| 00:00:23 |
none, -
HONORAL COURT -- HONORABLE COURT. >> I WILL HEAR ARGUMENT FIRST IN 036696. YASSER ARAFAT AMIDI VERSUS DONALD RUMSFELD. MR. DUNHAM. >> MR. CHIEF JUSTICE,...
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| 00:00:47 |
Unidentified Speaker, -
TWO YEARS IN THE UNITED STATES WITH NO OPPORTUNITY TO BE HEARD AS TO THE FACTS ON WHICH HIS DETENTION IS BASED. MR. HAMDI MAKES TWO
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| 00:00:59 |
Unidentified Speaker, -
CLAIMS. FIRST, THE FOURTH CIRCUIT WRONGLY PREVENTED HAMDI, IN THIS HABEAS PROCEEDING FROM BEING HEARD IN THE FACTS OF THE CASE ON GROUNDS THAT ALLOWING...
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| 00:02:26 |
Unidentified Speaker, -
ONLY TWO PRECEDENTS THAT I'M AWARE OF, JUSTICE O'CONNOR. THE FIRST IS THE TREATMENT OF THE AMERICAN CITIZEN SAB -- SABOTEUR-SPY
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| 00:02:36 |
Unidentified Speaker, -
IN
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| 00:02:40 |
Unidentified Speaker, -
EX-PARTY KEREN, AND IN RE TORRITO, A NINTH CIRCUIT CASE, NOT A CASE COMING
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| 00:02:46 |
Unidentified Speaker, -
OUT OF THIS COURT, IN OUR VIEW, FIRST OFF, IN TORRITO, HE WAS NOT AN ENEMY COMBATANT, HE WAS CALLED A PRISONER OF WAR IN THAT CASE, BUT IN TORRITO THERE...
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| 00:03:37 |
Unidentified Speaker, -
ENGLISH WORD. IT MEANS SOMEBODY WHO IS COMBATING. >> THAT'S CORRECT. >> I ASSUME
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| 00:03:41 |
Unidentified Speaker, -
IT MEANS SOMEONE WHO HAS TAKEN UP ARMS AGAINST THE ARMED FORCES OF THE UNITED STATES. CLEARLY, DO WE HAVE TO QUIBBLE ABOUT THAT WORD? >> NO. IN ITS...
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| 00:03:57 |
Unidentified Speaker, -
AN UNLAWFUL BELLIGERENT, I TAKE IT, IF THE GOVERNMENT'S
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| 00:04:00 |
Unidentified Speaker, -
RIGHT. >> THE
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| 00:04:01 |
Unidentified Speaker, -
GOVERNMENT HASN'T CLAIMED "ON THE RECORD" IN THIS CASE, WHICH IS LIMITED TO THE
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| 00:04:10 |
Unidentified Speaker, -
DECLARATION, IT DOESN'T SAY THAT MR. HAMDI IS AN UNLAWFUL
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| 00:04:16 |
Unidentified Speaker, -
COMBATANT. THE COURT LIMITED THE COURT'S CONSIDERATION TO THE AFFIDAVIT AND SAID HE COULD CONSIDER NOTHING ELSE.
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| 00:04:22 |
Unidentified Speaker, -
THERE IS NOTHING IN THAT DECLARATION THAT SAYS THAT MR. HAMDI WAS AN UNLAWFUL COMBATANT AND GETTING BACK TO JUSTICE SCALIA'S POINT WE DO ACCORD THE...
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| 00:05:07 |
Unidentified Speaker, -
APPLY? AND IF IT DOES, ARE THE PROCEEDINGS LIMITED IN SOME WAY? BECAUSE OF THAT STATUS OF BEING
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| 00:05:14 |
Unidentified Speaker, -
AN ENEMY COMBATANT? >>
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| 00:05:16 |
Unidentified Speaker, -
WELL, YOUR HONOR, I BELIEVE THAT
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| 00:05:20 |
Unidentified Speaker, -
HIS STATUS IS THE THING THAT IS THE SUBJECT OF THE HABEAS PROCEEDING. I MEAN, IF YOU START PRESIDENT PREMISE THAT HE'S FIGHTING AGAINST OUR COUNTRY, THAT'S...
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| 00:05:38 |
Unidentified Speaker, -
ABOUT NONCITIZEN COMBATANTS. ANYONE CAPTURED IN A WAR COULD SAY "YOU'VE GOT THE WRONG MAN. I, IN FACT, WAS NOT TAKING UP ARMS AGAINST THE UNITED...
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| 00:05:58 |
Unidentified Speaker, -
PROCEEDING BECAUSE HE WANTS TO CHALLENGE THE FACT, WOULD YOU? >> I WOULDN'T ALLOW EVERY PERSON CAPTURED TO GO THROUGH A HABEAS PROCEEDING BUT THERE IS...
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| 00:06:26 |
Unidentified Speaker, -
CASE. ARE YOUR RIGHTS ANY DIFFERENT FROM THAT OF A NONCITIZEN IN THE SAME STATUS? YOU HAVEN'T ANSWERED THAT. >> YES. FIRST OFF, IN KIRAN, WE HAVE...
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| 00:06:38 |
Unidentified Speaker, -
THE PREMISE THAT THE KIRAN PROCEEDING WAS AUTHORIZED BY CONGRESS. >> I'M ASKING YOU TO DISTINGUISH BETWEEN CITIZEN AND NONCITIZEN IN THE HYPOTHETICAL...
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| 00:06:52 |
Unidentified Speaker, -
UNITED STATES. ANY DIFFERENCE? >> NOT IN THE KIRAN CASE, NO, YOUR HONOR. >> ANY DIFFERENCE IN YOUR VIEW AND UNDER THE THEORY OF THE CASE THAT YOU...
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| 00:07:03 |
Unidentified Speaker, -
THAT DIFFERENCE IS THAT MR. HAMDI IS A CITIZEN. HE'S NOT ENTITLED TO BELLIGERENT IMMUNITY. HE IS SUBJECT TO PROSECUTION UNDER OUR LAWS, IF HE WAS,...
