Guantanamo Tribunals and the Constitution

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What constitutional issues are involved in holding military tribunals at Guantanamo? John Hutson is dean of the Franklin Pierce Law School in Concord, N.H. The retired admiral offers his insights to Steve Inskeep.

STEVE INSKEEP, host:

Military trials for detainees, are supposed to answer a question that has been uncertain for years. The question is, what happens to the Guantanamo detainees as the years go on.

As soon as this month, the Supreme Court is supposed to decide on the constitutionality of military trials for the detainees. At the center of that case, is Salem Ahmed Hamdan, a Yemeni citizen and one-time driver of Osama bin Laden, we're told. The case challenges the extent of presidential powers and also raises questions about the role of Congress, and the courts, in wartime.

To learn more, we've called retired Admiral John Hudson, who was a Judge Advocate General for the Navy. Admiral, good morning.

Admiral JOHN HUDSON (United States Navy, Judge Advocate General; retired): Good morning. How are you Steve?

INSKEEP: Let's remind ourselves of what the case is about, here. What exactly are Hamdan's lawyers arguing before the Supreme Court?

Admiral HUDSON: Well, this is a great case for a lawyer. There are all kinds of issues going on here, starting out with the jurisdiction of the Supreme Court to hear the case in the first place, in light of the so-called Graham Amendment. The Detainee Treatment Act, which arguably strips the Supreme Court of jurisdiction to hear cases of any of the detainees.

Then, once you get past that, the arguments go to, not a decision from a court, which is typically what you hear, but to the very existence of the court, the commissions themselves. Are the commissions legal? Are they constitutional? Have they been implemented properly?

INSKEEP: Hamdan's lawyers, I assume, say that they have not been?

Admiral HUDSON: That's exactly right. They argue that there are separations of powers issues, involved here. In other words, that the president has created the court; he identifies the prosecutors; he identifies the charges; he identifies the people that are going to make the decisions, the jury so to speak; and that it's out of step with, the argument goes - it's out of step with international and domestic due process.

And strips Hamdan of his rights, the argument goes, under the Geneva Conventions, under (unintelligible).

INSKEEP: What's the Bush administration's response?

Admiral HUDSON: I'm sorry?

INSKEEP: What's the Bush administration's response?

Admiral HUDSON: No to all of those, essentially. That Congress has authorized it, the Bush administration argues, both by its authority to use military force in wake of 9/11, and through the Uniform Code of Military Justice, arguably Congress has authorized these commissions.

And, you know, the United States has used commissions since the Revolutionary War. So they're not - this is not something particularly new or unheard of. It's a tried and true way of dealing with enemies.

INSKEEP: Now, Admiral, how significant could this case be? Does it just affect this man or could it be much, much larger?

Admiral HUDSON: Well, the court could come up with an opinion that would be much, much larger, and would enable the commissions to go forward for all the detainees at Guantanamo. So that, you know, it has the capability of doing that. Or, on the other hand, it has the capability of saying, Hamdan, you're right. These are unconstitutional and therefore, the administration will have to figure out another way to deal with the detainees at Guantanamo.

INSKEEP: Which might be challenging?

Admiral HUDSON: Which, well, we've seen already that that has been a great challenge. And, so this case, particularly in light of the suicides, takes on an awful lot of importance. And I think that it puts a lot of pressure on the court not to dodge the issues.

INSKEEP: Admiral, thanks very much.

Admiral HUDSON: That's quite all right. Glad to talk to you, Steve. Thank you.

INSKEEP: Retired Admiral John Hudson is Dean of the Franklin Pierce Law School in Concord, New Hampshire and was a Judge Advocate General for the U.S. Navy.

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