Analysis: Supreme Court to hear case on military tribunals. NEAL CONAN, host: This is TALK OF THE NATION. I'm Neal Conan in Washington.

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1 Analysis: Supreme Court to hear case on military tribunals November 9, 2005 from Talk of the Nation NEAL CONAN, host: This is TALK OF THE NATION. I'm Neal Conan in Washington. This week the Supreme Court decided to accept a case that goes directly to the issue of presidential power in time of war--in particular, the president's authority to try terror suspects before military tribunals at Guantanamo Bay, Cuba. Salim Ahmed Hamdan acknowledges that he used to be Osama bin Laden's driver, but he maintains that he is not a member of al-qaeda, not guilty of murder and conspiracy, and he says the military commission established to try him violates the US Constitution and international law. Two months after the September the 11th terrorist attacks, President Bush issued a military order declaring that suspected terrorists would face trial before military tribunals or commissions. The administration argued that the elusive nature of international terrorism made it impracticable to apply regular judicial processes of US civilian courts to foreign terrorists. And it was not the first time a president has resorted to extraordinary procedures. Franklin Roosevelt ordered military tribunals to try German saboteurs in this country, and Abraham Lincoln used military tribunals to try suspected supporters of the Confederacy. We'll talk about how military tribunals were used in the past, as well as the issues involved in the Hamdan case. We begin with Scott Silliman, a professor at Duke University Law School, where he specializes in military law and national security. He's a former military prosecutor. He retired in 1993 after 25 years in the Air Force. Professor Silliman joins us from the studios at the Duke University News Service in Durham, North Carolina. CONAN: When President Bush signed that military order in November 2001 that created military tribunals, he was following in the footsteps of other wartime presidents, particularly FDR. And the case in World War II is one consistently cited by the administration. Prof. SILLIMAN: It is, Neal. It's the case of the German saboteurs called the Kieran case. President Roosevelt had issued an executive order that authorized a military commission to try the eight of them. Six of them were actually hanged as a result of it. And the Supreme Court's opinion in that case has really been the foundation upon which

2 the president--president Bush--now is arguing that he has the authority to bring those at Guantanamo Bay before a military commission. CONAN: And the case in the court, what issues did it revolve around? Prof. SILLIMAN: Well, it primarily looked at whether the president had the authority to do it, Neal, and the court back in 1942 said that Congress, because it had specified in Article 15 of the Articles of War that military commissions had jurisdiction over violations and law of war, that that was a sufficient congressional grant of authority for President Roosevelt to go ahead and convene the commissions that he did. There is also an argument, Neal, that the president of the United States, even without a specific grant of authority from Congress, has power under Article 2, his commander-in-chief power, to convene these as long as Congress does not contest him. And that came in a later case by the Supreme Court in So the Hamdan case, where the Supreme Court has now agreed to review it, will give us the final answer on exactly where the authority comes from for the president to do it, whether it's got to come from Congress, whether the president can do it himself. This is an unsettled issue. CONAN: Do we need to concern ourselves with the much earlier uses of military tribunals by Presidents Lincoln and Washington, for that matter? Prof. SILLIMAN: Well, there's a rich history of the use of military commissions, Neal, going all the way back to the Revolutionary War. Major John Andre, the adjutant general for the British army in 1780, crossed the battle lines to meet with Benedict Arnold, disguised as a civilian. He was prosecuted by a military commission. As you mentioned, the Civil War--a famous case called Milligan--that was a slightly different type of military commission, Neal. That came out of the environment of martial law, and the Supreme Court said that you couldn't try an American citizen by a military commission unless the courts were not open and functioning. What we're dealing with here is a different type of military commission. It's called a war court, and it derives from the authority of a military commander to prosecute those of the enemy, and those of his own troops, for violations of the law of war. That's the only jurisdiction of these types of military commissions. CONAN: And how else do they differ from regular, well, civilian trials or criminal trials or even courts-martial?