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| 00:07:15 |
Unidentified Speaker, -
PARTICIPATING IN TAKING UP ARMS AGAINST OUR
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| 00:07:18 |
Unidentified Speaker, -
FORCES. BUT THAT BEGS THE
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| 00:07:21 |
Unidentified Speaker, -
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| 00:07:22 |
Unidentified Speaker, -
QUESTION. >> YOU MENTIONED IN
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| 00:07:24 |
Unidentified Speaker, -
CONNECTION WITH KERAN, AND I THINK ONE OF THE DEFENDANTS WAS ALLEGED TO BE A U.S. CITIZEN. SO I THOUGHT YOU WERE MAKING -- REGIMES IN PRIOR WARS FOR...
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| 00:07:44 |
Unidentified Speaker, -
CLAIMS OF PEOPLE WHO SAID, "I WAS AN INNOCENT BYSTANDER. I WAS INDEED CAPTURED BY THE ENEMY, IN VIETNAM, IN WORLD WAR II." WAS THERE MEANS TO ENTERTAIN...
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| 00:08:28 |
Unidentified Speaker, -
PROCEEDINGS SATISFY YOUR CLAIM? YOUR POINT IS THAT HAMDI HAS NOT HAD A CHANCE TO BE HEARD ON HIS CLAIM THAT THIS WAS A DREADFUL MISTAKE, "I WASN'T...
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| 00:08:47 |
Unidentified Speaker, -
WHICH WE HAVE TWO CLAIMS HERE, REALLY, THE FIRST IS THAT HE'S NEVER HAD AN OPPORTUNITY TO GIVE -- TO ASSERT A CLAIM OF INNOCENCE, AND THOSE REGULATIONS...
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| 00:08:59 |
Unidentified Speaker, -
IN THIS CASE WOULD CERTAINLY HAVE GIVEN HIM THAT OPPORTUNITY. AND THEN, IF HE FILED A HABEAS CORPUS PETITION, WHICH WOULD BE HIS RIGHT, THE DISTRICT...
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| 00:09:35 |
Unidentified Speaker, -
REMEMBER? IF THE MILITARY ACCORDED SOME PROCESS AT THAT TIME, AS I UNDERSTAND THEY SAID THEY DID, SURELY, THAT IS MORE RELIABLE THAN ANYTHING THAT WOULD...
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| 00:10:07 |
Unidentified Speaker, -
FORCES. HE WAS CAPTURED BY ALLIED FORCES AND TURNED OVER TO OUR FORCES. >> THAT'S CERTAINLY PART OF THE PROBLEM, YOUR HONOR. >> DO YOU WANT THEM TO...
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| 00:10:22 |
Unidentified Speaker, -
PROCEEDING, NOW? IT'S JUST PUTTING UNREASONABLE DEMANDS UPON A WAR SITUATION. I JUST -- >> YOUR
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| 00:10:32 |
Unidentified Speaker, -
HONOR, MY VIEW IS THAT
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| 00:10:34 |
Unidentified Speaker, -
IT CAN NEVER BE AN UNREASONABLE DEMAND TO COMPLY WITH THE HABEAS CORPUS AND THE FIFTH AMENDMENT. >> THE QUESTION IS WHAT IT MEANS, AND THE CHIEF JUSTICE...
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| 00:10:53 |
Unidentified Speaker, -
DO YOU WANT TO HAPPEN AT THIS HEARING? YOU GET YOUR HEARING. ARE WE SUPPOSED TO SEND A GULFSTREAM OVER WITH 10 PEOPLE WHO WITNESSED THE CAPTURE? HOW...
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| 00:11:06 |
Unidentified Speaker, -
REGULATION -- >> THE MILITARY'S OWN REGULATIONS PROVIDE A GOOD GUIDE FOR HOW THIS HEARING WOULD WORK. THEY PROVIDE TESTIMONY BY AFFIDAVIT WHEN IT'S...
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| 00:11:25 |
Unidentified Speaker, -
YOU CAN GET DEPOSITIONS. >>
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| 00:11:27 |
Unidentified Speaker, -
AND WHAT IF THEY GET A DEPOSITION FROM AN AMERICAN COLONEL WHO SAYS THIS PRISONER WAS TURNED OVER TO ME BY ALLIED FORCES, OUR AFGHAN ALLIES IN THIS...
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| 00:11:48 |
Unidentified Speaker, -
YOUR HONOR, THAT WOULD BE A LOT MORE THAN WHAT WE HAVE NOW. >> IT CERTAINLY WOULD, BUT YOU WOULDN'T ACCEPT THAT, WOULD YOU? >> I WOULDN'T ACCEPT IT WITHOUT...
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| 00:12:09 |
Unidentified Speaker, -
CORRECT, YOUR HONOR. WE HAVE NEVER AUTHORIZED
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| 00:12:12 |
Unidentified Speaker, -
DETENTION OF A CITIZEN IN THIS COUNTRY WITHOUT GIVING HIM
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| 00:12:15 |
Unidentified Speaker, -
AN OPPORTUNITY TO BE HEARD, TO SAY, "HEY, I AM AN INNOCENT PERSON." HE HASN'T BEEN ABLE TO SAY THAT YET.
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| 00:12:22 |
Unidentified Speaker, -
HE HASN'T BEEN ABLE TO LOOK AT THE FACTS THAT HAVE BEEN ALLEGED AGAINST HIM, AND GIVE ANY KIND OF AN
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| 00:12:30 |
Unidentified Speaker, -
EXPLANATION AS TO HIS SIDE OF THE STORY, WHICH MAY WELL TURN OUT TO BE TRUE AND MAY WELL CLEAR UP SOME OF THE DEFICIENCIES IN THE DECLARATION. >> AT...
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| 00:13:03 |
Unidentified Speaker, -
SOMETHING, AND MY SUGGESTION IS, IF I UNDERSTAND YOUR ARGUMENT, THAT, IF ULTIMATELY YOU WERE FOUND -- YOUR CLIENT WAS FOUND TO BE ENTITLED TO SOME
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| 00:13:13 |
Unidentified Speaker, -
PROCESS, IT MIGHT BE CONSISTENTLY WITH YOUR POSITION THAT MILITARY PROCESS WITH AN OPPORTUNITY TO BE HEARD IN
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| 00:13:21 |
Unidentified Speaker, -
RESPONSE WOULD SATISFY YOUR DEMAND? >> YES. THAT'S CORRECT, YOUR HONOR. >> ALL RIGHT. >> THE MILITARY PROCEDURE REQUIRES THE MILITARY TO CALL WITNESSES...
