i. alone welcome to cross talk we're all things are considered i'm peter lavelle a promise made a promise not the prison facility at guantanamo bay remains open and not to be closed any time soon many of the inmates there have been cleared of any wrongdoing nonetheless they languish what does get most say about obama's integrity and what does get more say about america's commitment to justice and due process. to cross-talk the hunger strike in guantanamo bay i'm joined by thomas wilner in washington he is head of the international trade and investment practice that she remained in sterling also in washington we have charles stimson he is the chief of staff and senior legal fellow at the heritage foundation and in nashville we crossed him. he's an assistant professor of law at vanderbilt law school or

a german cross-talk rules and i think that means you can jump in anytime you want to thomas can you talk us through why did the hunger strike started getting and what's going on there at this moment with the hunger strike started because of some change in conditions actually the people running that camp changed and they changed some of the conditions a lot of the detainees felt that their coronas were being mishandled and they asked to give up the koran and when that didn't happen some went on strike now the strike is for a different reason i think it's really the top generals said it's because of despair and they're devastated that bases are being closed that they're not getting hearings that more than half of the people have been cleared of any wrongdoing and they're still sitting there and they're desolate. ok charles you want to weigh in their desperation well i don't i don't doubt.

explanation of the current reason why detainees are gaijin a political protest in the form of a hunger strike hunger strikes have happened at get mo almost since the inception of get mo for a variety of reasons. belief that there qur'an has been mistreated and belief that they're not getting justice desperation this is not unique to charlie doesn't them are they getting just like the world focus not only are they getting justice well i think that the the detainees who have been cleared for transfer yet have not found a home to go to because the government hasn't been able to find them a home i think they're the ones that justifiably are the most in despair the others are being held as law who are prisoners and the others are awaiting trial military commissions so that's that's three different pots of detainees thomas you in a way in there before we go to each other let me just say and i want to get that but i just want to say that's not right what charles said the people aren't there

because they haven't been able to find homes that's wrong there are plenty of people with that would take them it's because congress has imposed restrictions making it difficult to transfer people even if there are homes and the president hasn't had the guts to push through that so there are homes for these people they've been cleared and they're sitting there and they've been cleared for more than three years some for more than five years so it's disgraceful v.j. i'm sorry b.j. go ahead jump in. well i mean i think that you know the tenor of the discussion is exactly right about this situation i think going back to the days of the bush administration has been a large number of people that the government has wanted to release the u.s. certainly has no interest in holding people any longer than they have to so it isn't a matter of lack of will on the part of the government but there's been a range of political issues international political issues domestic political issues that have prevented these transfers from happening but i think what really comes across is that what really needs to happen if we want to be able to move some of these people is to have an honest political dialogue here in the united states

about who these people are what is the level of threat that we're absorbing before releasing them and why it's in the interest of the united states including with respect to protection of human rights in order to release some of these people from guantanamo charles that seems reasonable you know let me go to charles go to charles i don't want charles yeah i mean i actually i actually agree mostly with what b.j. says into a point that tom makes i agree with that that congress has imposed restrictions the democratic controlled house and senate initiated and passed laws against democratic president obama prevented in preventing him from one transferring detainees at gitmo to the united states and to spending money to purchase or upgrade facilities here united states for the purpose of bringing guantanamo detainees here but the the thing that tom is really pointing to is the requirement that the secretary of defense signed off on any detainee transfer off the island

such that he would have to say it's in this interesting united states and so to tom's point there is a lack of political courage or will for any secretary defense both bob gates panetta and now hagel to do that and that will require an extraordinary act on the sec def spark to do that thomas go ahead. v.j. discusses theirs for. a nice academic discussion we're beyond that this is a matter of simple justice four years ago obama said he'd close to space he instituted a presidential task force to look at each of the people down there eighty six of those remaining eighty six of the hundred sixty six there were cleared they were clear they say there are no security threat what's happening in our democracy is people on one side of the aisle played to fear and said don't let anyone out even though these people record and so they impose rules that restricted the transfer of