3 Prof. SILLIMAN: Well, I think the major difference, Neal, obviously is in a military court-martial, which is what we use for the trial of our own servicemen, there is a series of judicial reviews up to an Article 1 court, a court convened by Congress of judges appointed by the president, and ultimately to the United States Supreme Court. Under the president's military order, there is no judicial review. Any commission coming out of Guantanamo Bay will be reviewed by a fourcivilian-member review panel, and then ultimately sent to Secretary Rumsfeld at the Department of Defense. There is no judicial review, and that's one of the major points of contention. CONAN: There is also the question of: What would happen if someone were found not guilty? Prof. SILLIMAN: Well, obviously, if a military commission held that someone was not guilty of a violation of law of war, they could not be punished or sentenced to a punitive prison term. Or even that... CONAN: But they might not get out of Guantanamo. Prof. SILLIMAN: You're exactly correct, because the argument that the administration is making is that, apart from the authority to prosecute someone, that we have the authority to detain folks at Guantanamo Bay for as long as the war on terrorism exists. And, of course, it could go on forever. That is the subject of some cases right now pending in the District of Columbia Circuit on what is the authority to detain and what challenges can these detainees make in our federal courts? CONAN: And we might expect that those cases, in some form or another--one of them is going to make its way up to the Supreme Court, probably before too long. Prof. SILLIMAN: I think you're exactly correct, Neal. One of the most significant aspects of the Supreme Court's grant on Monday morning of the Hamdan case is that when you look at it in the context of the Supreme Court acting in June of 2004, where it opened up the federal courts to these folks at Guantanamo Bay, that--i think this is the Supreme Court saying, `We have got to somehow define what this war on terrorism is. Is it more like traditional, World War II armed conflict, or is it more towards a rhetorical--"war on drugs"?' We don't have an answer to that. I think the court needs to give us that answer. And further, however you define this war on terrorism, what is the proper role for the courts in judicial review of the president's decision when

4 he's acting as commander in chief in a war? That's a very important question, and we're looking to the court to give us that answer, as well. CONAN: Well, joining us now is Neal Katyal. He's lead counsel for Salim Hamdan, the suspected al-qaeda terrorist whose case the Supreme Court will be hearing next year. [W]hat--could you summarize--i don't want you to give everything away, but what are your arguments going to be, broadly, in this case? Mr. KATYAL: Well, the arguments have been thus far--and I don't want to--i'll let the briefs speak for themselves once we've filed them with the Supreme Court. But the arguments we've made thus far are fairly simple: that the president, in setting up these military tribunals at Guantanamo Bay, has acted as a lawmaker, the architect of the tribunals, the person who authorizes them, the person who defines all of the offenses, the person who picks the prosecutor, picks the defense counsel, picks the judges, picks the appellate panel and then, afterwards, says, `Oh, by the way, federal courts, you have no role here. You have to defer to our interpretation of the laws and our treatment of the individual.' And there are many things that can be said for this, but I think the most fundamental is this is just un-american. This isn't what the founders envisioned when they divided government into three branches. CONAN: A legal tautology combined within the executive branch. Mr. KATYAL: That's exactly right. There's no real outside review whatsoever. For example, in a standard military trial, you have a review by the Court of Appeals for Armed Forces. These are men and women judges that are nominated by the president and confirmed by the Senate to 15-year terms. Here, Secretary Rumsfeld has picked four individuals, many of whom have already gone on record saying military trials at Guantanamo are constitutional and fair, and the Senate hasn't confirmed that. This is all an entity set up and operated by the executive branch, with no other oversight. CONAN: And your client has now been in--at Guantanamo Bay for--it's getting close to four years, isn't it? Mr. KATYAL: That's exactly right. The--he's been there for almost four years now. And I did want to correct one thing you said. I don't think he's suspected of being a terrorist; he is suspected of being Osama bin Laden's civilian driver, along with five others, but it's not at all clear

