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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

This week the Supreme Court decided to accept a case that goes directly to the issue of presidential power in time of war--in particular, the president's authority to try terror suspects before military tribunals at Guantanamo Bay, Cuba. Salim Ahmed Hamdan acknowledges that he used to be Osama bin Laden's driver, but he maintains that he is not a member of al-Qaeda, not guilty of murder and conspiracy, and he says the military commission established to try him violates the US Constitution and international law.

Two months after the September the 11th terrorist attacks, President Bush issued a military order declaring that suspected terrorists would face trial before military tribunals or commissions. The administration argued that the elusive nature of international terrorism made it impracticable to apply regular judicial processes of US civilian courts to foreign terrorists. And it was not the first time a president has resorted to extraordinary procedures. Franklin Roosevelt ordered military tribunals to try German saboteurs in this country, and Abraham Lincoln used military tribunals to try suspected supporters of the Confederacy.

We'll talk about how military tribunals were used in the past, as well as the issues involved in the Hamdan case. Later, Hollywood's Uncle Tom: a biography of the first African-American movie star, Stepin Fetchit.

But first, military tribunals, and we want to hear from you. Should suspected terrorists be treated differently in the legal system than other suspected criminals? Give us a call. Our number here in Washington is (800) 989-8255; that's (800) 989-TALK. The e-mail address is totn@npr.org.

We begin with Scott Silliman, a professor at Duke University Law School, where he specializes in military law and national security. He's a former military prosecutor. He retired in 1993 after 25 years in the Air Force. Professor Silliman joins us from the studios at the Duke University News Service in Durham, North Carolina.

And it's good to have you on the program, sir.

Professor SCOTT SILLIMAN (Duke University Law School): Thanks, Neal. It's a pleasure to be with you.

CONAN: When President Bush signed that military order in November 2001 that created military tribunals, he was following in the footsteps of other wartime presidents, particularly FDR. And the case in World War II is one consistently cited by the administration.

Prof. SILLIMAN: It is, Neal. It's the case of the German saboteurs called the Kieran case. President Roosevelt had issued an executive order that authorized a military commission to try the eight of them. Six of them were actually hanged as a result of it. And the Supreme Court's opinion in that case has really been the foundation upon which the president--President Bush--now is arguing that he has the authority to bring those at Guantanamo Bay before a military commission.

CONAN: And the case in the court, what issues did it revolve around?

Prof. SILLIMAN: Well, it primarily looked at whether the president had the authority to do it, Neal, and the court back in 1942 said that Congress, because it had specified in Article 15 of the Articles of War that military commissions had jurisdiction over violations and law of war, that that was a sufficient congressional grant of authority for President Roosevelt to go ahead and convene the commissions that he did. There is also an argument, Neal, that the president of the United States, even without a specific grant of authority from Congress, has power under Article 2, his commander-in-chief power, to convene these as long as Congress does not contest him. And that came in a later case by the Supreme Court in 1952.

So the Hamdan case, where the Supreme Court has now agreed to review it, will give us the final answer on exactly where the authority comes from for the president to do it, whether it's got to come from Congress, whether the president can do it himself. This is an unsettled issue.

CONAN: Do we need to concern ourselves with the much earlier uses of military tribunals by Presidents Lincoln and Washington, for that matter?

Prof. SILLIMAN: Well, there's a rich history of the use of military commissions, Neal, going all the way back to the Revolutionary War. Major John Andre, the adjutant general for the British army in 1780, crossed the battle lines to meet with Benedict Arnold, disguised as a civilian. He was prosecuted by a military commission. As you mentioned, the Civil War--a famous case called Milligan--that was a slightly different type of military commission, Neal. That came out of the environment of martial law, and the Supreme Court said that you couldn't try an American citizen by a military commission unless the courts were not open and functioning.

What we're dealing with here is a different type of military commission. It's called a war court, and it derives from the authority of a military commander to prosecute those of the enemy, and those of his own troops, for violations of the law of war. That's the only jurisdiction of these types of military commissions.

CONAN: And how else do they differ from regular, well, civilian trials or criminal trials or even courts-martial?