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| 00:13:43 |
Unidentified Speaker, -
HAS BEEN AFFORDED
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| 00:13:46 |
Unidentified Speaker, -
HIM? >> RIGHT NOW, HABEAS IS
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| 00:13:48 |
Unidentified Speaker, -
NECESSARY TO EVEN GETTING THAT PROCESS. >> LET'S ASSUME THE REGIME THAT JUSTICE SUITOR SUGGESTED IS IN PLAY. ARE YOU ENTITLED TO HABEAS IN ORDER
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| 00:13:59 |
Unidentified Speaker, -
TO ENSURE THAT THAT HAS TAKEN PLACE AND HAS THIS ARTICLE III COURT SUPERVISE THAT? OR WOULD AFFIDAVITS FROM
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| 00:14:07 |
Unidentified Speaker, -
THE GOVERNMENT THAT THIS PROCEDURE HAS BEEN AFFORDED BE SATISFACTORY? >> THAT WOULD BE A SEPARATE
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| 00:14:12 |
Unidentified Speaker, -
HABEAS PROCEEDING, YOUR HONOR, WHICH MIGHT BE FILED AFTER THE HEARING WAS HELD BY THE MILITARY -- >> I'M ASKING IF YOU ARE ENTITLED TO FILE THAT AS A...
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| 00:14:31 |
Unidentified Speaker, -
THAT THE ARTICLE III COURT WOULD NEED TO SUPERVISE THE HEARING IF THAT'S WHAT HE GOT. HE WOULD CERTAINLY HAVE THE RIGHT WHEN THE HEARING IS OVER,
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| 00:14:38 |
Unidentified Speaker, -
JUST LIKE ANYBODY DOES, TO FILE A HABEAS PETITION SAYING THAT I'M DETAINED BY THE
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| 00:14:42 |
Unidentified Speaker, -
GOVERNMENT AND THEN THE DISTRICT JUDGE COULD LOOK AT THE HEARING, IF THERE WAS A HEARING BY THE MILITARY, HE COULD REVIEW IT FOR FUNDAMENTAL FAIRNESS...
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| 00:15:14 |
Unidentified Speaker, -
REEXAMINE THE FACTS BROUGHT UP IN THAT HEARING? >> I BELIEVE THAT THE HABEAS COURT COULD ALWAYS REVIEW THE PROCESS TO SEE THAT IT WAS FAIR. THAT'S A...
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| 00:15:38 |
Unidentified Speaker, -
IS NO HEARSAY TESTIMONY, AND YOU APPLY THAT RULE TO A WARTIME SITUATION AND EVERYBODY WILL GET OFF. >> YOUR HONOR, THE REGULATIONS -- THE MILITARY'S...
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| 00:15:53 |
Unidentified Speaker, -
WHETHER THOSE REGULATIONS WERE COMPLIED WITH. >> THAT'S DIFFERENT. THAT'S WHAT YOU SAID THAT HE WOULD LIKE -- LOOK TO SEE WHETHER THE REGULATIONS WERE...
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| 00:16:05 |
Unidentified Speaker, -
WHETHER IT COMPLIED WITH FUNDAMENTAL DUE PROCESS. >> THAT'S SOMETHING QUITE DIFFERENT FROM SAYING THEY FOLLOWED THE REGULATIONS. THE REGULATIONS MIGHT...
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| 00:16:18 |
Unidentified Speaker, -
PROCESS AND IN THAT CASE YOU WOULD OVERRIDE THE MILITARY JUDGMENT, RIGHT? >> I BELIEVE THE DISTRICT COURT
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| 00:16:24 |
Unidentified Speaker, -
HAS THAT POWER, YOUR HONOR. THE ARTICLE III COURT HAS THAT
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| 00:16:28 |
Unidentified Speaker, -
POUR IN THE HABEAS PROCEEDING. >> THE BASIC QUESTION IS, IN THE ORDINARY CASE, NOT SOME UNUSUAL CASE, BUT IN THE ORDINARY CASE, IF THEY SET UP AN ORDINARY...
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| 00:16:43 |
Unidentified Speaker, -
ACCORDING TO ARTICLE I-6, AND IT WORKED, AND SO FORTH, THEN ISN'T THAT DUE PROCESS? I THOUGHT JUSTICE SCALIA -- IN
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| 00:16:53 |
Unidentified Speaker, -
RESPONSE TO JUSTICE SCALIA'S QUESTION YOU SAID THAT KNOW WOULDN'T SATISFY YOU BUT MY UNDERSTANDING WAS YOU WERE SAYING IN THE ORDINARY CASE THAT WOULD...
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| 00:17:21 |
Unidentified Speaker, -
THERE.
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| 00:17:22 |
Unidentified Speaker, -
A NEUTRAL DECISION
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| 00:17:23 |
Unidentified Speaker, -
MAKER. AN OPPORTUNITY TO
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| 00:17:25 |
Unidentified Speaker, -
PRESENT PROOFS IN ARGUMENT. OR, B, THEY DON'T DO THAT. NOW, IF THEY REFUSE TO DO THAT, THEN WHAT IN YOUR OPINION SHOULD THE HABEAS COURT DO? >> THEN...
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| 00:17:56 |
Unidentified Speaker, -
IT MIGHT BE NOT THAT THE HABEAS COURT HAS TO HOLD THE HEARING THAT THE MILITARY WOULD HAVE HELD BUT THAT THE HABEAS COURT HAS TO SAY TO THE MILITARY,...
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| 00:18:14 |
Unidentified Speaker, -
JUSTICE BREYER'S HAWAII POTH SIS SAID HOLD THE HEARING. >> WHAT INTERFERES WITH THE MILITARY MORE? FOR THE DISTRICT JUDGE TO HOLD THE HEARING THAT THE...
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| 00:18:39 |
Unidentified Speaker, -
DON'T WANT TO USE THE PROCEDURE WE USED IN VIETNAM? >> AS I RECALL THE ANSWER WAS WE ARE NOT REQUIRED TO AND WE DON'T CHOOSE TO DO SO. >> IS THAT PROCEDURE...
