ROBERT SIEGEL, host:
A federal judge in Washington, D.C. has given the green light for war crimes trials to begin next week at Guantanamo Bay, Cuba. Judge James Robertson refused to delay the trial of Osama bin Laden's driver.
NPR legal affairs correspondent Nina Totenberg joins us now. And Nina, this case involves a Yemeni named Salim Hamdan, dates back to 2004. And if I've got this right, this has been the test case in the question of whether and how war crimes trials can proceed. So bring us up to speed here.
NINA TOTENBERG: Well, it was Hamdan's case in which the Supreme Court ruled in 2006 that President Bush did not have the authority on his own to set up these kinds of trials. And the court at the same time suggested that the trials will have to meet some minimal constitutional standards as well as standards under the Geneva Conventions.
So then, the Bush administration went back to Congress - or went to Congress for the first time - and Congress passed a law authorizing the trials, the first of which involves Mr. Hamdan and is set to begin next week.
SIEGEL: But Hamdan's lawyers tried to block the trial. On what grounds?
TOTENBERG: Basically, his lawyers are claiming that the military commissions are operating without a rule book, that they're making it up as they go along, that they're violating the rights of the accused in ways that would never be tolerated in a civilian court or a military court martial.
And in federal court today, Hamdan's lawyer, Neal Katyal, said it is impossible to defend his claim because, as he put it, we don't know what the rule book is. This is like a football game, he said, in which you don't know whether a field goal is three points or seven points.
At that point, Judge Robertson interjected. Are you asking me, he said, to write the rule book, or the Court of Appeals or the Supreme Court? How do these questions get tested in the abstract without a trial?
Well, in the end, after about two hours of argument, the judge rules on the bench that while the rules for the trials may in fact turn out to be unconstitutional and the resulting convictions may eventually be invalidated - or not - the time for deciding that is after there's been a trial, not before, and so he refused to issue any sort of order delaying the trial.
SIEGEL: So the trial starts next week. What'll the trial be like? Do we have any idea?
TOTENBERG: Well, on the one hand, there are a lot more protections for the accused than there are for regular detainees who want to challenge their designation as detainees. If you're accused, you have a lawyer. The judge isn't subject to command influence. There's an appeals process that goes right to the Military Court of Appeals to the civilian courts.
On the other hand, it's sort of wild and woolly, unknown territory. For example, there's no right against self-incrimination except at the trial. In today's hearing, for example, one of…
SIEGEL: That means that something that Hamdan said in an interrogation could be used against him?
TOTENBERG: Exactly. And at today's hearing, one of his lawyers disclosed that just three days ago, the defense was informed that Hamdan was the subject of a sleep deprivation program at Gitmo called Operation Sandman, in which he was woken up every hour or two for 50 days. And all the statements he made during those interrogations are being used against him.
SIEGEL: What exactly is Hamdan charged with?
TOTENBERG: Well, when we talk about war crimes, we think of something like genocide. That's not what he's charged with. He's charged with something that is actually not a war crime under the Geneva Conventions. He's charged with conspiracy and providing material support for terrorism. The government says this is a slam dunk for him that he was carrying missiles to Kandahar and that he was clearly aiding and abetting, as it were, terrorism.
SIEGEL: Nina, I gather one of the questions that was touched on in this hearing today is how to apply the Supreme Court's ruling earlier this year that detainees have the right of habeas corpus. They can - they can demand their day in court.
TOTENBERG: They absolutely can, but the government maintains they can't if they are charged for the crime, that they essentially lose that right before trial so that they can essentially be put into a kind of limbo, a Never Never Land. By being accused of a crime, they lose the right, in essence, to challenge their detention.
SIEGEL: If Hamdan is actually acquitted by the court, that doesn't actually mean he goes free (unintelligible).
TOTENBERG: No, no. He goes back to being a detainee. It's a Catch-22 in a way. They get you coming or going.
SIEGEL: Thank you, Nina.
TOTENBERG: Thank you.
SIEGEL: NPR legal affairs correspondent Nina Totenberg.
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