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Toobin: Court did not define 'indefinitely'


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Senior legal analyst Jeffrey Toobin
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Yaser Hamdi can be held without charges, but can challenge his treatment in court.
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(CNN) -- The U.S. Supreme Court delivered three rulings Monday on cases that stem from the Bush administration's war on terror. The rulings mean that U.S. and non-U.S. citizens alike seized as potential terrorists can challenge their treatment in U.S. courts. (Monday's rulings)

CNN's Betty Nguyen talked with CNN's senior legal analyst Jeffrey Toobin about the rulings.

NGUYEN: Let's start with the [U.S.-born Yaser Esam] Hamdi case first. Now, the court has ruled that he can challenge his treatment. But what does it say about the president's power to keep an American citizen detained without charges and without trial?

TOOBIN: Well, Betty, I'm still trying to get my own bearings here and figure out exactly what was said.

But as far as I can tell, what was said in the Hamdi ruling was, yes, it is OK for the government to seize and hold him without charges, at least for some period of time. But he does have the right to a lawyer and he does have the right to go to federal court and say, hey, you've got the wrong guy. Or, I didn't do what you say I did.

So they are definitely, in both of these cases, saying that the administration cannot hold people without lawyers, without charges, indefinitely.

NGUYEN: But it's kind of conflicting because if you can hold them without charges for at least a little while, how do they know when they can go before the court and express their concerns and fight it?

TOOBIN: Well, that is one of the many things that I think we're going to be trying to figure out.

What appears to be going on here is some sort of compromise because obviously this is a court that feels very strongly about national security, about the president's ability to conduct foreign affairs, to conduct military affairs. Yet it also is responsible for the rule of law.

So here you have individuals [who] the government says are very dangerous, ... so dangerous we're not even going to admit them to our legal system. That is too far, apparently, for the Supreme Court. The Supreme Court is saying if they are as dangerous as you say they are, show a federal court.

Just an important obvious point to emphasize, but it is worth talking about, is that even though the Guantanamo inmates have won their case and Hamdi at least at some level ... won his case, nobody's getting released anytime soon. ... All that these decisions mean is that these [men], Hamdi and the Guantanamo inmates, have the right to challenge their incarceration.

But no one has said anything today suggesting that these inmates are going to be released anytime soon -- or ever.

NGUYEN: Does it give any implication as to when they can begin that challenge?

TOOBIN: Well, that I would expect would be pretty close to immediately. I imagine their lawyers will go into court tomorrow saying we want a hearing. ... Anybody who knows anything about the legal system knows that nothing happens tomorrow. Or almost nothing happens tomorrow.

So the process will begin to grind forward in the next few months. But I expect that the lawyers here will take advantage of their victory and go to court and say, hey, we want to get out.

NGUYEN: In the Gitmo case, the 6-3 decision, do you think that was made because the Supreme Court said even though this is not on American soil, Americans are controlling the situation there, and therefore, they are allowed to American law?

TOOBIN: Yes, the American government was in a very difficult legal position there. I've been to Guantanamo Bay. I've been to that base.

What the government was arguing was, this was foreign territory. This was essentially like a battlefield. So the federal courts have no right to have any control over what goes on there.

If you go to Guantanamo Bay, if you see how those prisoners are being held, that is about the most secure, the most unassailable prison in the world, much less in the United States. So the government arguing they are somehow in jeopardy there, that the government doesn't have control over the prisoners, that's something that the Supreme Court simply rejected.

And if you've been to Guantanamo Bay, you can see why, because it is under absolute and total American control.


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