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| 00:18:52 |
Unidentified Speaker, -
IN THAT? THE MILITARY REGULATIONS THAT PROVIDE FOR HOW YOU TREAT PEOPLE IN WARTIME SITUATIONS TO SAY "I'M INNOCENT" ESSENTIALLY? >> NO, CONGRESS HAS...
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| 00:19:02 |
Unidentified Speaker, -
PASSED THESE RULES -- >> CONGRESS DID PASS SOMETHING CALLED THE AUTHORIZATION FOR
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| 00:19:09 |
Unidentified Speaker, -
USE OF MILITARY FORCE, DID IT NOT? >> YES, IT DID, YOUR HONOR. >> AND IT AFFECTS THIS VERY CONFLICT. >> YES, IT DOES, YOUR HONOR. >> WHAT APPLICATION...
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| 00:19:22 |
Unidentified Speaker, -
OF PEOPLE CAPTURED. >> THE AUTHORIZATION FOR
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| 00:19:26 |
Unidentified Speaker, -
USE OF MILITARY FORCE DOES NOT HAVE THE WORD DETENTION ANYWHERE IN IT. IT TALKS ABOUT USE OF FORCE AND IT IS THE EQUIVALENT,
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| 00:19:32 |
Unidentified Speaker, -
IN OUR VIEW, OF A DECLARATION OF WAR,
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| 00:19:34 |
Unidentified Speaker, -
ALTHOUGH IT IS NOT A FORMAL DECLARATION OF WAR.
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| 00:19:37 |
Unidentified Speaker, -
IT WOULD HAVE THAT
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| 00:19:38 |
Unidentified Speaker, -
SAME OPERATIVE EFFECT. AND IN OUR HISTORY, WE HAVE NEVER HAD ANY SUBSTANTIVE RIGHTS CONVEYED TO THE
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| 00:19:46 |
Unidentified Speaker, -
COMMANDER IN CHIEF BY THE MERE ACT OF A DECLARATION OF WAR. >> HASN'T INHERENTLY. CERTAINLY, WHEN THERE IS A DECLARATION OF WAR OR A RESOLUTION SUCH...
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| 00:20:11 |
Unidentified Speaker, -
ALIEN COMBATANTS, NO QUESTION ABOUT IT, BUT WHEN IT COMES TO U.S. CITIZENS YOU DON'T SIMPLY DETAIN THEM, YOU PROSECUTE THEM LIKE THEY DID WITH JOHN...
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| 00:20:21 |
Unidentified Speaker, -
LINDH. >> ARE YOU SAYING THAT -- IS INSUFFICIENT
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| 00:20:25 |
Unidentified Speaker, -
TO DETAIN? BECAUSE DECLARATIONS OF WAR
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| 00:20:30 |
Unidentified Speaker, -
AND MAUF HAS AUTHORIZED THE PRESIDENT TO USE HIS FORCE AND HIS CAPACITY AND HIS POWER WITHOUT HAVING AN EXTENSIVE LIST OF THE DIFFERENT THINGS THAT...
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| 00:20:43 |
Unidentified Speaker, -
THE WAR OF 1812 THERE WAS A GENERAL DECLARATION OF WAR BUT CONGRESS STILL PASSED A LIST OF SPECIFIC THINGS THE PRESIDENT COULD DO. OBVIOUSLY, A DECLARATION...
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| 00:21:05 |
Unidentified Speaker, -
FORCE AGAINST PERSONS HE DETERMINES PLANNED, AUTHORIZED, COMMITTED OR AIDED THE TERRORIST ATTACKS. >> THAT -- IF THAT IS INTERPRETED TO MEAN THAT HE...
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| 00:21:17 |
Unidentified Speaker, -
EXECUTIVE DETENTION ON ANYBODY THAT HE THINKS IS NECESSARY IN ORDER TO FULFILL THAT COMMAND, WE COULD HAVE PEOPLE LOCKED UP ALL OVER THE COUNTRY TOMORROW...
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| 00:21:33 |
Unidentified Speaker, -
GOING ON WITHIN OUR OWN BORDERS. CONGRESS DIDN'T INTEND TO -- WHEN IT PASSED THIS AUTHORIZATION FOR USE OF MILITARY FORCE TO AUTHORIZE WIDESPREAD DETENTIONS...
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| 00:22:15 |
Unidentified Speaker, -
I DON'T THINK CONGRESS REPEALED ANY LAWS WHEN THEY WROTE THE AUTHORIZATION FOR USE OF MILITARY FORCE. >> MR. DUNHAM, CAN I ASK YOU SORT OF A PRELIMINARY...
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| 00:22:32 |
Unidentified Speaker, -
THE DECLARATION? >> I HAVE ONLY RECENTLY BEEN ALLOWED TO TALK TO MY CLIENT, YOUR HONOR, AND EVERYTHING HE HAS TOLD ME THEY TELL ME IS
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| 00:22:41 |
Unidentified Speaker, -
CLASSIFIED SO I'M NOT ALLOWED TO CONVEY IT TO THE COURT THIS MORNING, BUT THE BEST I CAN SAY IS IN AN OVERALL, GENERAL WAY THERE IS A SUBSTANTIAL...
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| 00:22:55 |
Unidentified Speaker, -
BEHALF OF YOUR CLIENT TO SUPPLEMENT, OR TO CONTRADICT OR TO SUPPLEMENT THE INFORMATION IN THE MOABS DECLARATION? >> NO, BECAUSE IT'S WHILE THE MATTER...
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| 00:23:13 |
Unidentified Speaker, -
PROVIDED THAT WE HAD APPROPRIATE PROTECTIVE ORDERS IN PLACE SO THAT I COULD CONVEY CLASSIFIED INFORMATION TO THE COURT. >> MR. DUNHAM, ONE OF THE
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| 00:23:24 |
Unidentified Speaker, -
JUDGES IN THE FOURTH CIRCUIT -- JUDGE MOTT HAD A PROPOSAL SIMILAR TO THE ONE THAT WAS -- THAT WE SEE PROPOSED. INITIALLY, THE
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| 00:23:42 |
Unidentified Speaker, -
AFFIDAVIT IS TAKEN AS TRUE BUT THAT YOU HAVE AN OPPORTUNITY TO REBUT IT. IS THAT SATISFACTORY -- DOES THAT COMPORT WITH DUE PROCESS IN YOUR VIEW? >>...