5 that he's done anything more than that. CONAN: I think that's what I said, but I'll take your correction to heart. If there are--the government says in the case of people who are dangerous--and, of course, your client says he is not one of this dangerous people, but perhaps there are others there at Guantanamo Bay who are--these procedures have to be set up and done this way basically to protect people, that there's no other way to do this. Mr. KATYAL: Right. And we're now four years after President Bush authorized these things, these trials at Guantanamo. Not a single trial has begun. CONAN: Isn't one scheduled to start next week? Mr. KATYAL: A pretrial motion is scheduled to start next week. I'm unaware of any other justice system, military or civilian, in which it takes four years to have a simple trial. And the idea that we need these systems when we already have a vibrant court-martial system, a military system, is just fanciful. And the administration has never explained why courts-martial, which work day in and day out to protect classified information and treat both sides fairly, isn't appropriate. CONAN: Well, I think one of their arguments would be that this is an enemy combatant and not a member of a recognized foreign military. Even as Osama bin Laden's civilian driver, he didn't wear a uniform, wasn't a member of any military organization. Mr. KATYAL: That is their argument. That doesn't explain why a courtmartial, which after all is set up for precisely that set of offenses-- Congress in 1916 said violations of the laws of war, people who are unlawful combatants, can be tried by courts-martial--why that isn't appropriate. CONAN: Let me--we just have a few seconds left with you, but I do want to ask this question in an from Fred Mellender(ph) in Rochester, New York: `Is the presumption of innocence applicable for suspected terrorists?' Mr. KATYAL: There is a Department of Defense directive that says that defendants are presumed innocent, but the very last line of that order says that that order creates no rights and nothing that is enforceable in any court of law, foreign or domestic. So it's not at all clear that he has any presumptions of innocence, rights or anything else. And that is what's so fundamentally problematic. And if we want to have this

6 system of military commissions, it seems to me that Congress has to be the body to authorize them, not decreed by one person on his own. CONAN: Neal Katyal is--represents Mr. Hamdan in the case of Hamdan vs. Rumsfeld, which the Supreme Court will hear next year. He joined us from his offices in Maryland. Military tribunals have been used throughout American history. Their use for foreign terror suspects is at the center of a legal challenge that the Supreme Court will be hearing not too long from now. The case involves Salim Ahmed Hamdan, who reported--was one of Osama bin Laden's civilian drivers and was captured in Afghanistan in Our guest is Scott Silliman, a Duke University law professor who specializes in military law and national security. If you'd like to join the conversation, (800) ; (800) 989-TALK. And the address is totn@npr.org. And let's talk with Teresa. Teresa's calling us from Hebron, New York-- or Hebron, Kentucky. Excuse me. TERESA: Well, I've been just very disturbed by this from the very beginning. I just--i don't understand when you hear about the reasons that we go to war throughout our history, and it seems to always be because we're fighting these totalitarian-type regimes where there's no humanitarian ethics. There's, you know, just--they can arbitrarily throw people in prison and throw away the key. And so for us to be doing that exact same thing--to me, I just don't understand how you can, say, just name-call somebody an enemy combatant, throw them into prison and not have to prove it. And why have they been allowed to sit there for so long? I just...can't believe this is something that's happening in our country. CONAN: Scott Silliman, two points there; one of which--there were procedures set up, were there not, for procedural hearings to determine whether people were or not, in fact, enemy combatants? Prof. SILLIMAN: Yes, you're right, Neal. Down at Guantanamo Bay, there is a screening procedure to determine whether someone is a combatant, an enemy combatant, and they must go through that. There is a secondary type of screening that's conducted every year to decide whether they should continue to be held down there because of intelligence value. I think, to directly answer Teresa's point, though, what sets us apart from other countries is that we are dealing with legal challenges to what's going on there. Yes, it took awhile, but the president of the United States made a determination in February of 2002 that none of these folks had any rights under the Geneva

