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Slate's Jurisprudence: Status of the 'War on Terror'

ALEX CHADWICK, host:

In this country, the judge in the case of Zacarias Moussaoui has set next January for the start of the sentencing phase of his trial. Mr. Moussaoui pleaded guilty last month to conspiracy charges in connection with the September 11th plot. The trial next year is to decide whether he gets the death penalty. At the same time, many other detainees in the war on terror are still finding it difficult to get into court at all. Joining us is Slate and DAY TO DAY legal analyst Emily Bazelon.

Emily, give us an update on Mr. Moussaoui and why he still needs to have a trial after pleading guilty?

EMILY BAZELON (Slate Magazine): Well, in our system, trials are divided into two phases in death penalty cases. In the first phase, a judge or a jury determines the defendant's innocence or guilt or the person pleads guilty. In the second phase, a jury determines whether the defendant deserves to die, and in that phase, that's the defendant's chance to present what's called mitigating evidence, which is evidence of why his life should be spared. Often his family members or people who knew him as a child will come in and testify perhaps about traumatic experiences he had growing up that might have contributed to the reason that he became a criminal.

CHADWICK: So his case is being heard in federal court. What about the other detainees, especially those held in Guantanamo Bay? They're facing military tribunals, aren't they? And didn't the Supreme Court say they should have lawyers?

BAZELON: Well, the Supreme Court ruled six-to-three last summer that the federal courts could hear the petitions brought by the Guantanamo detainees. The court wasn't entirely explicit, though, about what sort of procedures the detainees were entitled to exactly. Since the Supreme Court's ruling, lawyers have filed petitions for a total of 146 of the detainees and the lawyers say that these detainees have a constitutional right to a fair hearing in court. But the government has continued to claim that the detainees have no rights, either under the US Constitution or treaties like the Geneva Convention. And so far, by setting up the military tribunals you referred to, this government has succeeded in blocking the detainees from getting their cases heard in federal court.

So in these alternate military tribunals, the detainees do not have lawyers and they're also not entitled to see the evidence against them. Five hundred and fifty-eight detainees have gone through the military tribunals and only 38 of them have been found not to be enemy combatants, and that's the case even though only four detainees of the whole 558 have been charged with a crime, and there's been some high-level military officials unnamed who have said at various times that at most a dozen of the detainees actually have strong terrorist ties.

CHADWICK: Emily, I just don't basically get something here. When the Supreme Court says, `Look, these people deserve some kind of representation and some sort of legal hearing,' why don't they get it?

BAZELON: Well, that's what the detainees' lawyers have been arguing about, but the problem is that the Supreme Court really didn't explain what it meant, what the content of the federal hearing it had found a right to was, and so the government has taken that opening and really run with it as far as it can go. And until those issues are sort of relitigated and resolved, we just really don't know the answer.

CHADWICK: So it's going back to court.

BAZELON: Yeah, it's going back to court. There have already been two rulings from different federal district court judges and they have disagreed. One judge, Richard Leon, said that the detainees have no rights to full-blown hearings, and the other judge, Joyce Hens Green, found that they did. So the next step is for the United States Court of Appeals for the District of Columbia circuit to resolve that conflict. And after that, the cases could well go back up to the Supreme Court probably sometime next year.

CHADWICK: Opinion and analysis from Emily Bazelon. She's writes the Jurisprudence column for our partners at Slate.

Thanks, Emily.

BAZELON: Thank you, Alex.

CHADWICK: More just ahead on DAY TO DAY from NPR News. Transcript provided by NPR, Copyright NPR.

Alex Chadwick
For more than 30 years, Alex Chadwick has been bringing the world to NPR listeners as an NPR News producer, program host and currently senior correspondent. He's reported from every continent except Antarctica.