High Court Hears Challenge to Military Tribunals The U.S. Supreme Court hears arguments in a case that challenges President Bush's power to set up military tribunals for suspected terrorists. The case centers on Osama bin Laden's former driver, who says he is an innocent father who worked for bin Laden only to make a living. The Bush administration says he is a trained terrorist who should be tried before a special tribunal.
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High Court Hears Challenge to Military Tribunals

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High Court Hears Challenge to Military Tribunals

Law

High Court Hears Challenge to Military Tribunals

High Court Hears Challenge to Military Tribunals

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The U.S. Supreme Court hears arguments in a case that challenges President Bush's power to set up military tribunals for suspected terrorists. The case centers on Osama bin Laden's former driver, who says he is an innocent father who worked for bin Laden only to make a living. The Bush administration says he is a trained terrorist who should be tried before a special tribunal.

RENEE MONTAGNE, Host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, Host:

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Andrew McBride is a former Federal Prosecutor who's filed a brief on behalf of three former Attorney's General in the Bush and Reagan Administrations.

ANDREW MCBRIDE: The Commander in Chief does carry with it the authority to repel invasion or attack, and use certain means to do so: one of which could be the use of military tribunals.

TOTENBERG: Georgetown law professor Neal Katyal represents Hamdan.

NEAL KATYAL: The criminal trial Hamdan faces at Guantanamo is a constant moving target. The rules change all the time. They've changed even after the Supreme Court was asked to hear the case.

TOTENBERG: Again, Neal Katyal.

KATYAL: The problem with President Bush's order on military commissions is that it makes him judge, jury, executioner; the person who defines what the offenses are; the person who defines what the procedures are; and then it goes so far as to say the Federal Courts have virtually no role in overseeing this entire trial process. That conflation of all government powers in one man is something that our founders rebelled against. It was one of their complaints about King George III.

TOTENBERG: Andrew McBride counters that argument this way.

MCBRIDE: A military tribunal, by its nature, is a tool of war and it has to be up to the president how much process to give. Let's face it, prior to the institution of military tribunals in the late 18th century, spies and people who fought out of uniform were simply shot. So I think the military tribunal is an evolution of war practice and the form of that trial can vary depending military circumstances.

TOTENBERG: Yale Law School Dean Harold Koh, who wrote the Diplomat's Brief says that even an accused terrorist has certain basic rights to a fair trial under the Geneva Conventions. He knows that the U.S. protests when other countries like China and North Korea conduct trials with judges who are not independent and where the defendant has only token rights.

HAROLD KOH: So for us to precede and to try people under these standards would subject us to a charge that we're engaged in some of kangaroo justice.

TOTENBERG: Dan Collins who served previously as Deputy Associate Attorney General in the Bush administration concedes that may leave them without a way to enforce the Geneva treaty.

DAN COLLINS: It would discourage combatants from complying with the laws of war if they could claim its protections without having to obey its obligation.

TOTENBERG: Nina Totenberg, NPR News, Washington.

MONTAGNE: And while holding the line on presidential powers, the White House has made a big change today: Andy Card has resigned as chief of staff. President Bush made the announcement this morning from the oval office.

GEORGE W: On most days, Andy is the first one to arrive in the west wing, and among the last to leave. And during those long days over many years, I've come to know Andy as more than my chief of staff. He is leaving the White House but he will always be my friend. Laura and I have known Andy and his wife Cathy for more than 20 years, and our close friendship will continue.

MONTAGNE: You're listening to Morning Edition from NPR News.

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