7 Convention, and the United States Supreme Court responded in June of 2004 and said, `Yes, they have access to our courts. They have access to challenge their detention.' And now the court is asking: Does the president of the United States have the authority to prosecute them by a military commission rather than a court-martial? I look at that as a healthy environment. At least the rule of law that we subscribe to in this country is being utilized. Whatever the Supreme Court does in Neal's case, I think we need to look forward to the rule of law giving us the answers, and that's a far different situation than you find in many totalitarian regimes that I think Teresa's talking about. CONAN: And in this particular case [Hamdan], the administration argued strenuously that this case made its way, of course, up through the federal court system, and Mr.--the case was won on the district court level and then reversed on the appellate court level. The administration argued strongly that, well, they ought to go ahead with one of these military tribunals, and if somebody's found guilty, then take that case to the Supreme Court. And `No,' the Supreme Court said, `we're going to hear this now.' Prof. SILLIMAN: And that's a very significant point, Neal, because, as you say, the Supreme Court could have waited until Hamdan had gone through a commission and been convicted. As a matter of fact, that's the normal course for criminal trials reaching the Supreme Court. But at least four justices obviously decided that there was something about the military commission system that needed to be tested now in that court. And also, your listeners need to remember that the chief justice of the United States, John Roberts, cannot participate in this decision, because he was involved in a lower-court opinion in the district of Columbia. So at most we'll have eight justices sitting in judgment on this case when it's argued in the spring, but it's very significant that they took it now, rather than waiting until after Hamdan had faced a tribunal. CONAN: And getting back to Teresa's questions, these procedures that are held to determine whether somebody's an enemy combatant or not--do the suspected enemy combatants get to have representatives? Is this an adversarial proceeding? Do they get to look at all the evidence? Prof. SILLIMAN: In reality, no, Neal, they do not. They certainly do not have access to lawyers. They have a representative, but the representative also cannot get into a confidential relationship with

8 them. Judge Robertson [the U.S. District judge in Hamdan], the case you mentioned in this case, early on in November of last year, said the whole problem with Guantanamo Bay and the use of commissions is that these people have not been properly determined to be unlawful enemy combatants. And he cites the Geneva Convention and says, `Unless you can show that they are not entitled to the Geneva Conventions, they are presumed to enjoy the benefits, and under the Geneva Conventions, they can only be prosecuted by military courtsmartial, the type that we use for our own servicemen. And I think this is part of what the argument is from the defense in the Hamdan case, is that, at the very least, we should be using military courts-martial with a higher level of due process, rather than military commissions as structured by the president. Joining us now is Jack Einwechter. He's a retired Army lieutenant colonel and former military prosecutor. He's now in private practice here in Washington, DC. CONAN: Now I know you believe the president has statutory authority to use military tribunals. Where do you find it? Explain to us. Lt. Col. EINWECHTER: The president, when he issued his military order creating or directing that military commissions be held to try suspected terrorists of war crimes, cited his authority in the order itself. He said, `I have my authority based on Articles 21 and 36 of the Uniform Code of Military Justice,' which, indeed, do expressly authorize the use of military commissions for these purposes. But he also cited the authorization for use of military force that Congress passed the joint resolution authorizing the president to use all necessary and appropriate means against nations, organizations and individuals who perpetrated 911 or aided and abetted al-qaeda in those attacks. So those were his clear statutory bases for the use of military commissions. CONAN: And, as you know, there are people who disagree that the definition of force, for example, in that congressional act you spoke of, could be extended to legal procedures. Lt. Col. EINWECHTER: Well, it--yeah, some people take that position, but the Supreme Court has already resolved that question in the case of United States vs. Hamdi, decided in The Supreme Court, quoting earlier Supreme Court opinions from the World War II era, quoting them approvingly, noted that when Congress authorized the president to use all necessary force to prosecute the war against al-

