Osama's Driver Takes Case to U.S. High Court

Osama bin Laden's former chauffeur, Salim Ahmed Hamdan, is challenging the authority of military tribunals for so-called "enemy combatants" captured in the Bush administration's pursuit of international terrorists. Lawyers for Hamdan are expected to argue before the U.S. Supreme Court that the tribunals are a violation of the constitutional right to due process. Madeleine Brand discusses the case's constitutional implications with Slate legal analyst Dahlia Lithwick.

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MADELEINE BRAND, host:

From the studios of NPR West, this is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick. Coming up, the full Senate takes up immigration legislation.

BRAND: But first, today the Supreme Court heard oral arguments in what could be a landmark case testing presidential powers. It is such an important case that the court released audio of today's proceedings. Here is Justice John Paul Stevens opening the session.

Justice JOHN PAUL STEVENS (Supreme Court): We'll hear argument in number 05184, Hamdan against Rumsfeld.

BRAND: Justice Stevens ran the proceedings because Chief Justice John Roberts recused himself. He ruled on it when he was an appeals court judge. The case Hamdan v. Rumsfield involves Salim Ahmed Hamdan, Osama bin Laden's former driver. Dahlia Lithwick is legal analyst for the online magazine Slate and for us here at DAY TO DAY, and she was there for the argument. She joins us now. Dahlia, first of all, what is Hamdan accused of?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate): He's accused of a very vague conspiracy charge. Conspiracy, sort of, to be involved in the general terrorism activities of Al-Qaida.

BRAND: And this case involves more than just the specific details of this case. It involves big Constitutional questions.

Ms. LITHWICK: That's right. I mean, the essential question is really whether these military tribunals that were established by President Bush after 9/11, tribunals that would try the Guantanamo detainees, not under the normal criminal law system, not under the courts martial system, but under an entirely different system of law, essentially invented out of whole cloth by the administration, whether those tribunals are Constitutional, whether they are permissible under the laws of war, under the Geneva Convention. It's sort of a Chex Mix of all sorts of different bodies of law that sort of come into play here. But the big question is one of presidential power in wartime.

BRAND: And what did Hamdan's lawyers argue today?

Ms. LITHWICK: Well, Hamdan's lawyer, Neal Katyal, essentially said, this kind of power that the president is arrogating to himself, the power to sort of invent these military commissions and then to sort of pick juries and judges and pick actual substance of law is just a vast expansion of presidential power, even in wartime. And he said, you know, the framers had this deep, deep distrust of trial by military commission. They wanted Congress to set up the rules, and in this case, he says Congress did not set up the rules. This is entirely crafted by the president and is doubly dangerous.

BRAND: And what did the government argue today?

Ms. LITHWICK: Well, the Solicitor General Paul Clement essentially said, A, the court doesn't need to decide this issue now. Let these tribunals run their courses and then let the guys who are convicted appeal later. But he also said, no, that these are historically protected presidential powers to create these military tribunals. He cited to both historic and statutory basis, sort of to say that this is not an expansion of presidential powers at all, it's sort of par of the course during wartime.

BRAND: And, tell us how the justices reacted to these two arguments.

Ms. LITHWICK: Well, it was very interesting, the four more liberal justices, John Paul Stevens, David Souter, Steven Breyer, Ruth Bader Ginsburg, were very, very clearly troubled by the presidential actions in this case. The only person who actually spoke, quite vigorously, on the side of the government was Antonin Scalia. Samuel Alito asked only two questions today, clearly signaling that he was more comfortable with the government's side of the case. But it was essentially Scalia and the Solicitor General against the world today.

BRAND: And, Dahlia, there is some question whether or not the Supreme Court actually has jurisdiction over this, because Congress passed this Detainee Treatment Act. Quickly, what does that mean?

Ms. LITHWICK: Well, there is some question, some very serious question before the court today about whether the courts even have the authority to hear these cases. And that was very, very vigorously debated this morning. Justice Souter very, very, very concerned that Congress stripped the courts of jurisdiction without much foresight or thought about what that would entail.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for us here at DAY TO DAY. Thank you again, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

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