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| 00:24:13 |
Unidentified Speaker, -
I SUGGEST IT'S SPELLED OUT IN THE U.S. CODE. WHEN CONGRESS PASSED THE AUTHORIZATION FOR USE OF MILITARY FORCE, IT DID NOT SAY WE SUSPEND HABEAS. HABEAS...
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| 00:24:49 |
Unidentified Speaker, -
FOR HABEAS CORPUS, YES. >> AND I PRESUME THAT ANYBODY WHO CLAIMS TO BE AN AMERICAN CITIZEN WOULD
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| 00:24:55 |
Unidentified Speaker, -
BE ENTITLED TO A HABEAS HEARING ON THE QUESTION OF WHETHER HE IS, IN
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| 00:25:00 |
Unidentified Speaker, -
FACT, AN AMERICAN CITIZEN, AND THEN THE SUBSEQUENT QUESTION OF WHETHER HE WAS CAPTURED ON THE FIELD OF COMBAT WHILE TAKING UP ARMS
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| 00:25:08 |
Unidentified Speaker, -
AGAINST THE UNITED STATES, RIGHT? >> THE MILITARY -- >> SO EVERY
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| 00:25:11 |
Unidentified Speaker, -
FOREIGNER CAPTURED, IF HE CLAIMS TO BE AN AMERICAN CITIZEN, WOULD BE ENTITLED TO THE KIND OF HABEAS HEARING YOU ARE TALKING ABOUT. >> NOT NECESSARILY...
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| 00:25:29 |
Unidentified Speaker, -
CASE THERE IS NO DISPUTE ABOUT THE
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| 00:25:31 |
Unidentified Speaker, -
MAN'S CITIZENSHIP. THERE IS A BIRTH CERTIFICATE IN THE RECORD. THE MILITARY -- THEY'RE THE ONES THAT DETERMINED HE'S A CITIZEN -- >> I'M NOT TALKING...
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| 00:25:38 |
Unidentified Speaker, -
THIS CASE, I'M TALKING ABOUT THE PRINCIPLE THAT YOU ARE ASKING US TO ADOPT AND HOW IT WOULD APPLY. IF THERE IS A HABEAS CORPUS RIGHT FOR AN AMERICAN...
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| 00:25:58 |
Unidentified Speaker, -
IS A RIGHT THAT'S BEEN HERE SINCE THIS COUNTRY WAS FOUNDED AND IT DOESN'T JUSTIFY TAKING AWAY A CITIZEN'S RIGHT BECAUSE SOME SHAM CLAIM MIGHT BE MADE...
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| 00:26:13 |
Unidentified Speaker, -
WHETHER HE'S CAPTUREDOT FIELD OF BATTLE YOU CAN'T SAY THAT WITHOUT ASSURANCE. >> IF IT PLEASE THE COURT I WOULD LIKE TO SAVE THE BALANCE OF MY TIME...
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| 00:26:26 |
Unidentified Speaker, -
WELL, MR. DUNHAM. MR. CLEMENT, WE WILL HEAR FROM YOU. >> MR. CHIEF JUSTICE, AND MAY IT PLEASE THE COURT, PETITIONERS CONTEND THAT THE GOVERNMENT CATEGORICALLY...
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| 00:26:42 |
Unidentified Speaker, -
THE AUTHORITY TO HOLD HAMDI AS AN ENEMY COMBATANT BUT IT HAS BEEN WELL ESTABLISHED,
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| 00:26:47 |
Unidentified Speaker, -
AND LONG ESTABLISHED, THAT THE GOVERNMENT HAS THE AUTHORITY TO HOLD BOTH UNLAWFUL ENEMY COMBATANTS AND LAWFUL PRISONERS OF WAR
|
| 00:26:56 |
Unidentified Speaker, -
CAPTURED ON THE BATTLEFIELD IN ORDER TO PREVENT THEM FROM RETURNING TO THE BATTLE. OVER 10,000 UNITED STATES TROOPS REMAIN ON THE FIELD OF BATTLE...
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| 00:27:37 |
Unidentified Speaker, -
THERE IS UJAMA. THEY ARE ALSO BEING KEPT AWAY FROM RETURNING ANYPLACE BECAUSE THERE ARE CRIMINAL CHARGES AGAINST THEM. THEN THERE IS HAMDI, PADILLA...
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| 00:28:26 |
Unidentified Speaker, -
ARTICLE III SYSTEM, BUT THERE ARE PLENTY OF INDIVIDUALS WHO ARE EITHER -- HAVE A PARAMOUNT INTELLIGENCE VALUE THAT PUTTING THEM INTO THE ARTICLE III...
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| 00:29:06 |
Unidentified Speaker, -
FURTHER PURPOSE. CAN YOU GIVE ME ANY IDEAS OF THE OUTER BOUNDS OF HOW LONG THE DETENTION WOULD TAKE IN ORDER TO GET THE VALUE FROM THE INTERROGATION...
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| 00:29:42 |
Unidentified Speaker, -
ACCESS TO COUNSEL BECAUSE THE MILITARY INTELLIGENCE EXPERTS WHO MAKE THESE JUDGMENTS HAVE MADE THE JUDGMENT THAT ACCESS TO COUNSEL AT THIS POINT DOES...
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| 00:30:17 |
Unidentified Speaker, -
PROCESS? >> I MEAN, I SUPPOSE YOU COULD. ONE THING I WOULD POINT YOU TO, JUSTICE KENNEDY, IS THE DECLARATION OF VICE ADMIRAL TEKULVY AT APPENDIX 75...
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| 00:30:38 |
Unidentified Speaker, -
COULD TAKE EVIDENCE OF THE QUESTION GENERALLY. I SUPPOSE IF THERE WERE A SITUATION IN WHICH THERE WAS A HABEAS PETITION FILED AND THERE WAS AN INITIAL...
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| 00:31:51 |
Unidentified Speaker, -
ALL 4001A SAYS IS REFERRING TO AN ACT OF CONGRESS. WHETHER IT HAS EXCHANGE TO DO WITH THE DETENTION OF ENEMY COMBATANTS BY THE MILITARY BUT TO THE EXTENT...