everyone obama has the power to overcome that by making a waiver these are people who are cleared there's no political will to do this this isn't just we could study it all we want i've got clients who have been there for of eleven years who are innocent people who've never seen their children they should be released and obama should get the gumption to do it and leaders out of this b.j. got a great stain on the united states and i think this is a complicated thomas i think this is a lot more complicated than the way the thomas makes me now back when i was working on these issues in the bush administration we worked very closely on reviewing a large number of files and charles will talk about this too and as as good as the review process is we tried to create the reality is that some of the people that we think are not involved in terrorist activity are going to return home and are going to be involved in terrorist activity we've seen detainees return to kuwait that when blew themselves up in iraq we saw detainees return to saudi arabia they have

turned up with al qaeda in the arabian peninsula in yemen so no president rather crowded although it doesn't matter who is this is going to be i want to say is not let me finish please it's going to be able to say with certainty that people that are being released are not going to gauge in terrorist activity when when these review process he's people because the government thinks it's because the government thinks that the threat level. that these people pose can be managed it's not a stage that they are either in a sense or a zero threat which is the which i think is the is the mists of. time they go ahead to they're going to wait a second i think you're confusing this you've got to understand the obama administration set up a joint task force of all the top intelligence defense and criminal law enforcement agencies they collected together all the information that the bush administration didn't even have together and they had reviews on each detainees now that they

determined each detainees are absolutely innocent no but for eighty six of these men they decided that there is no threat from these people and we should not be holding them now you could say they should do that again and again but they did it it was a year long review in detail of each of these people and those people are still there the bombing ministration also said they're not cleared what. have review processes in the future there haven't been any what's happened in our democracy is one hundred sixty six arab men don't have a constituency in their favor and there are their plight there and just has been taken over by the economy by other things and they're neglected let's get to the bottom of this this is wrong it's a stain on us p.j. go ahead reply and all the gobbledygook is what i just said i'm not all. what i would just say to that to be quite clear here is i'm not debating the fact that the administration both of ministrations frankly should be able to release the people that they think they can release consistent with american security without

restrictions from congress i think that's a mistaken policy on the part of congress the point i'm making is that congress has put the president in an impossible position any president and possible position to promise the people that are going to be released from guantanamo are not going to engage in terrorist activity after they've returned and what i can tell you from personal experience is that no matter how certain the government thinks they are the people that are being held at guantanamo are not going to gauge in terrorist activity they cannot be absolutely certain they simply cannot we have had people that we thought it would be saved return they returned home and it turns out they returned a terrorist activity that is just a fact and so as long as congress is going to present i have to jump in here but i will promise that no terrorists go to charles it's not going to happen is going to charles. i agree one hundred percent with b.j. on this look to think that guantanamo population guantanamo is a distinct and unique population of individuals separate apart from any other

person who's been involved in or potentially involved in activity or criminal terrorist is ridiculous of course there are people who have left who want to be on the other and more people left guantanamo more people you're making an argument in absurdum. the fact is that the detainees at guantanamo seven hundred seventy nine at its peak have been through multiple layers of review processes at the bush administration and of course as you point out in the obama administration and i will give you this point the obama administration had a smaller group of people to look at and what they also did is they decided to up the risk quotient that they're willing to take and that's part of the reason that eighty six were cleared for transfer that doesn't mean they were innocent no one even obama's ration didn't say they were in it what you say is they are going to you we are transfer thomas go ahead before we go to the break so but they've cleared their right they've been cleared charles they've been cleared yeah just

like you go to make sure that your hunger is something very serious going on here something absurd is going on here many have gone back to doing over searches that were going many have gone back to recidivate activity no no wait a second no wait a second you think and many of them are certain many of the people you know wait no no you say that i'm saying something absurd i don't even understand it i'm not saying they're unique population i'm not saying are you saying all of them were terrorists that's not what anyone found many of these people were killed i'm saying i don't i can't even assume that all of those were picked up by general i don't have to jump in here we're going to go to a short break and after that short break we'll continue our discussion again stay with our. legal.

you know how sometimes you see a story and it seems so for life you think you understand it and then you glimpse something else and you hear or see some other part of it and realized everything you thought you knew you don't know i'm tom harpur welcome to the big picture. is easy to. meet. some. folks.

