In an interview with John Yoo, a Boalt Hall law professor and former Bush administration deputy assistant attorney general, National Public Radio host Steve Inskeep let Yoo get away with several false or misleading claims, failing to ask key follow-up questions regarding the recently passed Military Commissions Act of 2006. The bill, which passed Congress on September 28, authorizes military commissions to try terrorism suspects and purports to block all non-citizen “unlawful enemy combatants” from challenging their detention in federal civilian court through writs of habeas corpus. Yoo asserted that a U.S. citizen captured in the United States and detained as an “enemy combatant” would have the “right,” under this law, to challenge his or her detention in federal court; Inskeep did not point out that the Bush administration has taken a very different position, detaining Jose Padilla, a U.S. citizen, for three years without filing charges against him and continuing to maintain that the government has the authority to detain anyone -- anyone, citizen or not, on U.S. soil or not -- it designates an “enemy combatant” indefinitely. When Yoo claimed that, under the bill, a non-citizen could challenge his or her detention before a Combatant Status Review Tribunal (CSRT), Inskeep again simply dropped the ball.

During Inskeep's interview with Yoo, which took place on the October 4 broadcast of NPR's Morning Edition, Inskeep asked: “Say that you're the one who has been arrested by the U.S. government and you're declared an 'enemy combatant.' They feel you've given some money or committed an act somewhere. What recourse is open to you if you disagree with them?” Yoo responded: “If you're a citizen, I think you can go right to federal court. You have a right to seek habeas review.” As Media Matters for America has noted, the Bush administration has taken a very different position with respect to its authority to detain U.S. citizens.

Follow-up questions that Inskeep did not ask:

• Didn't President Bush detain Jose Padilla, a U.S. citizen, captured in the United States for three years without charges?

• Has any court said that detention was illegal?

• Indeed, didn't the 4th Circuit Court of Appeals rule in Bush's favor?

• Does the Military Commissions Act of 2006 prohibit what happened to Jose Padilla?

• What is to prevent President Bush from deciding that a U.S. citizen in the United States is a threat and detain that person indefinitely?

• Isn't that the position he has taken?

• Does the law change that in any way?

Inskeep then changed the subject to non-citizens, asking: “Now what if you're a non-citizen? What happens then? Same scenario -- the government has some suspicions about you; they think you've done something; they arrest you. They say you're an enemy combatant; you disagree. What can you do?” Yoo responded: “Well, first, according to the law passed by Congress last week, I'd have the right to go to what's called a Combatant Status Review Tribunal, which is set up by the Defense Department, where I'd have a hearing where I can challenge the evidence against me that I'm an enemy combatant.”

Inskeep could have asked Yoo:

• Isn't it true that while the bill gives people the right to a hearing before the CSRT, it doesn't say anything about when the government must conduct that hearing?

• So isn't it true that, according to the Bush administration, there is nothing in the law that would prevent the government from denying a detainee a review of his or her “unlawful enemy combatant” status indefinitely? Does the law impose any time limit by which the detainee must have his or her case heard?

• Given that it does not, what prevents the government from designating a non-citizen an enemy combatant for any reason, locking him or her up, and simply never conducting his or her CSRT hearing?

In addition, Yoo made several other misleading claims, all of which went unchallenged by Inskeep, as part of his attempt to equate the “enemy combatant” process with the civilian court system:

• Yoo falsely equated the denial of bail in a civilian trial to an enemy combatant's being detained “during the course of [his or her] challenge.” However, in a federal civilian trial, an un-indicted defendant, who the government contends committed a felony, is entitled to a preliminary hearing in which a federal magistrate judge must find that there is “probable cause to believe an offense has been committed and [that] the defendant committed it” in order to continue the legal proceedings against the defendant.

• Yoo falsely equated the ability of the government to use classified evidence at a CSRT without showing it to the defendant with the procedure in “civilian trials ... for terrorism or spying.” He stated that “classified evidence is not provided to the defendant” in many of these civilian cases. However, this comparison is flawed. In a federal civilian criminal trial, the defendant has a right to see all the evidence the jury uses to reach its decision. Classified information is no exception, and the Classified Information Procedures Act sets out the process by which the government can introduce, and the defendant obtain, classified information for use at a trial. The government's refusal to produce classified evidence to the defense that a judge has ruled is required leads to a dismissal of all or part of the indictment, exclusion of evidence, or the government's inability to argue against a defendant's motion if the government's argument would require the use of undisclosed classified material.

From the October 4 broadcast of National Public Radio's Morning Edition:

INSKEEP: President Bush is preparing to sign new legislation on treatment of detainees at Guantánamo, and even with all the news about this legislation, it can be hard to understand just how the U.S. will be treating detainees.

I want to make sure I understand a distinction here, and perhaps we've been confused in how we interpret the law, or how we've been reporting the law, even over the last few days --

YOO: Also, there've been a lot of changes in the law just in the last few minutes.

INSKEEP: John Yoo says Congress made alterations to the bill almost until it was passed last week. Yoo is a former Bush administration lawyer who wrote influential memos on detainees. And now, he has written a new book about his experiences. So, we asked him to explain how one controversial part of the new rules would work. It is the decision to limit the right of habeas corpus -- that means limiting some detainees' rights to go to challenge their detentions in court.

Well, Mr. Yoo, let's start with a hypothetical if we can. Say that you're the one who has been arrested by the U.S. government, and you're declared an “enemy combatant.” They feel you've given some money or committed an act somewhere. What recourse is open to you if you disagree with them?

YOO: If you're a citizen, I think you can go right to federal court. You have a right to seek habeas review.

INSKEEP: And you're a citizen, of course.

