High Court Hears Challenge to Military Tribunals

The U.S. Supreme Court hears arguments in a case that challenges President Bush's power to set up military tribunals for suspected terrorists. The case centers on Osama bin Laden's former driver, who says he is an innocent father who worked for bin Laden only to make a living. The Bush administration says he is a trained terrorist who should be tried before a special tribunal.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

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And I'm Steve Inskeep.

Today the U.S. Supreme Court hears arguments over military tribunals. It's a case testing the process to try detainees at the Naval Base at Guantanamo Bay, Cuba.

This case will also test the role of the courts and of Congress, and the limits of Presidential power in wartime.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

At the center of today's case is Osama bin Laden's one-time driver, a Yemeni citizen named Salim Ahmed Hamdan, who was captured in Afghanistan in 2001 and turned over to the U.S. military.

The question in this case is whether the President has the power, on his own, to set up military tribunals to try Hamdan and others on war crimes charges, whether the President may appoint the judges and jurors for the trial, set the procedures, and review the verdict, or whether the other two branches of government, the Congress and the courts, have a role to play.

The Supreme Court's decision in the case could be one of the most important on presidential war powers since World War II, or it could be a fizzle. The sizzle could come about because, when the Hamdan case was originally pending before the Supreme Court last year, Congress passed a statute that stripped the courts of jurisdiction over at least some pending cases. So the threshold question is whether the court has any business ruling on this case at all.

The federal government says it does not, because all pending cases at Guantanamo were taken out of the court's hands. But lawyers for Hamdan contend that the law was prospective, and was never intended to cover the Hamdan case and others in the pipeline that test the very structure of the proceedings at Guantanamo. Further, they contend that if the law does in fact strip jurisdiction from the Supreme Court, then it would be unconstitutional.

The core issue is whether the president, as Commander in Chief, has the unilateral power to set up military tribunals.

Andrew McBride is a former Federal Prosecutor who's filed a brief on behalf of three former Attorney's General in the Bush and Reagan Administrations.

Mr. ANDREW MCBRIDE (former Federal Prosecutor): The Commander in Chief does carry with it the authority to repel invasion or attack, and use certain means to do so: one of which could be the use of military tribunals.

TOTENBERG: The Bush Administration contends that in addition to its inherent constitutional authority to try accused war criminals by military commission, it also has that power under the authorization for the use of military force passed by Congress right after 9-11.

But Hamdan's lawyers counter that that authorization makes no mention of military tribunals. Yes, they concede, military action of necessity allows the detention of prisoners seized on the battlefield, but it does not authorize trials outside the rules set down by the Uniform Code of Military Justice.

That Code sets up specific rules for trials even on the battlefield--rules that include legal representation for the accused, his right to be present and to have the evidence tested by his lawyers, rules for the handling of classified information, rules that strictly separate the judges and jurors from the command structure, and rules that provide for independent court review, both by the Court of Appeals for the Armed Forces and by the U.S. Supreme Court.

In contrast, say Hamdan's lawyers, the Bush military tribunals provide for none of that.

Georgetown law professor Neal Katyal represents Hamdan.

Mr. NEAL KATYAL (Lead attorney for Salim Ahmed Hamdan): The criminal trial Hamdan faces at Guantanamo is a constant moving target. The rules change all the time. They've changed even after the Supreme Court was asked to hear the case.

TOTENBERG: Thus, for example, although the rules originally guaranteed that the defendant could be present at his trial, they changed mid-stream, and Hamdan was excluded from the jury selection process. Last July the president authorized evidence obtained through torture. But on the eve of the Supreme Court argument, he revoked that rule.

On another front, in an extraordinary development military prosecutors at one point joined defense lawyers in objecting to the colonel appointed as the presiding judge, because they said he was too subject to influence by the chain of command. The judge, however, was not removed.