9 Qaeda, that included all necessary and proper powers to carry that into successful execution. And they said that the detention of enemy combatants and the detention, trial and punishment of unlawful enemy combatants are part of those necessary powers for making war that the president has. CONAN: So, obviously, the president's--the administration's case would be stronger if Congress had passed a specific statute, but you say this one's good enough. Lt. Col. EINWECHTER: Well, Congress has--not only in the Uniform Code, but in other parts of the US code, long recognized that military commissions are the appropriate forum for the trial of war crimes, because war crimes, you know, are committed on the battlefield where you have different kinds of evidence and so forth that require a different type of tribunal. And so, you know, it's not just the Uniform Code. It's in the Military Extraterritorial Jurisdiction Act of 2000 and in other parts of the code, where Congress has clearly expected or given intent or given hints of its intent to see the president use war-crimes commissions. CONAN: Let's get another caller on the line, and this is Don. Don's calling us from Cleveland. DON (Caller): Yes. I'm concerned that this--the military tribunals-- there's too much room for abuse because of--the broad definition of terrorism allows any political opponent to be called a terrorist. And isn't there too much room for abuse? CONAN: I think the term is `enemy combatant,' Don, that you're talking about. But he's got a point, doesn't he, Jack Einwechter? Lt. Col. EINWECHTER: Well, the--i respectfully disagree with the caller because the definition of terrorism has been expressly defined, not only in the military commission orders but also in international law and, indeed, in the US statutory code. It hasn't been subject to abuse in the US, based on those definitions, and I don't expect it will be here at military commission. Also bear in mind, as Professor Silliman noted, there is judicial review of these military commissions. Indeed, the Supreme Court decision to hear the Hamdan case shows that this process does not occur without review by the judicial branch of government. CONAN: There was a review by the Supreme Court over the administration's objections.

10 Lt. Col. EINWECHTER: Well, the admin--the Supreme Court acknowle-- or resolved the question of whether there could be habeas corpus review... CONAN: Right. Lt. Col. EINWECHTER:...and they resolved that in CONAN: And it's--despite the administration's arguments, there could. Lt. Col. EINWECHTER: Yeah. The administration took the position initially that there would be no habeas corpus review of these proceedings, and they were wrong. CONAN: Yeah. And now the case--as the tribunals are set up, there is no review by civilian courts for any person who's convicted. You can't appeal to a federal court to see if the trial was held fairly, if any other procedures were wrong. He's going to be reviewed, as we were hearing earlier, up the military chain of command to the president of the United States, and not to civilian courts unless the court rules differently. Lt. Col. EINWECHTER: That's correct. The--right now, let's see--it's a review by a military review panel, which, as you know, consists of eminent jurists, including Griffin Bell...[former U.S. Circuit Court Judge and former U.S. Attorney General]...but it is not a Article 3 judiciary that will be doing the review. However, the Supreme Court has made it clear that collateral attacks on these commissions by the defendants is available under the habeas corpus statute. CONAN: Here's an . And I was--this from Diane in Traverse City, Michigan: `When the administration seeks unlimited executive powers, it claims war powers, as if the war on terror is a classic war. When it comes to the responsibilities that go with such a classic war--geneva Conventions, etc.--they want to claim that it's not a classic war. This is a new type of conflict for which those rules don't apply. I'm not sure that they can be allowed to have it both ways, and I hope the court will make this clear.' Would you agree, Jack Einwechter, that they're trying to have it both ways? Lt. Col. EINWECHTER: No, I don't agree at all, because the questioner there assumes that Geneva Conventions were intended to apply to every single combatant on the battlefield in a traditional war, and the fact is they were not so intended. The whole structure of the law of war under Geneva Conventions is intended to create incentives to

