Supreme Court Questions Military Trials for Detainees
MICHELE NORRIS, Host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
MELISSA BLOCK, Host:
And I'm Melissa Block. At the Supreme Court today, arguments in a case that could produce one of the most important rulings on presidential powers in wartime since World War II.
NORRIS: At issue, the system of military tribunals the Bush Administration has set up at Guantanamo Bay, Cuba. That system is used to try prisoners accused of committing war crimes. Because of the importance of today's case, the court allowed audio of the proceedings to be released shortly afterwards. NPR's Nina Totenberg has our report.
NINA TOTENBERG: Not so, said lawyer Katyal, pointing to the fact that the Senate changed the original wording of the law so as to make sure that challenges like this one that were in the pipeline would be heard, and that the structure of the military tribunal system would be tested. Justices Scalia and Alito suggested that military tribunals are no different from any other criminal proceeding and would have to wait until there is a verdict and final decision before the Supreme Court could review the matter. But lawyer Katyal rejected that assertion.
NEAL KATYAL: This isn't a challenge to some decision that a court makes, this is a challenge to the court itself. And that's why it's different than the ordinary criminal context that you're positing. This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States. And if you adopt the government's position here, it effectively replicates the blank check that this court rejected in Handi.
TOTENBERG: Handi was the court's decision two years ago, holding that the president could not designate an American citizen an unlawful enemy combatant and hold him in prison indefinitely without charge. Today, lawyer Katyal told the justices that the administration is making a similar assertion here, an assertion that the president can, without explicit congressional authorization, set up military tribunals, establish the procedures, name the judges and jurors and then review the verdict and sentence. What's more, said Katyal, the charge against Hamdan in this case, the standalone offense of conspiracy is not a charge permitted under the laws of war because it's too vague.
KATYAL: The world rejects conspiracy because, if it's adopted, it allows so many individuals to get swept up within its net. And so, for example, under the government's theory, a little old lady in Switzerland who donates money to al-Qaida and that turns out to be a front for terrorist acts and so on might be swept up within this broad definition of conspiracy. And that's why international law has so rejected the concept of conspiracy.
TOTENBERG: Katyal contended that war crimes trials must be tried under the minimal rules of fairness set down in the Uniform Code of Military Justice. Already, noted Katyal, Hamdan has been denied the right to be present at the beginning of his trial, the jury selection process. Justice Ginsburg pursued the matter.
RUTH BADER GINSBURG: What are the other rights recognized by all civilized people that these tribunals do not guarantee?
KATYAL: They're the most minimal baseline rights. We're not talking about, you know, Miranda rights or something like that. We're talking about just a set of core ideas that every country in the world is supposed to dispense when they create war crimes trials. And even that minimal standard the government says they don't want to apply here.
TOTENBERG: Following Katyal to the lectern was Solicitor General Paul Clement, defending the administration's military tribunal system.
PAUL D: The executive branch has long exercised the authority to try enemy combatants by military commissions. That authority was part and parcel of George Washington's authority as Commander in Chief of the Revolutionary forces, as dramatically illustrated by the case of Major AndrÃÂ©. And that authority was incorporated into the Constitution. Congress has repeatedly recognized and sanctioned that authority. Indeed, each time Congress has extended the jurisdiction of the court martials, Congress was at pains to emphasize that that extension did not come in derogation of the jurisdiction of military commissions.
TOTENBERG: Clement went on to say that the Geneva Conventions governing the laws of war are not enforceable in the U.S. courts. Justice Souter interrupted.
DAVID HACKETT SOUTER: Do you agree that it applies as part of the law of war?
CLEMENT: Well, I don't think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict.
HACKETT SOUTER: Well, that, I guess, is the problem that I'm having. For purposes of determining the domestic authority to set up a commission, you say the president is operating under the laws of war recognized by Congress. But for purposes of a claim to status, and hence the procedural rights that go with that status, you're saying the laws of war don't apply. And I don't see how you can have it both ways.
TOTENBERG: Justices Souter, Kennedy and Breyer all asked questions evidencing a concern that the government's position was an effort to circumvent a major constitutional right, the right to go to court to challenge the basis of your imprisonment, the right known as habeas corpus. Justice Scalia rode to Solicitor General Clement's rescue on this point, but, as you will hear, Justice Kennedy didn't seem to buy it.
ANTONIN SCALIA: We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally.
CLEMENT: That's exactly right, Justice Scalia, and this court made clear that it doesn't intervene even when a U.S...