Prof. SILLIMAN: Well, I think the major difference, Neal, obviously is in a military court-martial, which is what we use for the trial of our own servicemen, there is a series of judicial reviews up to an Article 1 court, a court convened by Congress of judges appointed by the president, and ultimately to the United States Supreme Court. Under the president's military order, there is no judicial review. Any commission coming out of Guantanamo Bay will be reviewed by a four-civilian-member review panel, and then ultimately sent to Secretary Rumsfeld at the Department of Defense. There is no judicial review, and that's one of the major points of contention.

CONAN: There is also the question of: What would happen if someone were found not guilty?

Prof. SILLIMAN: Well, obviously, if a military commission held that someone was not guilty of a violation of law of war, they could not be punished or sentenced to a punitive prison term. Or even that...

CONAN: But they might not get out of Guantanamo.

Prof. SILLIMAN: You're exactly correct, because the argument that the administration is making is that, apart from the authority to prosecute someone, that we have the authority to detain folks at Guantanamo Bay for as long as the war on terrorism exists. And, of course, it could go on forever. That is the subject of some cases right now pending in the District of Columbia Circuit on what is the authority to detain and what challenges can these detainees make in our federal courts?

CONAN: And we might expect that those cases, in some form or another--one of them is going to make its way up to the Supreme Court, probably before too long.

Prof. SILLIMAN: I think you're exactly correct, Neal. One of the most significant aspects of the Supreme Court's grant on Monday morning of the Hamdan case is that when you look at it in the context of the Supreme Court acting in June of 2004, where it opened up the federal courts to these folks at Guantanamo Bay, that--I think this is the Supreme Court saying, `We have got to somehow define what this war on terrorism is. Is it more like traditional, World War II armed conflict, or is it more towards a rhetorical--"war on drugs"?' We don't have an answer to that. I think the court needs to give us that answer. And further, however you define this war on terrorism, what is the proper role for the courts in judicial review of the president's decision when he's acting as commander in chief in a war? That's a very important question, and we're looking to the court to give us that answer, as well.

CONAN: Well, joining us now is Neal Katyal. He's lead counsel for Salim Hamdan, the suspected al-Qaeda terrorist whose case the Supreme Court will be hearing next year.

Thanks very much for being with us today.

Mr. NEAL KATYAL (Lead Attorney for Salim Hamdan): Thank you very much.

CONAN: And what--could you summarize--I don't want you to give everything away, but what are your arguments going to be, broadly, in this case?

Mr. KATYAL: Well, the arguments have been thus far--and I don't want to--I'll let the briefs speak for themselves once we've filed them with the Supreme Court. But the arguments we've made thus far are fairly simple: that the president, in setting up these military tribunals at Guantanamo Bay, has acted as a lawmaker, the architect of the tribunals, the person who authorizes them, the person who defines all of the offenses, the person who picks the prosecutor, picks the defense counsel, picks the judges, picks the appellate panel and then, afterwards, says, `Oh, by the way, federal courts, you have no role here. You have to defer to our interpretation of the laws and our treatment of the individual.'

And there are many things that can be said for this, but I think the most fundamental is this is just un-American. This isn't what the founders envisioned when they divided government into three branches.

CONAN: A legal tautology combined within the executive branch.

Mr. KATYAL: That's exactly right. There's no real outside review whatsoever. For example, in a standard military trial, you have a review by the Court of Appeals for Armed Forces. These are men and women judges that are nominated by the president and confirmed by the Senate to 15-year terms. Here, Secretary Rumsfeld has picked four individuals, many of whom have already gone on record saying military trials at Guantanamo are constitutional and fair, and the Senate hasn't confirmed that. This is all an entity set up and operated by the executive branch, with no other oversight.

CONAN: And your client has now been in--at Guantanamo Bay for--it's getting close to four years, isn't it?

Mr. KATYAL: That's exactly right. The--he's been there for almost four years now. And I did want to correct one thing you said. I don't think he's suspected of being a terrorist; he is suspected of being Osama bin Laden's civilian driver, along with five others, but it's not at all clear that he's done anything more than that.

CONAN: I think that's what I said, but I'll take your correction to heart. If there are--the government says in the case of people who are dangerous--and, of course, your client says he is not one of this dangerous people, but perhaps there are others there at Guantanamo Bay who are--these procedures have to be set up and done this way basically to protect people, that there's no other way to do this.