11 engage in lawful combat, so that even in a traditional war, if certain combatants were not complying with the law of war, weren't wearing uniforms and following responsible command and so forth, they would not be entitled to claim the protections of Geneva. And that's the very same analytical process that's being applied in this case. Al-Qaeda, as you know, is an organization which is, by its own fatwas [a legal opinion or ruling issued by an Islamic scholar] and other public declarations, committed to murdering innocent civilians and non combatants, so that their whole purpose of existence is to violate the law of war. And Geneva Conventions say that when that's the case, you don't get the protections of Geneva. JIM [Caller] : Thanks for taking my call. CONAN: Sure. JIM: I was listening to Mr. Einwechter just before you came back to me, and he was kind of alluding to what I was thinking about, is that, you know, the Geneva Convention was originated--what?--50 years ago or so, and it was designed for a country that was at war with another country and it kind of excluded the innocent people that were, you know, a part of the war. But now with the war on terrorism, it's not really a country at war with another country. And the enemy combatants are, you know, criminals, basically. So can we amend the Geneva Conventions or have something designed for international law? The president of the United States is acting within the realms of United States law, but that doesn't encounter international law in the... CONAN: Well, the Geneva Convention is American law as well. It was enacted as part of the [treaty] ratification process. But, Scott Silliman, let me ask you about Jim's point. Is it time to consider, well, modifying the Geneva Conventions? Prof. SILLIMAN: Well, that's an excellent point, Neal, and there is a debate as far as whether the Geneva Conventions of 1949 are antiquated. They don't consider the modern state of war or non-state actors. But until that's done, Neal, that is the law, as you point out. Our servicemen are very proud of the fact that they comply with the rule of law no matter how we characterize the conflict. That's our official Department of Defense policy. And I think if you had someone in uniform who could speak on your program about this, they would say, `The Geneva Convention is not only the law, but it's the right way

12 to conduct our activities. And also, it gives us protection from those that would seek to do us harm.' It's not that we comply because the other country complies as well and, therefore, we don't have to comply when the other side doesn't. It's the right thing to do, it's the law of international treaty obligations that we have right now and until it's changed, I think we should comply with Geneva. And I guess that's the question before the court: Can the president of the United States basically unilaterally determine that a entire group of individuals are not entitled to the protection of the Geneva Conventions? That is one of the principal points that the Supreme Court will have to take up in the Hamdan case. CONAN: And is this case essentially--we constantly see conflict between the powers of Congress and the powers of the president, struggles there, more obvious political struggles sometimes. Is this really a case of a struggle between the judicial and the executive branch? Prof. SILLIMAN: Well, I think it is in a way, Neal. I think it's the judicial branch that has in times past always given tremendous deference to the president of the United States when he's acting as commander in chief and prosecuting the war. Obviously, the courts have recognized that we're in a different environment. This is not like World War II or Vietnam. There's something different about it, and so I think they are trying to probe what the proper role of the courts should be. And we're seeing this in the Guantanamo Bay case last year, where they opened up the courts to challenge the detention, and now with this contesting military commissions. All the points that Jack raised about the authority the president claims, there are arguments that could be made for that, but it's not certain. And that's, again, what the court needs to sort out. The authorization for use of military force--the Supreme Court has said that authorized the detention. It has not yet said whether it authorizes prosecution by military commission. That's what the Hamdan case is all about. Copyright National Public Radio. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to National Public Radio. This transcript may not be reproduced in whole or in part without prior written permission. For further information, please contact NPR's Permissions Coordinator at (202)

13 The Graham Amendment (2524) to the 2006 Military Appropriations Act, enacted 15 November 2005 (S. 1041) calling for (1) reports on Combatant Status Review Tribunals and Administrative Review Boards and (2) suspension of the writ of habeas corpus for Guan tá na mo Bay Detainees. (Current status: House-Senate conference committee) SEC.. REVIEW OF STATUS OF DETAINEES. (a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees, and to the Committees on the Judiciary of the Senate and the House of Representatives, a report setting forth the procedures of the Combatant Status Review Tribunals and the noticed Administrative Review Boards in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay. (b) Procedures.--The procedures submitted to Congress pursuant to subsection (a) shall, with respect to proceedings beginning after the date of the submittal of such procedures under that subsection, ensure that-- (1) in making a determination of status of any detainee under such procedures, a Combatant Status Review Tribunal or Administrative Review Board may not consider statements derived from persons that, as determined by such Tribunal or Board, by the preponderance of the evidence, were obtained with undue coercion; and (2) the Designated Civilian Official shall be an officer of the United States Government whose appointment to office was made by the President, by and with the advice and consent of the Senate. (c) Report on Modification of Procedures.--The Secretary of Defense shall submit to the committees of Congress referred to in subsection (a) a report on any modification of the procedures submitted under subsection (a) not later than 30 days before the date on which such modifications go into effect. (d) Judicial Review of Detention of Enemy Combatants.-- (1) IN GENERAL.--Section 2241 of title 28, United States Code, is amended by adding at the end the following: ``(e) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.''. (2) CERTAIN DECISIONS.-- (A) IN GENERAL.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision of a Designated Civilian Official described in subsection (b)(2) that an alien is properly detained as an enemy combatant. (B) LIMITATION ON CLAIMS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien-- (i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