Among Hamdan's other complaints was that the evidence to be presented at his trial could be in the form of unsworn written statements that could not be tested by cross examination. And if he is convicted, it is the President, not an independent court, that reviews the verdict and sentence up to and including the death penalty.

Again, Neal Katyal.

Mr. KATYAL: The problem with President Bush's order on military commissions is that it makes him judge, jury, executioner; the person who defines what the offenses are; the person who defines what the procedures are; and then it goes so far as to say the Federal Courts have virtually no role in overseeing this entire trial process. That conflation of all government powers in one man is something that our founders rebelled against. It was one of their complaints about King George III.

TOTENBERG: Andrew McBride counters that argument this way.

Mr. ANDREW MCBRIDE: A military tribunal, by its nature, is a tool of war and it has to be up to the president how much process to give. Let's face it, prior to the institution of military tribunals in the late 18th century, spies and people who fought out of uniform were simply shot. So I think the military tribunal is an evolution of war practice and the form of that trial can vary depending military circumstances.

TOTENBERG: A huge contingent of people and organizations disagree, however, including retired top military brass, State Department officials and diplomats who have served in Democratic and Republican administrations. They have filed 36 briefs in this case asserting that the Bush administration has departed starkly from the requirements agreed to by the United States in the Geneva Conventions after World War II.

Yale Law School Dean Harold Koh, who wrote the Diplomat's Brief says that even an accused terrorist has certain basic rights to a fair trial under the Geneva Conventions. He knows that the U.S. protests when other countries like China and North Korea conduct trials with judges who are not independent and where the defendant has only token rights.

Mr. HAROLD KOH (Dean, Yale Law School): So for us to precede and to try people under these standards would subject us to a charge that we're engaged in some of kangaroo justice.

TOTENBERG: The Bush administration however contends that the Geneva Conventions are not enforceable in the courts. That if one country believes another is violating the treaty, the matter is to be resolved diplomatically. Neither al- Qaida nor the Taliban however is a nation or a signatory to the Geneva Conventions.

Dan Collins who served previously as Deputy Associate Attorney General in the Bush administration concedes that may leave them without a way to enforce the Geneva treaty.

Mr. DAN COLLINS (Former Deputy Associate Attorney General): It would discourage combatants from complying with the laws of war if they could claim its protections without having to obey its obligation.

TOTENBERG: But Hamdan's lawyers counter that it is the Bush administration that's trying to have it both ways, using the laws of war as the basis for trying Hamdan and then saying that the treaty that governs the laws of war, the Geneva Conventions does not apply.

The Bush administration points to Supreme Court decisions during and right after World War II that upheld military tribunals like these. But the administration's opponents point to changes in the laws of war under the Geneva Conventions since World War II, and they contend that because of those changes, the U.S. did not use military tribunals in the half century that followed, not even against guerilla fighters of the Vietcong. That changed, however, with 9/11. That's why this case could be such a landmark.

Critics of the Bush military tribunal system see it as an outlier and outlaw, a betrayal of the American coin of the realm, it's reputation for fairness and the rule of law.

Those defending the system see it as perfectly fair within the context of the new post 9/11 reality. Now, the issue is in the hands of the Supreme Court, but only eight justices will hear today's argument. Chief Justice John Roberts will not participate because as the lower court judge he served on the panel that upheld the tribunal.

Nina Totenberg, NPR News, Washington.

MONTAGNE: And while holding the line on presidential powers, the White House has made a big change today: Andy Card has resigned as chief of staff. President Bush made the announcement this morning from the oval office.

President GEORGE W. BUSH: On most days, Andy is the first one to arrive in the west wing, and among the last to leave. And during those long days over many years, I've come to know Andy as more than my chief of staff. He is leaving the White House but he will always be my friend. Laura and I have known Andy and his wife Cathy for more than 20 years, and our close friendship will continue.

MONTAGNE: President Bush said Josh Bolten will replace Andy Card. Bolten has been leading the White House Budget Office for the past three years.

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