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| 00:32:09 |
Unidentified Speaker, -
OF FORCE PROVIDES MORE THAN AMPLE -- >> IT CERTAINLY DID -- MAY I ASK ONE MORE QUESTION? I WILL CONCEDE, CERTAINLY, AT LEAST FOR THE SAKE OF ARGUMENT...
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| 00:32:33 |
Unidentified Speaker, -
TIME. THE FACT IS, I WILL ASSUME THAT ON SEPTEMBER 12, WITHOUT ANY AUTHORIZATION FROM CONGRESS AT ALL, THE PRESIDENT COULD HAVE TAKEN ACTION IN RELATION...
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| 00:34:00 |
Unidentified Speaker, -
MAKE IS THAT THE POLITICAL BRANCH TAKE A -- MAKE A FURTHER ASSESSMENT, AND A MORE SPECIFIC ONE. I'M NOT DENYING THAT THERE IS A
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| 00:34:11 |
Unidentified Speaker, -
LOT GOING ON BUT THERE HAS ALSO BEEN TIME. >> I REALIZE THAT, JUSTICE SUTTER. THEN I WILL COME BACK TO THE 10,000 GROUPS STILL ON -- 10,000 TROOPS...
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| 00:34:36 |
Unidentified Speaker, -
FINELY RETICULATED PROCEDURE OR TRYING TO PRECLUDE THE TEDETENTION OF CERTAIN INDIVIDUALS ONE OF TWO THINGS WOULD HAPPEN, THE EXECUTIVE BRANCH WOULD...
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| 00:35:37 |
Unidentified Speaker, -
AGAIN, JUSTICE SUTTER, I CAN'T IMAGINE THAT THE RULE IS THAT THE EXECUTIVE SOMEHOW SUFFERS IF CONGRESS DOESN'T FILL THE BREACH, BECAUSE THE LAST WORD...
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| 00:35:58 |
Unidentified Speaker, -
VERY WELL BE THAT THE EXECUTIVE HAS POWER IN THE EARLY EXIGENCIES OF AN EMERGENCY BUT THAT, AT SOME POINT IN THE INDEFINITE FUTURE, THE OTHER POLITICAL...
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| 00:36:12 |
Unidentified Speaker, -
IS TO -- IS TO CONTINUE. >> BUT JUSTICE SUTTER, THEY HAVE AUTHORIZED THE USE OF FORCE. THEY RECOGNIZE -- >> WITHOUT ANY SPECIFIC REFERENCE TO THE...
|
| 00:36:37 |
Unidentified Speaker, -
ABSOLUTELY. >> SO IF IT EXPIRES AFTER 2 1/2 YEARS IT DOES NOT MEAN YOU
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| 00:36:42 |
Unidentified Speaker, -
WOULD HAVE TO GIVE HIM AFTER 2 1/2 YEARS OR GIVE HIM A HEARING AFTER 2 1/2 YEARS, IT MEANS YOU WOULD HAVE TO LET HIM GO BACK TO AFGHANISTAN AFTER
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| 00:36:50 |
Unidentified Speaker, -
2 1/2 YEARS, WOULDN'T IT? >> IT WOULD, JUSTICE -- >> IT WOULD. >> THAT'S WHY I FIND IT SO REMARKABLE
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| 00:36:57 |
Unidentified Speaker, -
THAT WE HAVE TO
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| 00:36:59 |
Unidentified Speaker, -
CONFRONT THIS QUESTION WHEN OUR TROOPS ARE STILL ON THE GROUND. >> ALSO, THE WORDS ARE "NECESSARY AND APPROPRIATE" AND ALSO, THE WORDS IN THE CONSTITUTION...
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| 00:37:12 |
Unidentified Speaker, -
CARTA WERE "ACCORDING
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| 00:37:14 |
Unidentified Speaker, -
TO LAW" AND WHATEVER FORM OF
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| 00:37:16 |
Unidentified Speaker, -
WORDS IN ANY OF THOSE DOCUMENTS THERE ARE, IT SEEMS TO REFER TO ONE BASIC IDEA THAT'S
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| 00:37:23 |
Unidentified Speaker, -
MINIMAL. THAT A PERSON WHO CONTESTS SOMETHING OF IMPORTANCE IS ENTITLED TO A NEUTRAL DECISION-MAKER AND AN OPPORTUNITY TO PRESENT PROOFS AND ARGUMENTS....
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| 00:38:54 |
Unidentified Speaker, -
MILITARY PROCESS. IT MAY NOT HAVE BEEN THE EXACT PROCESS -- >> THAT WASN'T THE QUESTION I ASKED. THE QUESTION I ASKED, IS THERE ANY REASON WHY THE...
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| 00:39:18 |
Unidentified Speaker, -
BATTLEFIELD, SOMETHING TWO YEARS LATER, NOT SOME KIND OF THING WHERE YOU HAUL IN WITNESSES BUT SOMETHING THAT'S PRACTICAL INSOFAR AS YOU GET EVIDENCE...
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| 00:39:51 |
Unidentified Speaker, -
THREE MILITARY OFFICERS WHO DO
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| 00:39:54 |
Unidentified Speaker, -
HAVE A VERY QUICK HEARING --
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| 00:39:55 |
Unidentified Speaker, -
THE PURPOSE OF WHICH PRIMARILY IS TO FIGURE OUT NOT WHETHER SOMEBODY IS COMPLETELY INNOCENT BUT TO FIGURE OUT WHETHER THEY ARE PROPERLY CLASSIFIED...
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| 00:40:27 |
Unidentified Speaker, -
HAS NOT NO -- HAS NO APPLICATION HERE. THAT PROVISION -- >> WELL, PERHAPS NOT, BUT WE'RE HERE ON HABEAS. DO YOU AGREE
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| 00:40:35 |
Unidentified Speaker, -
THAT HE'S ENTITLED TO BRING A HABEAS ACTION? >> WE DO AGREE THAT HE'S ENTITLED TO BRING A HABEAS ACTION -- >> OK, SO THEN WE HAVE TO DECIDE, THEN, TO...
