Friday, June 30, 2006


"As they are not uniformed, the Geneva Convention does not apply to them. And, as they are not US citizens, they have no rights as afforded by the Constitution."

Two abbreviations commonly used to save time and effort typing: Gitmo and SCOTUS. Gitmo is a shortening of the Cuban base the US military holds called Guantanamo Bay. SCOTUS stands for Supreme Court of the United States. Two disparate topics, but recently they converged in the Supreme Court's decision Hamdan v Rumsfeld.

The United States is holding more than 400 prisoners of war in Guantanamo Bay, most of them captured in Afghanistan and many from Iraq, in the war on terror. One of the prisoners, a former driver for Osama Bin Laden, sued to avoid a military tribunal, seeking ordinary legal work in the United States justice system.
The U.S. Supreme Court ruled that President George W. Bush lacks authority to try Guantanamo Bay inmates before military tribunals, a blow to the administration's anti-terrorism strategy that scales back presidential wartime powers.

The justices, voting 5-3, said Congress hadn't expressly authorized the military commissions. The justices also said the structure and procedures of the tribunals violate both the Geneva Conventions and the Uniform Code of Military Justice.

This is the first time in history a prisoner of war has been declared a criminal under a country's legal system - an oddity to say the least, as they were captured in a war in a foreign country. Chief Justice John Roberts excluded himself since he'd served on an appeals court panel that had examined it. The ruling was 5-3, with Justices Thomas, Alito, and Scalia dissenting.

Right Wing News carried the story, and John Hawkins had this commentary:

I don't agree with this decision at all because I believe Commander-in-Chief has the Constitutional authority to deal with foreign prisoners, held outside of the US, as he sees fit, without Congressional oversight. That being said, from what I'm seeing, this may not be the huge setback it's being portrayed as by the press and the Democrats.

For one thing, as Jonathan Adler over at Bench Memos pointed out,

"(T)he Court apparently reaffirmed the executive's authority to detain enemy combatants for the duration of hostilities."

So we can't put them in front of a military tribunal, but we can still hold them indefinitely.

Commenters had a discussion about the legal decision and what it means:

John at Powerline write this about it:

Scalia's dissent accuses the majority of ignoring the plain language of Congress's enactment providing that:

[N]o 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 detained by the Department of Defense at Guantanamo Bay, Cuba.

Scalia further argues that the majority substitutes its own judgment as to "military necessity" for that of the executive branch.

I've only had time to scan the opinions briefly and may have further comments later. For now, the one apparent implication of Hamdan is that hundreds of Guantanamo detainees will become participants in the American judicial system. If they thought Gitmo has been a strange and disorienting experience, they haven't seen anything yet.
John, Scott and Paul at Powerline I have found are usually spot on with their commentary on law as they are all Lawyers themselves so it will be interesting to see what they say once they have had more time to read more of the decision.
-by The_Doyle

Hell, I'd even support a tough Tribunal law from Hillary. I don't care who's tough on terror, as long as they're really committed to protecting this country.
-by Arbiter

We should close Gitmo and send these people into other prisons in other parts of the world. Then set up a World Court that would like to see these prisoners indicted.
This would take the pressure off the US Government so they don't get all the blame for having this type of jail and it would show that the rest of the world wants to jail terrorists too.
Seriously. If we can get a coalition of courts on this matter it would be a good thing.
-by Left_Turn

>Then set up a World Court that would like to see
>these prisoners indicted.
Sure. Let's get Iran, Syria, Saudi Arabia and Yemen to preside over the court, while we're at it. You Libs and your ideas of a World Court... who the hell are you kidding? The only people a World Court would go after is the US and Israel.
-by CavalierX

Couple questions:

1. Out of honest curiosity, where is it stated that the C.I.C. [Commander in Chief] has authority to detain people indefinitely? Is that in the Constitution or derived from case law?

2. What's the worry about having these people face normal criminal trials? Most of them were caught red-handed, and I think the general feeling among conservatives (sorry for the blanket statement) is that everyone in Gitmo is guilty. So, why not just move em through the legal system, sentence em, and then have them locked away in a much more sound and above question legal matter?
-by Rastus

>where is it stated that the C.I.C. has authority
>to detain people indefinitely? Is that in the
>Constitution or derived from case law?
Nowhere. That's the problem. These people do not fall under any category of prisoner ever devised. Therefore, as the Chief Executive, tasked with protecting American lives, the President detained them until their eventual fate can be determined.
-by CavalierX

"These are not criminals caught stealing a TV, they are enemy soldiers taken from battlefields."
They're not even enemy soldiers. A soldier wears a uniform and does not use women and children as human shields. The prisoners in Gitmo are enemy combatants (non-uniformed fighters), or to put it more bluntly, terrorists.

