RENEE MONTAGNE, host:
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President Bush's order of setting up special military tribunals to try accused war criminals has gotten a skeptical reception in the Supreme Court.
Although the President authorized the special trials right after 9-11, the military tribunal system has been mired in controversy from the beginning. Of the ten Guantanamo prisoners charged with war crimes so far, not one of those trials has been completed.
In the Supreme Court yesterday, the entire system was challenged in a case brought by Osama bin Laden's one-time driver, Salim Ahmed Hamdan, who was captured in Afghanistan in 2001 and turned over to U.S. military authorities.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG reporting:
The first question facing the Justices, involved whether they could hear this legal challenge at all. The Bush Administration contended that Congress had stripped the court of jurisdiction to rule on the matter, but five Justices didn't seem to buy that argument and only Justices Scalia and Alito overtly expressed sympathy with the Administration's position.
Representing prisoner Hamdan, lawyer Neal Katyal told the Justices that, under the tribunal system set up by the president, Mr. Bush had in essence made himself judge, jury, and executioner, by establishing the rules for the trials; appointing the judges and jurors; and then holding for himself, the review of verdicts and sentences, including the death penalty.
In short, said Katyal, the military tribunals are an unconstitutional blank check for the President.
Mr. NEAL KATYAL (lead attorney for Salim Ahmed Hamdan): This is a military commission that is literally unbounded by the laws, constitution, and treaties of the United States.
TOTENBERG: Katyal maintained that the president is required by the constitution, by statutes, and by the laws of war set out in the Geneva Conventions, to provide basic elements of fairness. These include the right to be present at trial, something which Katyal noted had already been denied his client, and the right to appeal to an independent court.
In addition, Katyal asserted that the single charge against his client, the charge of conspiracy, is illegal under the laws of war because it's too vague.
Mr. KATYAL: It has been rejected in Nuremburg, it's been rejected in the Tokyo tribunals, it's been rejected in the international tribunals for Rwanda and Yugoslavia; and most importantly, it's been rejected by the Congress of the United States.
TOTENBERG: Representing the Bush Administration, Solicitor General Paul Clement ran into a buzz saw by contending that the tribunals were set up to enforce the laws of war; but at the same time arguing that the Geneva Conventions governing the laws of war, are not enforceable in the U.S. court.
I have a problem with that, said Justice Suder.
Justice DAVID SUDER (United States Supreme Court): And I don't see how you can have it both ways.
TOTENBERG: The biggest fireworks came on the question of Habeas Corpus, the constitutional right to go to court to challenge ones' imprisonment. When Clement asserted that Congress could, without intending to, suspend the Writ of Habeas Corpus, Justice Suder interrupted in exasperation saying, Now wait a minute!
Justice Kennedy was quieter, but equally firm, in this exchange with Justice Scalia and Mr. Clement. First is Scalia.
Justice ANTONIN SCALIA (United States Supreme Court): We don't intervene on Habeas Corpus when somebody says that the panel is improperly constituted. We wait until the proceeding is terminated normally.
Mr. PAUL CLEMENT (Acting Solicitor General, United States): That's exactly right, Justice Scalia, and this court made clear that it doesn't hear, even when a U.S...
Justice ANTHONY KENNEDY (United States Supreme Court): Is that true if a group of people decide they're going to try somebody? We wait until that group of people finishes the trial before the court inter...before Habeas intervenes to determine the authority of the tribunal to hold and to try?
Mr. 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.
Justice 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.
Justice SCALIA: This is not a, you know, a neck-tie party.
Mr. CLEMENT: Well that's exactly right, Justice Scalia.
TOTENBERG: Justice Breyer observed that the prisoners at Guantanamo have cases pending right now that pose difficult constitutional questions. Some have not had hearings to determine whether they're enemy combatants or innocents picked up erroneously in Afghanistan and elsewhere. Some have actually been cleared in hearings but are still being held, because to send them home would subject them to retribution.
And some are claiming they have been tortured. Breyer then summed up the legal arguments presented in the Hamdan case alone.
Justice STEPHEN BREYER (United States Supreme Court): This is not a war, at least not an ordinary war. Two, it's not a war crime, because that doesn't fall under international law. And three, its not a wartime tribunal or commission; because no emergency, not on the battlefield; civil courts are open; there is no military commander asking for it; its not in any of those and 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.
Mr. CLEMENT: I think the events of 9-11 speak to the fact that this is a war, where the laws of war are involved.
TOTENBERG: Solicitor General Clement added that the president may establish military tribunals under his power as Commander and Chief. Nothing that Congress has done, said Clement, nothing in the code of military justice prevents the establishment of these tribunals. But by the end of yesterday's argument, the president's power to set up those tribunals without explicit authorization from Congress and review by the courts, that assertion of unilateral power was, at minimum, very much in doubt. Nina Totenberg, NPR News, Washington.
MONTAGNE: You can hear highlights from yesterday's Supreme Court arguments at our website, NPR.org.
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