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| 00:40:52 |
Unidentified Speaker, -
REQUIRED? >> I DON'T THINK IT'S REQUIRED ESPECIALLY IN A SITUATION LIKE THIS WHERE ALTHOUGH HAMDI
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| 00:40:58 |
Unidentified Speaker, -
DID NOT RECEIVE AN ARTICLE V HEARING BECAUSE IT WAS
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| 00:41:02 |
Unidentified Speaker, -
INAPPLICABLE HE DID RECEIVE MILITARY PROCESS. WHEN HE WAS ORIGINALLY TURNED OVER TO THE UNITED STATES FORCES BY THE NORTHERN ALLIANCE, OUR MILITARY ALLIES,...
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| 00:41:15 |
Unidentified Speaker, -
10,000 INDIVIDUALS OUT OF U.S. CUSTODY. SO HE RECEIVED THAT PROCESS. TO BE SURE, IT'S A MILITARY PROCESS, BUT IT IS THE KIND OF PROCESS THAT PRISONERS...
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| 00:42:50 |
Unidentified Speaker, -
REPRESENTATION YOU HAVE JUST MADE TO THE
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| 00:42:52 |
Unidentified Speaker, -
HABEAS COURT? >> JUSTICE KENNEDY, I'M NOT POSITIVE WHAT THE ULTIMATE MINIMUM THAT THE HABEAS STATUTES WOULD REQUIRE IN THIS CONTEXT, BUT WE DO THINK...
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| 00:43:08 |
Unidentified Speaker, -
IMPERATIVES FOR THIS SITUATION ARE THAT THE HABEAS CORPUS WRITS AVAILABLE, FIRST TO MAKE
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| 00:43:13 |
Unidentified Speaker, -
LEGAL CHALLENGES TO THE DETENTION ALONG THE LINES OF 4001-A CATEGORICALLY, AND WE ALSO THINK IT APPROPRIATE FOR THE UNITED STATES TO COME IN WITH...
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| 00:44:13 |
Unidentified Speaker, -
STATEMENT AT ANY POINT THERE HAMDI, ALTHOUGH THE CLAIM BEFORE US IS IS THAT HE WOULD DISPUTE WHAT'S IN THE MOABS AFFIDAVIT BUT HE DOESN'T HAVE AN OPPORTUNITY...
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| 00:44:47 |
Unidentified Speaker, -
CARRIERRINGCONNECT 1200 WITH RESPECT, JUSTICE GINSBURG, HE HAS AN OPPORTUNITY TO EXPLAIN IN HIS OWN WORDS. >> DURING INTERROGATION? >> DURING THE INITIAL...
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| 00:45:19 |
Unidentified Speaker, -
EXTREME THAT IT SHOULD NOT BE REQUIRED? >> NO, JUSTICE O'CONNOR AND LET ME SAY TWO THINGS. WHEN THE INITIAL
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| 00:45:25 |
Unidentified Speaker, -
SCREENING CRITERIA ARE
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| 00:45:26 |
Unidentified Speaker, -
APPLIED IN THE FIELD FOR ALL INTENTS AND PURPOSES THAT IS A NEUTRAL
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| 00:45:30 |
Unidentified Speaker, -
DECISION-MAKER. AS I SAID BEFORE, THE ARMY IS NOT INTERESTED IN HOLDING PEOPLE AS ENEMY COMBATANTS THAT DON'T QUALIFY FOR THAT AND DON'T POSE A THREAT....
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| 00:45:42 |
Unidentified Speaker, -
IT THE PLAN ON A GOING-FORWARD BASIS IS TO PROVIDE INDIVIDUALS LIKE HAMDI, LIKE PADILLA WITH THE EQUIVALENT OF THE ANNUAL REVIEW PROCESS THAT'S LAID...
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| 00:46:16 |
Unidentified Speaker, -
THE OPPORTUNITY TO GO THROUGH A NEUTRAL TRIBUNAL -- >> YES, BUT YOU'RE ASSUMING HE HAS NO RIGHT TO COUNSEL, AREN'T YOU? >> JUSTICE STEVENS, WHAT WE'RE...
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| 00:46:25 |
Unidentified Speaker, -
HAS NO RIGHT TO COUNSEL THAT IS AUTOMATIC AND AS OF RIGHT -- >> IF HE COULD GET HIS
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| 00:46:30 |
Unidentified Speaker, -
OWN COUNSEL, WOULD HE BE ENTITLED TO CONSULT WITH HIS COUNSEL
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| 00:46:34 |
Unidentified Speaker, -
DURING THE PRELIMINARY STAGES OF HIS DETENTION? >> NOT AT THE PRELIMINARY STAGES, IF THE GOVERNMENT HAS MADE
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| 00:46:40 |
Unidentified Speaker, -
A DETERMINATION THAT ACCESS TO COUNSEL WOULD
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| 00:46:43 |
Unidentified Speaker, -
INTERFERE WITH THE INTELLIGENCE-GATHERING PROCESS. >> ARE THERE INDICATIONS -- IT SOUNDS FROM YOUR ARGUMENT THAT THE PRINCIPAL INTERESTS THAT
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| 00:46:50 |
Unidentified Speaker, -
THE GOVERNMENT WANTS TO ADVANCE IS THE ABILITY TO INTERROGATE THE PERSON FOR A SUFFICIENT LENGTH OF TIME TO DETERMINE WHETHER THEY WILL GET VALUABLE...
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| 00:46:57 |
Unidentified Speaker, -
OR NOT AND TO DENY HIM COUNSEL DURING THAT PERIOD BECAUSE HE MAY NOT BE AS WILLING TO TALK. THERE ARE TWO THINGS ABOUT THAT I WANTED TO ASK YOU ABOUT....
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| 00:47:06 |
Unidentified Speaker, -
HAVE YOU CONSIDERED THE POSSIBILITY THAT PERHAPS A LAWYER WOULD HAVE EXPLAINED TO THIS MAN THAT, IF YOU DO GIVE SOME INFORMATION YOU WON'T HAVE ...
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| 00:48:08 |
Unidentified Speaker, -
MINOR MATERIAL SUPPORT CHARGE OR WHATEVER AND PROVIDE THE GOVERNMENT WITH EVERYTHING THAT YOU HAVE" AND THAT IS PART OF THE ANSWER TO JUSTICE GINSBURG'S...
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| 00:50:10 |
Unidentified Speaker, -
TALK ABOUT A DETAINEE IN 1942, THEY'RE NOT GOING TO KNOW HOW LONG WORLD WAR II IS GOING TO LAST AND THEIR DETENTION MAY SEEM INDEFINITE BUT THOSE DETENTIONS...
