STEVE INSKEEP, host:
This is MORNING EDITION from NPR News. I'm Steve Inskeep.
RENEE MONTAGNE, host:
And I'm Renee Montagne. Good morning.
The Pentagon's top uniformed lawyers are challenging key parts of a bill drafted by the Bush administration to create military tribunals for trying terror suspects. In a hearing before a House committee, the military lawyers said that limiting suspects' access to the evidence against them could violate international law. The administration is pressing Congress to take quick action on the bill.
Scott Silliman is the executive director of the Center on Law, Ethics and National Security at Duke University. He joins us now. Good morning.
Mr. SCOTT SILLIMAN (Executive Director, Center on Law, Ethics and National Security): Good morning, Renee.
MONTAGNE: The Supreme Court ruled last June that the president had overstepped his authority in ordering military tribunals for some terror suspects. Remind us of what their decision said.
Mr. SILLIMAN: Well, Renee, first, the Court said that even though Congress had passed a law last December, December of 2005, called the Detainee Treatment Act that stripped the federal courts of jurisdiction over cases such as Hamdan's, that that law was not retroactive and could not apply to a case before them because it had been in litigation before the Congress acted.
And as to military commissions themselves, the Court said that even though the president might have authority under the Constitution to create such tribunals, he had to stay within the boundaries which Congress had set back in 1950 in the Uniform Code of Military Justice. Specifically, he had to justify why military commissions should deviate in their rules and procedures from what we use in courts-martial for our own service personnel.
And he also had to comply with a minimum set of judicial guarantees set out in Common Article 3 of the Geneva Conventions because that, said the Court, was part of the law of war, which served as the legal predicate for military commissions.
The court said the president had done neither, and therefore his system for commissions was illegal.
MONTAGNE: Well, simply put, does the Bush administration's proposal address these issues?
Mr. SILLIMAN: I think it tries to, Renee. First, the legislative proposal which the president sent to Congress on Wednesday would specifically make the Detainee Treatment Act retroactive to September 11 of 2001, thus, by Congressional decree, overturning the Supreme Court's ruling in that regard and barring any other cases like Hamdan's from receiving judicial review other than a minimal level of review in the Court of Appeals for the District of Columbia.
Secondly, the president's proposal gives some additional due process rights to detainees facing military commissions, process rights that were not in the original commissions which the court struck down, such as having a judge actually conducting the trial and making legal rulings binding on the jury panel. I think the president's thought is that such additional protections would satisfy the court's holding with regard to the required fairness of the system.
But the proposal also says, Renee, that Congress, by legislative edict, satisfy - or that this proposal satisfies international law. They can do that domestically, but it doesn't necessarily mean that the system does in fact comply with international law.
MONTAGNE: Well, just in the few seconds that we have left, tell us how closely President Bush's plan follows the Uniform Code of Military Justice. And I'll just say that includes specific rights for the accused, such as the right to see the evidence against them and present - and be present at one's own trial.
Mr. SILLIMAN: And that's the sticking point, Renee, because although the proposal is supposedly modeled on the Uniform Code of Military Justice, it does differ in that way. It allows for classified information to be used against the detainee without him ever seeing even a classified summary of it. In other words, he'll never know what evidence the jury panel saw that resulted in him being convicted and perhaps even being sentenced to death.
It also allows for him to be removed from his own trial when classified evidence is being offered. Normally, an accused can only be removed from his trial if he becomes disruptive.
MONTAGNE: Thank you very much for joining us.
Mr. SILLIMAN: My pleasure, Renee.
MONTAGNE: Scott Silliman is the executive director of the Center on Law, Ethics and National Security at Duke University.
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