ANTHONY M: Is that true? If a group of people decides they're going to try somebody we wait until that group of people finishes the trial before the court, before habeas intervenes to determine the authority of the tribunal to hold and to try?
CLEMENT: With respect, Justice Kennedy, this isn't a group of people. This is the president invoking an authority that he's exercised in virtually every war that we've had. It's something that was recognized in the Civil War, something in World War II, that this court approved.
KENNEDY: I had thought that the historic function of habeas is to, one of its functions, is to test the jurisdiction and the legitimacy of a court.
SCALIA: This is not a, you know, a necktie party. Where it parades as a court and it's been constituted as a court, we normally wait until the proceeding's completed.
CLEMENT: Well, that's exactly right, Justice Scalia.
TOTENBERG: Justice Breyer ticked off some of the problems he saw arising if the court were to accept the government's argument that Congress had in fact stripped the courts of jurisdiction to rule on military tribunals.
STEPHEN G: Wouldn't your reading raise a terrifically difficult constitutional question, if not this case, in cases that are pending right now where prisoners in Guantanamo are claiming that they have not yet had the CSRT hearing? They're claiming, one or two, we had it and we're still here. We won, but we're still here. They're claiming, we don't want to be sent back to Qatar. And they're claiming, some, that they were tortured. All right? Now, so my question is, how could it, if we accepted your interpretation, possibly avoid the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas cases?
TOTENBERG: Solicitor General Clement conceded that Congress did not speak clearly on the subject. But he maintained that even if it did it inadvertently, Congress could suspend the writ of habeas corpus. That provoked this exchange between Justices Souter and Clement, with Justice Scalia chiming in to aid Clement.
HACKETT SOUTER: You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?
CLEMENT: I think at least if you're talking about the extension of the writ to enemy combatants to writ side here toward the United States...
HACKETT SOUTER: The writ is the, now wait a minute, the writ is the writ. There are not two writs of habeas corpus for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated will vary with the circumstances. But jurisdiction over habeas corpus is jurisdiction over habeas corpus. And it seems to me that the position you have taken is that if at the end of the day we have to reach the question that Justice Breyer described, the answer to that question may be, yes the writ of habeas corpus was suspended by inadvertence. Congress did not intend to do it. Is that really your position?
CLEMENT: No Justice Souter there's no. My point is not inadvertent. It's whether they have to say or incant any magic words that they are now invoking their power...
SCALIA: They could surely set forth a procedure which amounts to a suspension of the writ and if that procedure is done in a state of insurrection or invasion, that would constitute a suspension of the writ. Even though they don't say we are suspending the writ of habeas corpus.
CLEMENT: That is my point. And there's nothing inadvertent here.
HACKETT SOUTER: Is it also your point when there's no insurrection or invasion?
CLEMENT: Well then any effort to suspend the writ would be invalid, but this is not a case where there's any question of...
HACKETT SOUTER: Perhaps, perhaps that's something that a court ought to inquire into when it gets into the question of congressional intent.
TOTENBERG: Justice Breyer summarized the arguments made by the Guantanamo prisoners.
BREYER: I take their argument as saying, look, you want to try a war crime. You want to say this is a war crimes tribunal. One, this is not a war, at least not an ordinary war. Two, it's not a war crime because that doesn't flow under an inaction of law, and three, it's not a war crime tribunal or commission because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it. It's not in any of those in other respects like past history, and if the president can do this, well then he can set up commissions to go to Toledo and in Toledo pick up an alien and not have any trial at all except before that special commission. I've tried to summarize a whole bunch of points for you to get at as you wish.
CLEMENT: Well, let me try to hit a couple (LAUGH), let me try to hit a couple of highlights.
BREYER: I'll be interested in your answer if you can get it out. LAUGH
CLEMENT: Let me try to hit a couple of highlights. I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved. As to whether or not the law of war encompasses the crime of conspiracy to violate the laws of war, we think that is clearly established. That is something that the United States treated as a valid war crime in the Civil War. That is something that the United States treated as a valid war crime in World War II.
TOTENBERG: The Court that heard today's case was one justice short. Chief Justice Roberts recused himself because he participated in the Hamdan case when he was a lower court judge. With just eight justices on the bench today, it was unclear how the court would rule. But the Bush Administration got a much more skeptical reception than most had expected. Nina Totenberg, NPR News, Washington.
BLOCK: And you can listen to more audio from today's arguments at the High Court at NPR.org.
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