14 (ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense. (C) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the procedures and standards specified by the Secretary of Defense for Combatant Status Review Tribunals. (D) TERMINATION ON RELEASE FROM CUSTODY.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense. (3) EFFECTIVE DATE.--The amendment made by paragraph (1) shall apply to any application or other action that is pending on or after the date of the enactment of this Act. Paragraph (2) shall apply with respect to any claim regarding a decision covered by that paragraph that is pending on or after such date.

15 Analysis: Senate curbs Guantanamo detainees' legal rights November 15, 2005 from All Things Considered ROBERT SIEGEL, host: From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel. MICHELE NORRIS, host: And I'm Michele Norris. After weeks of debate, today the Senate approved a far-ranging bill laying out the US defense policy for the coming year; in the end, the vote was 98-to-0. Among the bill's provisions, one calling on the Bush administration to report to Congress every quarter on the war in Iraq and whether US goals are being met. An attempt to set a timetable for withdrawing US troops was defeated. SIEGEL: The Senate approved a provision limiting the legal rights of detainees picked up as the part of war on terror. It does not go as far as an earlier version that was being considered. But as NPR's Brian Naylor reports, opponents say it still severely limits court access for the hundreds of detainees at Guantanamo Bay. BRIAN NAYLOR reporting: The detainees provision was negotiated by a group of Senate Republicans and Democrats after South Carolina Republican Lindsey Graham won approval last week of a measure blocking nearly all court access by detainees. Graham said it was necessary to limit what he called `frivolous lawsuits' filed by the detainees. The original amendment was roundly criticized as unconstitutional, so Graham agreed to slightly modify it so detainees will have a few legal avenues open. Senator LINDSEY GRAHAM (Republican, South Carolina): We're going to have court review. An enemy combatant will not be left at Guantanamo Bay without a court looking at whether or not they were properly characterized. We're doing it in a way consistent with the law of armed conflict, in an orderly way, and I am proud that we are because this is a war of values. We can win this war, ladies and gentlemen, without sacrificing our values. And part of our values is due process, even to the worst among us.

16 NAYLOR: Graham and other supporters of limiting the detainees' legal access argued they should be treated as prisoners of war, not as criminals with constitutional rights. The provision adopted by the Senate will allow detainees to challenge their status as an enemy combatant to a federal appeals court in Washington. Detainees who have been charged and tried by the military tribunals the Pentagon has established will also be able to appeal to the DC court. Democrat Carl Levin of Michigan, who helped write the new language, says it will send a message to the Bush administration. Senator CARL LEVIN (Democrat, Michigan): We are going to have rules for the treatment of detainees, we're going to have regulations for the treatment of detainees and for their holding and for their trial and we are not going to just simply say--allow the executive branch to do whatever they want because that's the wrong message to the rest of the world and is not consisting with our Constitution and values. NAYLOR: Other Democrats said the new provision doesn't go far enough. Calling it a `modest improvement,' New Mexico Democrat Jeff Bingaman says it will mean little to most detainees being held by the US. Senator JEFF BINGAMAN (Democrat, New Mexico): There are 500 people in Guantanamo; nine of them have actually been charged with something, and none of them have been tried as yet. So for the 491 of the 500, that provision is not relevant. NAYLOR: Bingaman sponsored an amendment that would have given detainees the right to file suits under habeas corpus, which guarantees the right to appear in court and know what the charges are. That amendment was rejected. Republican Jon Kyl of Arizona, who helped write the new language, says limiting the rights of the detainees is proper. Senator JON KYL (Republican, Arizona): Prisoners of war are hardly ever charged with anything; they're simply held until the end of conflict. And they've never been given habeas corpus rights, for example, so this doesn't change anything in that regard. NAYLOR: Neither the provision setting limited legal rights for the detainees, nor another outlawing cruel, inhuman and degrading treatment of the detainees is in the House version of the defense authorization measure, so it's unclear exactly what will emerge from negotiations between the two changes. What's more, the White House promises to veto any bill that sets any sort of standards for the

