BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield. The Bush Administration has described them as the worst of the worst, but until the Supreme Court ruled two years ago that the so-called enemy combatants being held in Guantanamo did have the constitutional right to habeas corpus, we had to take the government's word for it. Essentially the eight-century-old habeas doctrine safeguards against arbitrary detention by allowing prisoners to ask a judge to review the terms of their incarceration. And that's exactly what the Guantanamo detainees did, or rather what their civilian lawyers did as soon as they were able. Currently, there are dozens of habeas corpus petitions pending in U.S. courts.
BROOKE GLADSTONE: On Tuesday, the Justice Department moved to dismiss every last one of those cases. Why? Because they suddenly could, thanks to the Military Commissions Act of 2006, signed into law earlier that day by President Bush. The bill authorizes military tribunals to try high-value terrorism suspects and simultaneously eliminates the right of non-citizens in U.S. custody to petition for habeas corpus. Bad news for alleged enemy combatants. But Miami Herald reporter Carol Rosenberg, who's covered Guantanamo for almost five years, says it's also bad news for journalists.
CAROL ROSENBERG: What the habeas corpus lawsuits did is it allowed attorneys to go down there, sit across a table from one of these guys in orange jumpsuits that we all saw, and ask them what their side of the story was � ask them their name, ask them their age, ask them if they have kids. And it was through this process that we learned, one by one, who many of them are. Not all of them. There are still a number of people down there who've never seen attorneys for various reasons, but it wasn't until there were habeas corpus attorneys that we could really look inside the cages and understand who these people were � or who these people say they are.
BROOKE GLADSTONE: And if these cases are tossed out, then those lawyers won't be going down there any more.
CAROL ROSENBERG: The process of lawyers going down there has informed the reporting immensely. There's an attorney who has a client down there named Juman Dasari. He's tried to kill himself a dozen times. He's desperate. I'm not saying he's innocent or guilty. [LAUGHS] I have no idea � but he is desperate. And those are the kinds of human aspects of what go on down there that you cannot get as a journalist, meaning we go down for a tour, and the Pentagon presents what you see. But the first time I ever heard that interrogators down there were wrapping detainees in the Israeli flag in order to break their will was in a habeas corpus lawsuit. And when that claim was made, the Defense Department said it wasn't true. And it was only some months later when some FBI memos were declassified that we learned that the FBI saw the same thing as that prisoner alleged.
BROOKE GLADSTONE: Do these attorneys speak to you freely? Are there some constraints on what they can say?
CAROL ROSENBERG: There's a process that's been set up by the federal court in which their notes are taken away from them and they're only allowed to speak about those things that are deemed not to be classified. So if I'm on the base and I bump into an attorney who has been talking to a prisoner who has made, you know, a grotesque allegation against the prison, he can't tell me about it until his notes are declassified.
BROOKE GLADSTONE: So those detainees with lawyers, once they had those lawsuits filed, were you able to find out not just the detainees' story but also the government's case against them?
CAROL ROSENBERG: Largely, the government never made an argument. What the Pentagon has said is they're enemy combatants because we've declared them enemy combatants. Some of the information that has validated that they're enemy combatants is classified, and you, the civilian courts, don't have jurisdiction. There are some Uyghar Muslims down there, Chinese citizens, who the U.S. eventually decided really were not enemy combatants. They weren't interested in fighting the United States. They don't even dislike American democracy. They are anti-Communist Chinese citizens. And it was really only around the time that they filed a habeas corpus suit that the Americans decided really that maybe they shouldn't be at Guantanamo.
BROOKE GLADSTONE: So let's say, then, that the Justice Department is able to throw out all these pending habeas cases. What are the other sources of information that you can still rely on? I mean, you can still report on the tribunals that this new bill allows for, right?
CAROL ROSENBERG: Yeah, the military commissions, if they allow reporters to go down and cover these trials � we have yet to hear how they're going to organize that � will be the arena for the American government to accuse them of war crimes, and for them, with lawyers that are both civilian and military, to defend themselves. So those people who are charged, you know, the worst of the worst, or the people they think are the worst of the worst, they will get a trial. But they've said they're only going to charge about, at most, 75 of them, and there's about 450 people down there. The marginal people, the people they don't believe that they can charge with a crime and convict, they don't get trials. They don't get lawyers. They end up in this thing called indefinite detention without charge, which means that they get held indefinitely until somebody decides that it's safe enough for them to leave.
BROOKE GLADSTONE: So how do you find out about them? Leaks?
CAROL ROSENBERG: If the habeas attorneys can no longer speak to those people, how will I be able to report about them?
BROOKE GLADSTONE: Mm-hmm [AFFIRMATIVE].
CAROL ROSENBERG: If they write home [BROOKE LAUGHS] and their family back in Pakistan or Saudi Arabia have the wherewithal, and I am able to somehow talk to them about the letters, I might learn a little bit about them that way. I would say that [LAUGHS] without those attorneys, there really will be no one to speak for them.
BROOKE GLADSTONE: As you watch this tug-of-war over habeas corpus proceed, are you worried about the ability to continue to do your job, covering what's going on down in Guantanamo Bay?
CAROL ROSENBERG: I think the job will change. Remember, for the first two years, we didn't have that. I guess my attitude to covering Guantanamo is that this thing is controversial not because the media makes it so, but because America still hasn't decided its comfort zone with indefinite detention without judicial review. And it doesn't go away just because they managed to seal the files. I may be naive. It may be actually very clever of the administration to make them no longer human beings again and just make them accused terrorists in jumpsuits. But somehow I think, in a way, the genie's out of the bottle, and you can't turn it back to the days when they were all the worst of the worst, identically dressed, in shackles. I think that they are now individuals, and I'm sure some of them very bad individuals. But the process by which we, America, get to figure that out is still a little confusing. And until they get trials and review that's more transparent, we'll cover Guantanamo the best we can.
BROOKE GLADSTONE: Carol, thank you very much.
CAROL ROSENBERG: Thank you.
BROOKE GLADSTONE: Carol Rosenberg covers the Guantanamo Bay detention facility for The Miami Herald. [MUSIC UP AND UNDER]