Mr. KATYAL: Right. And we're now four years after President Bush authorized these things, these trials at Guantanamo. Not a single trial has begun.

CONAN: Isn't one scheduled to start next week?

Mr. KATYAL: A pretrial motion is scheduled to start next week. I'm unaware of any other justice system, military or civilian, in which it takes four years to have a simple trial. And the idea that we need these systems when we already have a vibrant court-martial system, a military system, is just fanciful. And the administration has never explained why courts-martial, which work day in and day out to protect classified information and treat both sides fairly, isn't appropriate.

CONAN: Well, I think one of their arguments would be that this is an enemy combatant and not a member of a recognized foreign military. Even as Osama bin Laden's civilian driver, he didn't wear a uniform, wasn't a member of any military organization.

Mr. KATYAL: That is their argument. That doesn't explain why a court-martial, which after all is set up for precisely that set of offenses--Congress in 1916 said violations of the laws of war, people who are unlawful combatants, can be tried by courts-martial--why that isn't appropriate.

CONAN: Let me--we just have a few seconds left with you, but I do want to ask this question in an e-mail from Fred Mellender(ph) in Rochester, New York: `Is the presumption of innocence applicable for suspected terrorists?'

Mr. KATYAL: There is a Department of Defense directive that says that defendants are presumed innocent, but the very last line of that order says that that order creates no rights and nothing that is enforceable in any court of law, foreign or domestic. So it's not at all clear that he has any presumptions of innocence, rights or anything else. And that is what's so fundamentally problematic. And if we want to have this system of military commissions, it seems to me that Congress has to be the body to authorize them, not decreed by one person on his own.

CONAN: Neal Katyal, thanks very much for being with us today.

Neal Katyal is--represents Mr. Hamdan in the case of Hamdan vs. Rumsfeld, which the Supreme Court will hear next year. He joined us from his offices in Maryland.

We're going to take a short break and continue talking about terror courts and the president's power in time of war. This is TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Military tribunals have been used throughout American history. Their use for foreign terror suspects is at the center of a legal challenge that the Supreme Court will be hearing not too long from now. The case involves Salim Ahmed Hamdan, who reported--was one of Osama bin Laden's civilian drivers and was captured in Afghanistan in 2001. Our guest is Scott Silliman, a Duke University law professor who specializes in military law and national security. If you'd like to join the conversation, (800) 989-8255; (800) 989-TALK. And the e-mail address is totn@npr.org.

And let's talk with Teresa. Teresa's calling us from Hebron, New York--or Hebron, Kentucky. Excuse me.

TERESA (Caller): Yes, Hebron, Kentucky.

CONAN: There's a lot of them around the country.

TERESA: Yeah.

CONAN: Go ahead, please.

TERESA: Well, I've been just very disturbed by this from the very beginning. I just--I don't understand when you hear about the reasons that we go to war throughout our history, and it seems to always be because we're fighting these totalitarian-type regimes where there's no humanitarian ethics. There's, you know, just--they can arbitrarily throw people in prison and throw away the key. And so for us to be doing that exact same thing--to me, I just don't understand how you can, say, just name-call somebody an enemy combatant, throw them into prison and not have to prove it. And why have they been allowed to sit there for so long? I just...

CONAN: What...

TERESA: ...can't believe this is something that's happening in our country.

CONAN: Scott Silliman, two points there; one of which--there were procedures set up, were there not, for procedural hearings to determine whether people were or not, in fact, enemy combatants?

TERESA: There wasn't--I...

CONAN: Could we hear from Professor Silliman just for a second?

Prof. SILLIMAN: Yes, you're right, Neal. Down at Guantanamo Bay, there is a screening procedure to determine whether someone is a combatant, an enemy combatant, and they must go through that. There is a secondary type of screening that's conducted every year to decide whether they should continue to be held down there because of intelligence value. I think, to directly answer Teresa's point, though, what sets us apart from other countries is that we are dealing with legal challenges to what's going on there. Yes, it took awhile, but the president of the United States made a determination in February of 2002 that none of these folks had any rights under the Geneva Convention, and the United States Supreme Court responded in June of 2004 and said, `Yes, they have access to our courts. They have access to challenge their detention.'

