in terms of trying to get around this Supreme Court decision, possibly with legislation, even when the ranking Republican on the Senate Judiciary Committee favors the Supreme Court decision. So this was frankly unrealistic talk.
BLOCK: So is there a pattern here?
TOTENBERG: Yeah, the administration has tried from the get-go to do the minimum. Initially it didn't consult Congress. It didn't consult the military brass. It didn't consult the people in the State Department who are experts on the law of war. It didn't involve the courts. Then, when the Supreme Court said you can't do this on your own, the administration on the eve of an election in 2006 introduced legislation. There were Republicans even - McCain, Warner, the chairman of the Armed Services Committee, and Lindsey Graham - all tried to put provisions in the bill that would be a little more generous to some of the detainees and certain circumstances. The administration would have none of it. And now we're back to square one.
NORRIS: Now, by way the explanation, there are two kinds of detainees at Guantanamo, those who have and have not been charged. First, what happens to all those ho have already been charged?
TOTENBERG: Well, yesterday the attorney general, Mr. Mukasey, said that the administration planned to go ahead with those trials. I've talked to lots of the administration's allies, legal allies, outside of the Justice Department who've dealt with this while they were inside the Justice Department or in other circumstances, and nobody thinks that can happen. The Supreme Court cut the heart out of the legal justification for not having a pretty regular regimen for these trials.
The whole basis for the administration's theory was that Guantanamo was foreign soil and that American law didn't apply. And the Supreme Court has said it's been our property, we've had completely control over it since the Spanish-American War, and you cannot contract out the Constitution that way; it does apply at Guantanamo.
BLOCK: So what about all those who have not yet been charged? And we should say that it accounts for the vast majority of the detainees.
TOTENBERG: Well, there are about 200 cases pending right now that have been on hold before the federal court here in Washington. And most, if not all of those, according to the Supreme Court - those people are entitled to have their cases heard, to see if the federal government has it real basis for holding them. Now, the good news is that the chief judge of the district court here, Royce Lamberth, is a very experienced judge. He was head of the Foreign Intelligence Surveillance Act court.
He's a conservative Republican with a sort of libertarian streak to him. And he sort of knows the politics of this, and I don't mean Republican/Democratic politics. He's already organized a meeting of all the judges who will be hearing these cases.
He said he wants to bring in lawyers who represent a lot of these people to try to work out systems and see if they can't move these along and coalesce what the questions are so that the Supreme Court can decide any future questions - sooner rather than later.
BLOCK: Nina, that's the good news. What's the bad news?
TOTENBERG: Well, the bad news is that about a third of the detainees at Guantanamo have already been judged by military authorities not to be a threat. We want to release them. The trouble is the countries they came from don't want them. We've said that these are the worst of the worst. They don't want them back. We're dealing with some leaders who are difficult to deal with, shall we say, that's nice way of putting it. And we don't have any place to put them.
The Secretary of Defense, Robert Gates, said we're stuck. Then there's also the question of some of these people may not be a threat, a real threat. When they get hearings, we may find they aren't a threat because of what they did, but they've been in custody for almost seven years. Some of them have to have been radicalized by that experience. What do we do about them? Then we haven't gotten even to the ones who we do think are a threat and where do we put them.
NORRIS: A real dilemma. It sounds like its going to be a dilemma for the next administration.
Ms. TOTENBERG: Absolutely.
NORRIS: Thank you, Nina.
Ms. TOTENBERG: Thank you.
NORRIS: That was NPR's legal affairs correspondent Nina Totenberg. Transcript provided by NPR, Copyright NPR.
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