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the international landlord in the very heart of moscow. welcome back to cross talk we're all things are considered i'm peter lavelle to mind you were discussing the hunger strike at guantanamo bay. ok if you change seems to me the only way you get out of get mo is in a coffin these days how do you respond to that well i know what i think the propaganda problem is that we have not really had much of a dialogue here in the united states about water or long term strategy and so if

that's really cold comfort for these guys isn't it i mean to be honest if they don't if they've been cleared they've been cleared. it that is you know part of the story is that they have been cleared but a bigger part of the story is there really has not been a discussion in the united states about what does it mean what is the sensible terrorism policy given both human rights constrains and the need to protect the american people i'll just give you one quick example of that i think charles made the point earlier which is that the obama administration was willing to undertake a greater amount of risk with respect to some releases than the bush administration was and that's partially true although after the underwear bombing happened the attempted underwear bombing happened northwest plane christmas two thousand and nine now the obama administration which initially was in favor of some returns to yemen really pulled back itself from the idea of sending people back to yemen basically slow walking it thinking you know if we send anybody back to yemen and they return to the fight it's going to be

a political headache for us so i think if there's going to be a solution here it's going to have to be a bipartisan decision that this is the level of risk we're willing to take with respect to the threat that people are going to return to the fight we may return people anyway because it's you know our sense of what the american sense of what the right thing to do is but it's not without risk it's risk that we're willing to absorb thomas you want to jump in larry and i think you know i really think it's missing the point it's missing the point victory i agree we should have an open debate in this country about what are terrorists or terrorism policy should be we should have a debate we should never have a debate in this country about the use of torture which i think is one but we never have an open debate about detaining people let's have that debate but these eighty six men have been cleared after a thorough or thorough review they should not be held any longer while we have that debate and it's a political debate we did a detailed review for these people we have said we did more detail on the other two

word initially clear that there were no wait wait a second that's a different issue they should be let out it's not enough to say we've had a hunger strike there is an injustice. to these men and while we in our political. update to it aren't able to solve things these men should not suffer charles you want to jump in there i think there's a lead we going to charles though here i'm going to talk about i'm going to let you let me let me let me jump in we've had almost a decade of debate and dialogue and discussion and writings and panels congressional hearings on only the tension interrogation but the things that the jays encouraging more of and i current i agree with that we need more we've also had the same type of debate about interrogation and indeed torture hearings that cetera and eat each of the three of us has written on these have advocated for various positions over the last decade i think the thing we can actually all agree on and perhaps that's not the point of the show is that one narrow point in that is this. and that is this there was

a window of opportunity when president obama first came to office when his party controlled the senate his party controlled the house and he signed that executive order with some flourish at the white house ordering the closure of guantanamo within a year when he had a two year window of opportunity to use the political capital and the opportunity of his new presidency to ram through the closure of guantanamo required political logistical diplomatic and other measures to get coming together the same time but he did not use the political capital he needed to to close at that time and i think tom and others who advocate on behalf of the detainees are frustrated understandably because that window is now gone and they don't see it coming in the future the way it was and they don't see any momentum to get those cleared to find homes of the political courage is just not there so i think that that is one of the major inflection points that causing the v.j. whether it's wrong it's simply wrong it has nothing to do with politics go ahead

b.j. . what two points one point is i think we need to clarify something thomas keeps asserting about these eighty six people the way the current legal system works every single detainee at guantanamo is entitled to a devious corpus review in front of the federal courts and any one of the federal courts as ordered released has been released by the government so these individuals that thomas keeps wanting described as innocent based upon the obama administration's review have had the opportunity to go in front of a federal judge and get an order requiring their release and failed to do so so suggesting that the court has concluded there is a legal basis to hold them so i think thomas overstates his case and then with respect to what charles is saying you know you don't find that so now because you. were finished i don't want to engage in or if you are you are you alone or your little level i think that i think let me finish please i don't want to get in this question as a political matter but i think it's going to be very difficult for any president whether it's obama or bush or republicans or democrats in congress to want to

expend political capital on a politically unfavorable call it is i have to do it justice what does that have to do is just you know what does that have to do with justice is half what does it have to do it just exactly thomas go ahead yes it's tough but you do it it's tough but you do what you do the right thing by the way i don't know whether you know it but i'm the guy who won the right behaviors corpus for those people and if you really know what it's a very thin review the most any evidence that the government has could. could justify their holding it under habe yes that's why the administration did a thorough detailed review for each individual to see whether they really posed a threat and it concluded they don't and they should be relieved sure it's tough it's politically talk it's also we're operating on the interstates where there is no law no public idea about it but it's got to be done again you're overstating as a good advocate would do you're overstating the case as a good advocate would do and i respect the position that you're in as an advocate