And now the court is asking: Does the president of the United States have the authority to prosecute them by a military commission rather than a court-martial? I look at that as a healthy environment. At least the rule of law that we subscribe to in this country is being utilized. Whatever the Supreme Court does in Neal's case, I think we need to look forward to the rule of law giving us the answers, and that's a far different situation than you find in many totalitarian regimes that I think Teresa's talking about.

CONAN: Mm-hmm. And in this particular case, the administration argued strenuously that this case made its way, of course, up through the federal court system, and Mr.--the case was won on the district court level and then reversed on the appellate court level. The administration argued strongly that, well, they ought to go ahead with one of these military tribunals, and if somebody's found guilty, then take that case to the Supreme Court. And `No,' the Supreme Court said, `we're going to hear this now.'

Prof. SILLIMAN: And that's a very significant point, Neal, because, as you say, the Supreme Court could have waited until Hamdan had gone through a commission and been convicted. As a matter of fact, that's the normal course for criminal trials reaching the Supreme Court. But at least four justices obviously decided that there was something about the military commission system that needed to be tested now in that court. And also, your listeners need to remember that the chief justice of the United States, John Roberts, cannot participate in this decision, because he was involved in a lower-court opinion in the district of Columbia. So at most we'll have eight justices sitting in judgment on this case when it's argued in the spring, but it's very significant that they took it now, rather than waiting until after Hamdan had faced a tribunal.

CONAN: And getting back to Teresa's questions, these procedures that are held to determine whether somebody's an enemy combatant or not--do the suspected enemy combatants get to have representatives? Is this an adversarial proceeding? Do they get to look at all the evidence?

Prof. SILLIMAN: In reality, no, Neal, they do not. They certainly do not have access to lawyers. They have a representative, but the representative also cannot get into a confidential relationship with them. Judge Roberson(ph), the case you mentioned in this case, early on in November of last year, said the whole problem with Guantanamo Bay and the use of commissions is that these people have not been properly determined to be unlawful enemy combatants. And he cites the Geneva Convention and says, `Unless you can show that they are not entitled to the Geneva Conventions, they are presumed to enjoy the benefits, and under the Geneva Conventions, they can only be prosecuted by military courts-martial, the type that we use for our own servicemen.

And I think this is part of what the argument is from the defense in the Hamdan case, is that, at the very least, we should be using military courts-martial with a higher level of due process, rather than military commissions as structured by the president.

CONAN: Teresa, thanks very much for the call.

TERESA: Thank you for the discussion.

CONAN: OK.

Joining us now is Jack Einwechter. He's a retired Army lieutenant colonel and former military prosecutor. He's now in private practice here in Washington, DC.

Thanks very much for joining us today.

Lieutenant Colonel JACK EINWECHTER (US Army, Retired; Former Military Prosecutor): You're welcome. It's great to be here.

CONAN: Now I know you believe the president has statutory authority to use military tribunals. Where do you find it? Explain to us.

Lt. Col. EINWECHTER: The president, when he issued his military order creating or directing that military commissions be held to try suspected terrorists of war crimes, cited his authority in the order itself. He said, `I have my authority based on Articles 21 and 36 of the Uniform Code of Military Justice,' which, indeed, do expressly authorize the use of military commissions for these purposes. But he also cited the authorization for use of military force that Congress passed the joint resolution authorizing the president to use all necessary and appropriate means against nations, organizations and individuals who perpetrated 911 or aided and abetted al-Qaeda in those attacks. So those were his clear statutory bases for the use of military commissions.

CONAN: And, as you know, there are people who disagree that the definition of force, for example, in that congressional act you spoke of, could be extended to legal procedures.

Lt. Col. EINWECHTER: Well, it--yeah, some people take that position, but the Supreme Court has already resolved that question in the case of United States vs. Hamdi, decided in 2004. The Supreme Court, quoting earlier Supreme Court opinions from the World War II era, quoting them approvingly, noted that when Congress authorized the president to use all necessary force to prosecute the war against al-Qaeda, that included all necessary and proper powers to carry that into successful execution. And they said that the detention of enemy combatants and the detention, trial and punishment of unlawful enemy combatants are part of those necessary powers for making war that the president has.

