The US Supreme Court begins hearing a case on the legality of the military trials at the Guantanamo Bay prison camp in Cuba. Lawyers for detainee Salim Ahmed Hamdan - former driver for Osama Bin Laden - say the tribunals are unconstitutional. Legal experts say a potential landmark ruling against the trials would rein in US President Bush's expanded powers in punishing suspected terrorists. Mr Hamdan, from Yemen, denies charges of conspiracy to commit war crimes. Mr Hamdan, who has been held at Guantanamo since 2002, says he was paid a pittance as Bin Laden's driver in Afghanistan and denies he was a member of al-Qaeda.
On NPR's "Morning Edition," Nina Totenberg presents the issues.
Totenberg: At the center of today's case is Osama bin Laden's onetime driver, a Yemeni citizen named Salim Ahmed Hamdan, who was captured in Afghanistan in 2001 and turned over to the US military. The question in this case is whether the President has the power on his own to set up military tribunals to try Hamdan and others on war crimes charges, whether the President may appoint the judges and jurors for the trial, set the procedures, and review the verdict. Or whether the other two branches of government, Congress and the courts, have a role to play. The Supreme Court's decision in the case could be one of the most important on presidential war powers since World War II, or it could be a fizzle. The fizzle could come about because when the Hamdan case was originally pending before the Supreme Court last year, Congress passed a statute that stripped the courts of jurisdiction over at least some pending cases. So the threshhold question is whether the Court has any business ruling on this case at all. The federal government says it does not because all pending cases at Guantanamo were taken out of the Court's hands. But lawyers for Hamdan contend that the law was prospective, and was never intended to cover the Hamdan case and others in the pipeline that test the very structure of the proceedings at Guantanamo. Further, they contend, if the law does in fact strip jurisdiction from the Supreme Court, then it would be unconstitutional. The core issue is whether the president, as commander in chief, has the unilateral power to set up military tribunals. Andrew McBride is a former federal prosecutor who has filed a brief on behalf of three former attorneys general in the Bush and Reagan administrations.
McBride: The commander-in-chief has the authority to repel invasion or attack. We were attacked on 9/11 in the same way that we were attacked at Pearl Harbor. The President is entitled to repel that attack and use certain means to do so, one of which could be the use of military tribunals.
Totenberg: The Bush administration contends that, in addition to its inherent judicial authority to try war criminals by military commission, it also has that power under the Authorization for the Use of Military Force passed by Congress right after 9/11. But Hamdan's lawyers counter that the Authorization makes no mention of military tribunals. Yes, they concede, military action, of necessity, allows the detention of prisoners seized on the battlefield, but it does not authorize trials outside the rules set down by the Uniform Code of Military Justice. That code sets up specific rules for trials even on the battlefield, rules that include legal representation for the accused, his right to be present, and to have the evidence tested by his lawyer, rules for the handling of classified information, rules that strictly separate the judges and jurors from the command structure, and rules that provide for independent court review, both by the Court of Appeals for the Armed Forces, and by the US Supreme Court. In contrast, say Hamdan's lawyers, Bush military tribunals provide for none of that. Georgetown law professor, Neal Katyal, represents Hamdan.
Katyal: The criminal trial Hamdan faces at Guantanamo is a constant moving target. The rules change all the time. They changed even after the Supreme Court was asked to hear the case.
Totenberg: Thus, for example, though the rules originally guaranteed that the defendant could be present at his trial, they changed midstream and Hamdan was excluded from the jury selection process. Last July, the President authorized evidence gained through torture, but on the eve of the Supreme Court argument, he revoked that rule. On another front, in an extraordinary development, military prosecutors at one point joined defense lawyers in objecting to the colonel appointed as the presiding judge because they said he was too subject ot influence by the chain of command. The judge, however, was not removed. Among Hamdan's other complaints was the the evidence to be presented at his trial could be in the form of unsworn written statements that could not be tested by cross-examination. And if he is convicted, it is the President, not an independent court, that reviews the verdict and sentence up to and including the death penalty. Again, Neal Katyal:
Katyal: The problem with President Bush's order on military commissions is that it makes him judge, jury, and 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 that 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. That was one of their complaints about King George III.
Totenberg: Andrew McBride counters that argument this way:
McBride: The 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 process. The form of that trial can vary according to military circumstances.
Totenberg: A huge contingent of people and organizations disagree, however, including retired top military brass, State Department officials, and diplomats who have served in Democratic and Republican administrations. They have filed 36 briefs in this case asserting that the Bush administration has departed starkly from the requirements agreed to by the United States in the Geneva Conventions after WWII. Yale Law School Dean, Harold Koh, wrote the diplomats' brief. He says that even an accused terrorist has certain basic rights to a fair trial under the Geneva Conventions. He knows the US 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.
Koh: So for us to proceed and to try people under these standards would subject us to a charge that we're engaged in some sort of kangaroo justice.
Totenberg: The Bush administration, however, contends that the Geneva Conventions are not enforceable in the courts, that if one country believe another is violating the treaty, the matter is to be resolved dipomatically. Neither Al Qaeda nor the Taliban, however, is a nation or a signatory to the Geneva Conventions. Dan Collins, who served previously as Deputy Associate Attorney General in the Bush administration concedes that may lead them without a way to enforce the Geneva treaty.
Collins: It would discourage combatants from complying with the laws of war if they could claims its protections without having to obey its obligations.
Totenberg: But Hamdan's lawyers counter that it's the Bush administration which is trying to have it both ways, using the laws of war as the basis for trying Hamdan and then saying the treat that governs the laws of war -- the Geneva Conventions -- does not apply. The Bush administration points to Supreme Court decisions during and right after WWII that upheld military tribunals like these, but the Administration's opponents point to changes in the laws of war under the Geneva Conventions since WWII. And they contend that because of those changes, the US did not use military tribunals in the half century that followed, not even against the guerrilla fighters of the VietCong. That changed, however, with 9/11. That's why this case could be such a landmark. Critics of the Bush military tribunal system see it as an outlier, an outlaw, a betrayal of the American coin of the realm -- its reputation for fairness and the rule of law. Those defending the system see it as perfectly fair within the context of post-9/11 reality. Now the issue is in the hands of the Supreme Court. But only eight justices will hear today's argument. Chief Justice John Roberts will not participate because, as a lower court judge, he served on the panel that upheld the tribunals. And with Roberts recused, there is the possibility of a tie vote.
Back to the BBC report:
Legal scholars see it as a challenge to the Bush administration's assertion that the president has wide powers to fight terrorism as he sees fit - powers granted by the Constitution and by Congress. Efforts by the White House to get the Supreme Court to drop the case have been rebuffed by the justices, who believe this is an issue they should at least consider, our correspondent says. The court will hear all arguments on Tuesday and is expected to issue a ruling in early summer.
It seems to me that one of the glaring problems in this as in similar cases is that they are based on an assumption of guilt. That's where the kangaroo hops into the scene.