YOO: If you're a citizen, yes.

INSKEEP: So, you can, if you're able to get word out to someone, you could get a lawyer --

YOO: Yes.

INSKEEP: If the government grabs you and calls you, John Yoo, an enemy combatant, and you try to challenge it in federal court, and that challenge takes several months or years, can the government hold you that entire time?

YOO: Yes, they can, just in the way that if you're prosecuted for a criminal case --

INSKEEP: Although, if you're being prosecuted, you might have a chance to post bail. Can you post bail?

YOO: Right, you might have a chance to post bail, but the courts could often deny it, and they often do if you're dangerous, or you're a flight risk.

INSKEEP: Can you post bail if you're an enemy combatant, according to the government, and you're challenging it --

YOO: No, you can't.

[crosstalk]

INSKEEP: So, they can hold you for a while.

YOO: Yeah, they would hold you during the course of your challenge.

INSKEEP: Now, you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

YOO: No, and that's something that the court made -- Supreme Court made clear two years ago, is that, if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

INSKEEP: Now, what if you're a non-citizen? What happens then? Same scenario -- the government has some suspicions about you; they think you've done something; they arrest you. They say you're an enemy combatant; you disagree. What can you do?

YOO: Well, first, according to the law passed by Congress last week, I'd have the right to go to what's called a Combatant Status Review Tribunal, which is set up by the Defense Department, where I'd have a hearing where I can challenge the evidence against me that I'm an enemy combatant. And then --

INSKEEP: Wait. Let me stop you for a second. When you go to that hearing, do you get a lawyer?

YOO: I believe you don't get a lawyer; you get representation from an officer, but necessarily one who's a military lawyer.

INSKEEP: And when you say you can challenge your detention, how would you gather evidence to show that you're not an enemy combatant?

YOO: Well, first, you could tell your own story, and also, I think you would have the ability to see unclassified evidence against you and to challenge it.

INSKEEP: You said “unclassified evidence.” So, classified evidence that the government says, “We have evidence against you and we can't share it with you,” that's the end of the story?

YOO: I believe so. I believe that classified evidence is not provided to the defendant. It's not even provided under the military commissions or often in civilian trials even, for terrorism or spying.

INSKEEP: Now, these Combatant Status Review Tribunals, they've been held for quite some time. In fact, some transcripts of some of these tribunals have been released. And honestly, they seem rather perfunctory. A military officer gets up and says, “We think this guy's a terrorist, we arrested him in Afghanistan.” The guy is allowed to stand up and try to say something. The military officers, who are never named, make their decision, and the guy is sent back to his cell.

YOO: Well, it's not a criminal trial. You know, this is part of the way the rules of war have worked for, you know, a long time. The military proceedings to determine if you're an enemy combatant usually don't require as much proof. You know, the point of the war is not collect evidence and solve crimes, it's to fight and defeat the enemy. So, I think this sort of flexible process reflects the demands and the nature of warfare.

INSKEEP: So the government says you're an enemy combatant; you disagree, you're a non-citizen. You've gone through one of these Combatant Status Review Tribunals. Odds are that you lost there. One thing you can do is get a lawyer on the outside, or your family can try and get a lawyer on the outside and fight your case through the federal court in Washington. While that appeals process goes on, you remain at Guantánamo Bay. What else can happen legally?

YOO: That's about it. And that's a big change that was actually created by the bill that Congress passed last month. Before the bill, there were hundreds of habeas corpus petitions in the federal court system by people held at Guantánamo Bay challenging their detention, challenging the conditions of the detention, the nature of the camp, and everything. And at the end of 2005, Congress tried to remove those cases from the federal court and only partially succeeded. And then, in this law again last week, Congress, I think clearly and more definitively said, we're not going to let any more of these kinds of suits go forward.

INSKEEP: If you're an enemy combatant, who decides if you ever get a full-blown trial, a military commission trial, as it's been called?

YOO: That's ultimately up to the president. I think it's still up to the president and the secretary of defense who's going to be tried by military commission.

INSKEEP: The government will decide that when it's in the government's best interest, a trial will be held. And when it's not, the person will be held without a trial.

YOO: That's right.

INSKEEP: Do you think it's inevitable that some people who are innocent are going to end up, in this system, spending years and years at Guantánamo Bay?

YOO: There's no perfect system. I agree, Steve, there's always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There's no doubt that we have people in the criminal justice system who are innocent; that's why we have all these processes, that's why we have all these appeals levels, is to try to correct any mistakes that were made and prevent errors.

INSKEEP: You said there's always the chance. I mean, isn't it a certainty, especially given that some cases have already been found to be, almost indisputably, cases of people who are innocent being held at Guantánamo for a long time, or held elsewhere?

YOO: Yeah, look, I would say, in wartime, there's always going to be people who might be picked up. It's also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

INSKEEP: Do you, as a lawyer who's worked for the Bush administration and obviously thought a lot about these issues, think this law does everything possible to prevent error?

YOO: I think we could probably do a lot more, but it'd be a lot more expensive. I think what we have here is something that's very close to the civilian system.

INSKEEP: Are you saying it'd be too expensive to give habeas corpus protection to non-citizens?

YOO: Yeah, I think that's what Congress decided when it passed this law last week, is that you could have the possibility of hundreds and hundreds of habeas corpus proceedings. And they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about it: you'd have to pull witnesses in from abroad, you'd have the cost of potentially releasing classified information. All this process does have a cost on our system. It's not free.

INSKEEP: John Yoo is author of War by Other Means, which is out this week. Mr. Yoo, thanks very much.

YOO: Thanks, Steve, for having me.