but i will just say that to suggest that what's going on is contrary to the law is actually not accurate the federal courts have reviewed all of these cases there me and we've. released and those people have been released. i didn't even say that i didn't say it's contrary to all this is a political issue it's a matter of policy it's a matter of doing just as the president and congress have cleared these people themselves they say we shouldn't be holding them that's what they say in the report then they've got to have the political gumption to do it i know it's not popular i know there are people like you who still say oh they're dangerous even though they've been cleared but sometimes you've got to do the right thing and not doing it hurts this nation every day every day guantanamo is opened it hurts the united states charles jump in that's a good point let me jump in and just say to point. and i work with b.j. like pj's and very talented attorney. i wasn't making the point that legal

logistical political and diplomatic things had to come together in the first two years of the obama administration to be a smack down of the administration i was saying that to tom's point and i think each of our points that there is a matter you have to desegregate or separate the legal issues from the political issues but at the end of the day it takes political will not capital p. democrat republican small people little will to order the closure of guantanamo and remember president bush said near that in the last two years administration he wanted to move to close guantanamo and obama picked up on and signed that executive order so my point is simply there in that window he had to spend political small peak capital to get it done and it did just didn't happen for a variety of other reasons because he spends political capital elsewhere but you know i reviewed every single detainees file kuantan of them every single one when i was in the pentagon running detainees policy and you know as

a former defense attorney and prosecutor i looked at those very carefully with the assistance of intelligence officials and i recommended people for transfer i recommend people for release and i recommend people for for continued attention and until you've had access to the entire file on each one of these detainees. can you make a educated recommendation in the obama strait and simply tweak the calculus somewhat to the right to take on a little more risk and that's why many of those eighty six have been cleared for release but veejays right the federal district court a federal judge has looked that in the hay vs process every file every detainees case that was willing to follow hevia scase and they make the decision we want you know you don't understand what's going on in the iris or not i don't understand what's going on are you are you disputing i mean first off no one has said that the intelligence for each of these people to be cleared the intelligence agencies

everyone on the joint task force had to vote off it had to be a unanimous recommendation on each of these people i have never heard and told this room that bombing ministration tweet to the right that's i mean that's not right nobody said that before the fact is you don't argue the facts again these people have been entirely correct i mean i don't know what any of you know on. what happened on it so don't you keep going the executives in herat going to have to decide how much risk to take on if you say there's an eight year old republican army that's going to have a bit of each day let's go to the actual risk that's going to take on let's go to nashville. i just want to say i think that you know part of it is that you know even within the administration there's been ships about the willingness to absorb risk i think during this detainee task force review the administration was as charles said willing to take a greater amount of risk than the bush administration was potentially but you know as soon as the first incident occurred of terrorism that was emanating from yemen

which was this underwear bombing incident the administration's willingness to absorb risks changed and so you know i think it's a systemic matter and again i'll say as a as a law professor this is the kind of thing we think about you know as a systemic matter you have to kind of understand that there is on the one hand the legal question which is does the government have the right to detain these people and that's what the federal courts are deciding and these people have been decided that they the government does have the right to detain them and the same question is even though we have the legal right to detain them as a policy matter we detain them and here the administration has changed its own mind from moment to moment and also congress has changed its mind from moment to moment and you know let me jump in here i want to get i don't want to be a straw man still the last word the research thomas go ahead. yeah ok i've got to say something is going on here and this is wrong what what charles and v.j. are saying is really playing into the whole republican thing well even though these

people have been clear the obama administration is taking more risk on them no one has said that it is true the obama administration has backed down on releasing even cleared people but the simple facts are these people had a thorough review which you did and in the bush administration you did it on an ad hoc basis cully you were looking at the files here it was a joy all right gentlemen we've run out of time fascinating conversation many thanks indeed my guests in washington and in nashville and next to our viewers for watching us here arky see you next time and remember cross talk rules. will.

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