CONAN: So, obviously, the president's--the administration's case would be stronger if Congress had passed a specific statute, but you say this one's good enough.

Lt. Col. EINWECHTER: Well, Congress has--not only in the Uniform Code, but in other parts of the US code, long recognized that military commissions are the appropriate forum for the trial of war crimes, because war crimes, you know, are committed on the battlefield where you have different kinds of evidence and so forth that require a different type of tribunal. And so, you know, it's not just the Uniform Code. It's in the Military Extraterritorial Jurisdiction Act of 2000 and in other parts of the code, where Congress has clearly expected or given intent or given hints of its intent to see the president use war-crimes commissions.

CONAN: Let's get another caller on the line, and this is Don. Don's calling us from Cleveland.

DON (Caller): Yes. I'm concerned that this--the military tribunals--there's too much room for abuse because of--the broad definition of terrorism allows any political opponent to be called a terrorist. And isn't there too much room for abuse?

CONAN: I think the term is `enemy combatant,' Don, that you're talking about. But he's got a point, doesn't he, Jack Einwechter?

Lt. Col. EINWECHTER: Well, the--I respectfully disagree with the caller because the definition of terrorism has been expressly defined, not only in the military commission orders but also in international law and, indeed, in the US statutory code. It hasn't been subject to abuse in the US, based on those definitions, and I don't expect it will be here at military commission. Also bear in mind, as Professor Silliman noted, there is judicial review of these military commissions. Indeed, the Supreme Court decision to hear the Hamdan case shows that this process does not occur without review by the judicial branch of government.

CONAN: There was a review by the Supreme Court over the administration's objections.

Lt. Col. EINWECHTER: Well, the admin--the Supreme Court acknowle--or resolved the question of whether there could be habeas corpus review...

CONAN: Right.

Lt. Col. EINWECHTER: ...and they resolved that in 2000.

CONAN: And it's--despite the administration's arguments, there could.

Lt. Col. EINWECHTER: Yeah. The administration took the position initially that there would be no habeas corpus review of these proceedings, and they were wrong.

CONAN: Yeah. And now the case--as the tribunals are set up, there is no review by civilian courts for any person who's convicted. You can't appeal to a federal court to see if the trial was held fairly, if any other procedures were wrong. He's going to be reviewed, as we were hearing earlier, up the military chain of command to the president of the United States, and not to civilian courts unless the court rules differently.

Lt. Col. EINWECHTER: That's correct. The--right now, let's see--it's a review by a military review panel, which, as you know, consists of eminent jurists, including Griffin Bell...

CONAN: Right.

Lt. Col. EINWECHTER: ...but it is not a Article ...(unintelligible) judiciary...

CONAN: Former attorney general, yeah.

Lt. Col. EINWECHTER: ...that will be doing the review. However, the Supreme Court has made it clear that collateral attacks on these commissions by the defendants is available under the habeas corpus statute.

CONAN: Don, thanks very much for the call. Appreciate it.

Here's an e-mail. And I was--this from Diane in Traverse City, Michigan: `When the administration seeks unlimited executive powers, it claims war powers, as if the war on terror is a classic war. When it comes to the responsibilities that go with such a classic war--Geneva Conventions, etc.--they want to claim that it's not a classic war. This is a new type of conflict for which those rules don't apply. I'm not sure that they can be allowed to have it both ways, and I hope the court will make this clear.'

Would you agree, Jack Einwechter, that they're trying to have it both ways?

Lt. Col. EINWECHTER: No, I don't agree at all, because the questioner there assumes that Geneva Conventions were intended to apply to every single combatant on the battlefield in a traditional war, and the fact is they were not so intended. The whole structure of the law of war under Geneva Conventions is intended to create incentives to engage in lawful combat, so that even in a traditional war, if certain combatants were not complying with the law of war, weren't wearing uniforms and following responsible command and so forth, they would not be entitled to claim the protections of Geneva.

