NAPOLITANO: So, the Congress enacted a statute, the president signed it into law, that said if you're at Guantánamo Bay or anywhere that we capture you and you're an enemy combatant, you fought against our military, you get a military trial first. You can't get into a federal civilian court until after the military court rules.
That law -- Can the Congress take jurisdiction away from the federal courts? -- is what the Supreme Court will rule on in about two-and-a-half weeks. So, when the president said right before he went to Baghdad, “We've got to wait and see what the Supreme Court rules,” that's what he meant. We'll know by the Fourth of July.
GIBSON: All right, if -- what would have been the option? To just run them through military courts in the first place?
NAPOLITANO: Yes, because there is a provision in the Geneva Conventions that applies to non-nation combatants, people that don't belong to an organized army of a sovereign nation, which is what almost all these people are.
And that provision says try them immediately, make the trial basically fair, give them a lawyer, punish them, or acquit them, but get it over with. The administration's advisers told them they didn't have to follow that clause of the Geneva Convention, so the prisoners themselves began filing lawsuits.
GIBSON: But they had a reason for that. But they had a reason for that. And the reason for that was these were all intelligence sources. Had they put them in a judicial system, they would have lawyered up, not given any intelligence.
NAPOLITANO: The Geneva Convention permits them to do the same thing at the same time, to try them after they've interrogated them. At some point, they lose their intelligence value because the people back home changed their plans and their knowledge becomes stale. So the administration can make the judgment as to when to finish interrogating them and when to try them.
But because it got this advice it didn't have to try them, the prisoners themselves met American lawyers and began filing lawsuits. So the lawsuits in federal court in Washington are also Prisoner A versus George Bush, Prisoner B versus [Secretary of Defense] Donald Rumsfeld. It's not the United States against, because the United States has not commenced any action against these people yet.
GIBSON: So, in the future, your advice is shoot them on the field of battle?
NAPOLITANO: That is an option, or follow the Geneva Conventions. I'm glad you're back, John.
