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High Court to Hear Challenge to Military Tribunals

MELISSA BLOCK, host:

Today the Pentagon said it's charging five terror suspects detained at Guantanamo Bay, Cuba, and planning to try them for various offenses before a military tribunal. The announcement came on the same day the Supreme Court agreed to hear a challenge to the Bush administration's system of trying suspected foreign terrorists on war crimes charges. That challenge was brought by several prisoners captured in Afghanistan in 2001 and held at Guantanamo ever since. NPR's Nina Totenberg reports.

NINA TOTENBERG reporting:

Today's announcement from the Supreme Court is unwelcome news for the Bush administration, which had asked the justices to wait until after the military trial of Salim Ahmed Hamdan before deciding whether to hear his challenge. Instead the Supreme Court will go forward, and the Hamdan trial, as well as a handful of others, will remain on hold for now.

Concern has been growing about conditions at Guantanamo Bay, where an estimated 500 detainees are being held. The military confirms at least 36 suicide attempts and, over the last few months, 131 prisoners on a hunger strike at various times, with some of the prisoners being force fed. The case accepted by the Supreme Court today, though, involved not detention but the system for trying accused war criminals. The Bush administration has set up a system under which it establishes the rules for the trials, appoints the presiding judges and the military jurors. Then when the trial is complete, it is the president, not the courts, who has the last word on whether a trial is fair and punishment, including the death penalty, is justified.

In 2004, this system was invalidated by a federal district court judge in Washington, who ruled that it was unconstitutional and a violation of the Geneva Conventions. Last July, though, a federal appeals court panel that included then-Judge John Roberts reinstated the system, ruling that the Geneva Conventions are not enforceable by the courts and that the president, under his war-making powers, has the right to set up such military tribunals. Two years ago the Supreme Court, with Justice Sandra Day O'Connor writing the key opinion, said that the president's war-making power is not a blank check to do with as he pleases when it comes to the rights of the nation's citizens.

But the people at issue in this case are not US citizens, but foreigners. And the question, in essence, is whether the president can, on his own and without a formal declaration of war, design rules for military trials, appoint the judges and juries for the trials and be the final arbiter of whether the verdict is justified. Lawyers for Mr. Hamdan contend that without congressional action, the president lacks the constitutional authority to do as he has and that the prisoners must be tried under the Uniform Code of Military Justice. The Bush administration counters that when Congress authorized the president to act in the wake of 9/11, that was enough to justify whatever measures the president deems appropriate.

Now the Supreme Court has agreed to hear the case this spring. And because the new chief justice was involved in the case at the lower court level, he is not participating. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.