Salim Ahmed Hamdan, seen here in an undated photo handed out by his defense lawyers, is at the center of a case that could test the limits of presidential powers during wartime.
The U.S. Supreme Court heard arguments Tuesday in a case testing the validity of the military tribunals set up to try accused terrorists now being held at the naval base at Guantanamo Bay, Cuba.
Because of the importance of the Hamdan case, the Supreme Court allowed audio of the proceedings to be released on a same-day basis. Hear excerpts from Tuesday's oral arguments before the court:
Justice Samuel Alito asks defense lawyer Katyal why the Supreme Court should review Hamdan's case before the tribunal rules, and Katyal replies.
Katyal says that Hamdan has already been denied some basic rights afforded under the Uniform Code of Military Justice. Justice Ruth Bader Ginsburg pursues the matter.
Katyal argues that one of the charges against his client, conspiracy, is not a charge permitted under the laws of war because it is too vague.
Solicitor General Paul Clement argues that the president's right to try enemy combatants by military tribunal has long been established.
Clement argues that the Geneva Conventions governing the laws of war are unenforceable in the courts. Justice David Souter questions this argument.
Justice Stephen Breyer asks Clement how the court can accept the Bush administration's arguments in the Hamdan case -- without ruling on whether Congress has the right to strip the court of jurisdiction.
Justice Breyer lays out the three major points made by Hamdan's lawyers and asks Solicitor General Clement to address them.
The case involves Osama bin Laden's one-time driver, a Yemeni citizen named Salim Ahmed Hamdan. The U.S. government says Hamdan was a confidant and bodyguard of bin Laden and helped transfer weapons from the Taliban to al-Qaida. Hamdan claims he was just a chauffeur. He says he was trying to return home in 2001 when he was captured by the Northern Alliance in Afghanistan and turned over to the U.S. military for bounty.
At issue is whether the president has the power, on his own, to set up military tribunals to try Hamdan and others on war crimes charges, or whether the other two branches of government, the Congress and the courts, have a role to play.
Attorney Neal Katyal, who represents Hamdan, told justices Tuesday that the military commissions established by the Pentagon on President Bush's orders are flawed because they violate basic military-justice protections. "This is a military commission that is literally unburdened by the laws, Constitution and treaties of the United States," Katyal said.
Several justices seemed deeply concerned that the government had gone too far in its plans to hold a special trial for Hamdan. Some were downright indignant over the Bush administration's claim that a new federal law bars the high court from ruling in the Hamdan case.
Chief Justice John Roberts, a conservative appointed to the court last year by President Bush, recused himself from Tuesday's arguments because he had voted in the case while serving on a lower court. Justices Antonin Scalia and Samuel Alito, the newest justice, hinted at their support for the administration's position. Alito pressed Katyal to explain why a defendant before a military commission should be given something that defendants in civilian criminal trials normally don't get — the chance to challenge the case before a verdict is reached.
"If this were like a [civilian] criminal proceeding, we wouldn't be here," Katyal said. " The whole point of this is to say we're challenging the lawfulness of the tribunal itself."
Alito suggested Hamdan should wait until his trial is over before questioning whether charging him with conspiracy violates the laws of war, as his lawyer contends. But Katyal brushed aside the contention. ''The government has had four years to get their charges together on Mr. Hamdan,'' he said.
Justice Anthony M. Kennedy questioned Solicitor General Paul Clement about the legal safeguards for the trials. Justice Stephen Breyer also asked what would stop the president from holding the same type of trial in Toledo, Ohio, not just at the military prison in Guantanamo Bay, Cuba.
Defining the Rules of Military Justice
The core issue before the court is whether the president as commander in chief has the unilateral power to set up military tribunals. 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 force authorization passed by Congress in the days after the Sept. 11 terrorist attacks.
Hamdan's lawyers counter that the force authorization makes no mention of military tribunals. They concede that military action of necessity allows the detention of prisoners seized on the battlefield. But they argue that the force authorization does not allow for trials outside the rules set down by the Uniform Code of Military Justice. That code provides guidelines for battlefield trials and includes specific rights for the accused, such as the right to legal representation, the right to be present and to have the evidence tested by a lawyer.
The Uniform Code of Military Justice's regulations strictly separate the judges and jurors in military trials from the command structure, and they allow a review by an independent court review. In contrast, say Hamdan's lawyers, the Bush military tribunals provide none of that. Defense attorney Katyal says the trial that Hamdan faces at Guantanamo has been a "constant moving target."
"The rules change all the time," Katyal told NPR. "They changed even after the Supreme Court was asked to hear the case."
For example, although the rules of the Guantanamo tribunals originally guaranteed that the defendant could be present at his trial, they changed midstream, 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.
Among Hamdan's other complaints is the fact that the evidence to be presented at his trial could be in the form of unsworn written statements that could not be tested with cross-examination, and that, if he is convicted, the verdict and sentence would be reviewed by the president, not an independent court.
Repercussions of Case Unclear
Hamdan is among about 490 foreigners being held as "enemy combatants" at the military prison in Guantanamo Bay. Ten of the men, including Hamdan, have been charged with crimes.
Justices ruled two years ago that the government could detain enemy combatants but not shut off their access to U.S. courts. In this follow-up case, justices are considering the government's plans for trials before a panel of military officers.
Hamdan's trial was halted last fall when a federal judge ruled that he could not be tried by a U.S. military commission unless a "competent tribunal" determined first that he was not a prisoner of war under the 1949 Geneva Convention.
Roberts was on a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that said the trial could resume, and Hamdan's attorneys appealed to the Supreme Court.
The Supreme Court's decision in the Hamdan case could be one of the most important on presidential war powers since World War II. Or the court could dodge a major ruling on grounds that a law passed last December stripped the justices' authority to consider the case. That law, the Detainee Treatment Act, stripped the courts of jurisdiction over at least some pending cases involving detainees, making the Supreme Court's jurisdiction a key question in the Hamdan case.
The federal government argues that the Supreme Court does not have jurisdiction because the law took all pending cases at Guantanamo out of the courts' 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 challenge the very structure of the tribunals at Guantanamo. Further, defense lawyers contend that if the law does in fact strip jurisdiction from the Supreme Court, then it would be unconstitutional.
Compiled from NPR staff reports. The Associated Press contributed to this report.