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| 00:50:24 |
Unidentified Speaker, -
HARD CORE AL QAEDA OPERATIVES THE END OF THE WAR IS A VERY DIFFICULT THING TO PERCEIVE. BUT WITH RESPECT TO SOMEBODY CAPTURED ON THE BATTLEFIELD WITH...
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| 00:51:19 |
Unidentified Speaker, -
SIGNATORE TO CONVENTIONS AGAINST TORTURE. THE UNITED STATES IS GOING TO HONOR ITS TREATY OBLIGATIONS. >> YOU SAID SOMETHING ABOUT SELF-EXECUTING IN CONNECTION...
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| 00:51:33 |
Unidentified Speaker, -
TORTURE COMBENGS? >> JUSTICE
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| 00:51:36 |
Unidentified Speaker, -
GINSBURG, I -- TORTURE CONVENTION? >> JUSTICE BEGINS BIRG -- GINSBURG,
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| 00:51:40 |
Unidentified Speaker, -
I HAVE THE SENSE YOU HAVE THE TORTURE PROVISION ACT WHICH DOESN'T APPLY TO THE
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| 00:51:45 |
Unidentified Speaker, -
UNITED STATES SO I'M NOT SURE THERE WOULD BE ANY OTHER BASIS FOR BRINGING A PRIVATE CAUSE OF ACTION AGAINST THE UNITED STATES, BUT AS THIS COURT NOTED...
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| 00:51:56 |
Unidentified Speaker, -
DECISION THE FACT THAT A TREATY IS GOING TO BE
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| 00:51:59 |
Unidentified Speaker, -
ENDORSED OTHER THAN THROUGH ITS CAUSE OF ACTION DOES NOT MEAN IT'S NOT GOING TO CONSTRAIN THE ACTIONS OF THE EXECUTIVE BRANCH -- I DON'T WANT THERE TO...
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| 00:53:05 |
Unidentified Speaker, -
NO OPPORTUNITY TO PRESENT PROOFS IN EVIDENCE, WITH NO OPPORTUNITY TO ON HEAR THE OTHER SIDE, IF THAT --
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| 00:53:09 |
Unidentified Speaker, -
IN YOUR OPINION IF THAT GOES ON AND ON, LET'S SAY IT'S THE HUNDRED YEARS' WAR, IS THERE NO OPPORTUNITY FOR A COURT TO SAY THAT THIS
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| 00:53:18 |
Unidentified Speaker, -
VIOLATES FOR AN AMERICAN CITIZEN THE ELEMENTARY DUE PROCESS THAT THE CONSTITUTION GUARANTEES? >> AS YOU INDICATED EARLIER, JUSTICE BREYER, THE COURTS...
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| 00:53:45 |
Unidentified Speaker, -
OF THE TIME BECAUSE IT MAY WELL BE THAT THE PRESIDENT OR CONGRESS WILL AT SOME POINT SAY THE WAR IN AFGHANISTAN IS NO LONGER A MATTER OF CONCERN AND...
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| 00:53:57 |
Unidentified Speaker, -
THINK THAT IS THE ONLY ANSWER THAT YOU HAVE GIVEN SO FAR TO JUSTICE BREYER'S QUESTION AND TO JUSTICE O'CONNOR'S QUESTION. AM I WRONG? >> JUSTICE SUITOR...
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| 00:54:26 |
Unidentified Speaker, -
PRESIDENT SAYS SO -- >>S I CAN IMAGINE IT, AND I CAN ALSO IMAGINE THAT CONCERN ABOUT AFGHANISTAN WILL GO ON AS LONG AS THERE IS CONCERN ABOUT AL QAEDA...
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| 00:54:47 |
Unidentified Speaker, -
OVER? >> WITH RESPECT, JUSTICE SUTTER I THINK THERE MAY BE A ROLE FOR THE COURTS IN DEALING WITH THE TIMING QUESTION AT SOME POINT. >> I'M TAKING AWAY...
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| 00:55:09 |
Unidentified Speaker, -
DETENTION. >> THERE IS A CONTINUING AND MODEST ROLE FOR THE COURTS. THE HABEAS
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| 00:55:15 |
Unidentified Speaker, -
COURTS REMAIN OVER -- THE IMPORT OF ONE OF JUSTICE SUTTER'S QUESTIONS IS THAT IT'S ALREADY TOO LONG, AND IF SOMEBODY RAISES THAT CLAIM, IF THERE IS ANOTHER...
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| 00:55:32 |
Unidentified Speaker, -
IN COURT VEHEMENTLY SAYING THERE IS NO ROLE FOR THE COURT THERE, THERE ARE TROOPS STILL ON THE GROUND IN AFGHANISTAN, IT MAKES NO SENSE WHATSOEVER TO...
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| 00:56:09 |
Unidentified Speaker, -
A MEANS FOR MILITARY PROCESS TO GO FORWARD. IT IS NOT THE INTERROGATOR, THE ORIGINAL SCREENING TEAM ON THE GROUND IN AFGHANISTAN THAT RELEASED 10,000...
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| 00:56:28 |
Unidentified Speaker, -
THAT WILL GO FORWARD. >> THAT WE DON'T HAVE YET. IT IS STILL ON THE DRAWING BOARD, THE ANNUAL REVIEW. >> THAT IS QUITE CORRECT, JUSTICE GINSBERG....
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| 00:56:51 |
Unidentified Speaker, -
ADVOCATE AND CAN STAND UP HERE AND MAKE THE UNREASONABLE STAND
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| 00:56:56 |
Unidentified Speaker, -
REASONABLE. IT IS TRUST US, WHO IS SAYING, TRUST US? THE EXECUTIVE BRANCH. AND WHY DO WE HAVE THE GREAT RIFF BECAUSE WE DIDN'T TRUST THE
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| 00:57:07 |
Unidentified Speaker, -
EXECUTIVE BRANCH WHEN
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| 00:57:08 |
Unidentified Speaker, -
WE FOUNDED THIS GOVERNMENT. THAT IS WHY THE GOVERNMENT SAYING TRUST US IS NO EXCUSE FOR TAKING AWAY AND DRIVING A TRUCK THROUGH THE RIGHT OF HABEYUSS...
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NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.