And that's the very same analytical process that's being applied in this case. Al-Qaeda, as you know, is an organization which is, by its own fatwas and other public declarations, committed to murdering innocent civilians and non combatants, so that their whole purpose of existence is to violate the law of war. And Geneva Conventions say that when that's the case, you don't get the protections of Geneva.

CONAN: Jack Einwechter, thanks very much.

Lt. Col. EINWECHTER: OK. Thank you.

CONAN: Jack Einwechter, a retired Army lieutenant colonel, former military prosecutor, now a lawyer in private practice. We spoke to him at his office here today in Washington, DC.

We're talking about military tribunals and the powers of a president in time of war. You're listening to TALK OF THE NATION from NPR News.

And, Professor Scott Silliman at Duke University School of Law, is still with us. Let's get another caller on the line, and we'll go to Jim, Jim calling from New Bern in North Carolina.

JIM (Caller): Hi.

CONAN: Hi.

JIM: Thanks for taking my call.

CONAN: Sure.

JIM: I was listening to Mr. Einwechter just before you came back to me, and he was kind of alluding to what I was thinking about, is that, you know, the Geneva Convention was originated--What?--50 years ago or so, and it was designed for a country that was at war with another country and it kind of excluded the innocent people that were, you know, a part of the war. But now with the war on terrorism, it's not really a country at war with another country. And the enemy combatants are, you know, criminals, basically. So can we amend the Geneva Conventions or have something designed for international law? The president of the United States is acting within the realms of United States law, but that doesn't encounter international law in the...

CONAN: Well, the Geneva Convention is American law as well. It was enacted as part of the ratification process.

But, Scott Silliman, let me ask you about Jim's point. Is it time to consider, well, modifying the Geneva Conventions?

Prof. SILLIMAN: Well, that's an excellent point, Neal, and there is a debate as far as whether the Geneva Conventions of 1949 are antiquated. They don't consider the modern state of war or non-state actors. But until that's done, Neal, that is the law, as you point out. Our servicemen are very proud of the fact that they comply with the rule of law no matter how we characterize the conflict. That's our official Department of Defense policy. And I think if you had someone in uniform who could speak on your program about this, they would say, `The Geneva Convention is not only the law, but it's the right way to conduct our activities. And also, it gives us protection from those that would seek to do us harm.' It's not that we comply because the other country complies as well and, therefore, we don't have to comply when the other side doesn't. It's the right thing to do, it's the law of international treaty obligations that we have right now and until it's changed, I think we should comply with Geneva.

And I guess that's the question before the court: Can the president of the United States basically unilaterally determine that a entire group of individuals are not entitled to the protection of the Geneva Conventions? That is one of the principal points that the Supreme Court will have to take up in the Hamdan case.

CONAN: And is this case essentially--we constantly see conflict between the powers of Congress and the powers of the president, struggles there, more obvious political struggles sometimes. Is this really a case of a struggle between the judicial and the executive branch?

Prof. SILLIMAN: Well, I think it is in a way, Neal. I think it's the judicial branch that has in times past always given tremendous deference to the president of the United States when he's acting as commander in chief and prosecuting the war. Obviously, the courts have recognized that we're in a different environment. This is not like World War II or Vietnam. There's something different about it, and so I think they are trying to probe what the proper role of the courts should be. And we're seeing this in the Guantanamo Bay case last year, where they opened up the courts to challenge the detention, and now with this contesting military commissions. All the points that Jack raised about the authority the president claims, there are arguments that could be made for that, but it's not certain. And that's, again, what the court needs to sort out. The authorization for use of military force--the Supreme Court has said that authorized the detention. It has not yet said whether it authorizes prosecution by military commission. That's what the Hamdan case is all about.

CONAN: Jim, thanks very much for the call.

And, Scott Silliman, thank you so much for your time today. Appreciate it.

Prof. SILLIMAN: My pleasure, Neal.

CONAN: Scott Silliman is a professor at the Duke University School of Law in Durham, North Carolina, where he specializes in military law and national security. He joined us from the studios at Duke University News Service there in Durham, North Carolina.

When we come back from a short break, we're going to talk to the author of a new book on Hollywood's first and maybe it's most controversial African-American star, Stepin Fetchit.

I'm Neal Conan. We'll be back after the break. You're listening to TALK OF THE NATION from NPR News.

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