17 treatment of detainees, arguing it limits the president's authority to wage war against terrorism. Brian Naylor, NPR News, the Capitol.

18 Interview: Senator Carl Levin, detainee amendment sponsor November 15, 2005 from All Things Considered MICHELE NORRIS, host: Earlier today, I spoke with Senator Carl Levin of Michigan. He's the ranking Democrat on the Senate Armed Services Committee. We just heard a clip from him in Brian Naylor's piece. In our conversation, Levin suggested that Democrats won much of what they set out to achieve, and he explained the aim of the amendment on the war in Iraq. Senator CARL LEVIN (Democrat, Michigan): The purpose is to recommend changes to the policy of the United States on Iraq. That is a major change, 'cause you have the Senate now saying that we need changes in our policies relative to Iraq. NORRIS: This is not exactly, though, what you were calling for. You had to hammer this out and make some compromises. How difficult was it for you to settle on what you actually passed? Sen. LEVIN: Well, what we, of course, introduced was an amendment which laid out two things mainly. One is that we want 2006 to be a period of transition to full Iraqi sovereignty, and in order for that to happen, that the administration needs to tell the leaders of the groups and political parties in Iraq that they need to make the compromises that are necessary to achieve a political settlement because without it, you're not going to get an insurgency defeat in Iraq. Part two, the major second part, had to do with requiring the administration to adopt a strategy. The conditions that we want to see achieved are the growth in the capability of the Iraqi military to take on independently the lead in the counterinsurgency operations and a number of other important goals that we all--we set forth. And then what we did, we also want the president-- require the president to give us, every three months, a schedule to meet those conditions and if he can't meet those conditions, to give us the reason why he cannot meet the schedule which we require him to give us for achieving the goals and to create the conditions which are so important for our departure. NORRIS: I'd like to move on, if I could, to the treatment of terror suspects and detainees at Guantanamo. The Democrats here, I guess you could say, won here on getting Guantanamo detainees the

19 right to appeal to actions of the military tribunals to the federal courts. Critics say that this doesn't go far enough. They say that these prisoners still exist in a zone where laws that normally govern society just don't apply. What else could have been done here? Sen. LEVIN: Well, what could have been done is we could have preserved in some way the right of habeas corpus under certain narrow circumstances, which is what Senator Bingaman tried to do. And I supported that, and I wish that we could have done that. But last week, the Bingaman approach was defeated 49-to-41 in the Senate, and so today what we did was to improve the language significantly that was adopted last week. That language was far too broad, and it is not in keeping with our Constitution or our values. People who are convicted of crimes should have an opportunity to appeal to a court. We restored that opportunity to go to a court today in the adoption of the Graham-Levin amendment. NORRIS: Now all this has to be worked out in negotiations with the House on the defense bill. With either of these measures pass? Sen. LEVIN: I believe so 'cause Senator Warner favors both of them, and he will be the chairman probably of the conference, I believe, this year. But in any event, he's the chairman of the Senate Armed Services Committee. I, as the ranking member, clearly believe in them, and we have a lot of support on the committee in the Senate to sustain the very strong votes that we got for these measures, and so I am optimistic that they will survive in conference.