As they are not uniformed, the Geneva Convention does not apply to them. And, as they are not US citizens, they have no rights as afforded by the Constitution.

"What's the worry about having these people face normal criminal trials?"
They are not US citizens, nor even US residents, and are thus not subject to our Constitution or criminal laws. They are enemy combatants captured on a battlefield where they surrounded themselves with innocents or "un-attackable" zones (mosques), severely risking the lives of our soldiers.

If we can't try them, we should at least hold them until the war is over in the country they came from.
-by Clint

Seems the Justice Stevens is worried that by trying these savages we will violate the Geneva Conventions. Fine. Follow the Geneva Convention to the letter. All non - uniformed combatants caught on the battlefield should be shot on the spot as spies. Take them back to the hellhole they came from and shoot them in the brain. Problem solved.

Also, the Geneva Convention states that unlawful comatants using citizens as shields, not wearing uniforms, or using hospitals or mosques as shelter may be shot on the spot. Shoot all of them in the head. Problem solved.

The United States should not take one more prisoner in the War on Terror. Head shots all the way around.
-by fugazi

2. What's the worry about having these people face normal criminal trials? Most of them were caught red-handed, and I think the general feeling among conservatives (sorry for the blanket statement) is that everyone in Gitmo is guilty. So, why not just move em through the legal system, sentence em, and then have them locked away in a much more sound and above question legal matter?
Because THIS. IS. A. WAR. This isn't a riot or bank robbery, these people aren't innocent until proven guilty. These murderous vermin are not covered by the Geneva Conventions; in past wars they would have been shot without benefit of even a military trial. (Look up what we did to Nazis discovered out of uniform behind our lines or on our soil if you have doubts.)

You act as if the legal system's judgements are foregone conclusions. They aren't. Many of these terrorist bastards will walk if put on trial in a criminal court, and not because they're not guilty. I mean, let's examine what would have happened if we'd captured Zarqawi... could we prove that was him in the video sawing off Michael Berg's head? Can you imagine the media circus? Who benefits from this besides the terrorists? Look at the freakshow the Moussaoui trial was and tell me that's what you want for all of these people being held at Gitmo.

Rastus, I'm sorry, but this is the sort of thing that convinces me that your side is not serious about fighting this war, or even treating it as a war. Do you even know how to be ruthless? I see this sort of thing time and again from your side. I was literally arguing with liberals on september 12th who wanted the US to "arrest" bin Laden and put him on trial instead of treating the WTC attacks as what they were, acts of war.

Look, if you're concerned about torture at Gitmo, I've got a compromise: shoot the detainees in the head. Y'see? Both sides win. No more "torture" of them (so you can feel good), and no more breating by them (so *I* can).
-by EvilOtto

What I don't understand is why we must follow the Geneva Convention. Under the G.C. regulations, BOTH sides must abide by the agreement in order for it to be binding.

Al-Qaeda certainly doesn't.
-by Kingfisher

"Rastus, I'm sorry, but this is the sort of thing that convinces me that your side is not serious about fighting this war, or even treating it as a war."
I have no problem with striking back at terrorists. I'm not advocating that we do nothing and just wait to be attacked again. Anyone who's in Gitmo and is guilty of terrorist acts needs to be put away for life, if not executed.

To be honest, the problem I have with Gitmo is that whole "you will be held until the war on terror ends, but that war has not been officially declared, and we have no idea what would even CONSTITUTE victory or when that might happen". Now, if you believe that everyone there is guilty and you trust the administration to not abuse this power, I can see where you would be fine with the whole situation...but to me, Gitmo gets uncomfortably close to a Tower Of London/Man In The Iron Mask situation: anyone could be plugged in there and held mute for the rest of their life. Call me a bleeding heart liberal but I'm uncomfortable giving that kind of power to one branch of government, without oversight.

I guess I need to get my head around the fact that habeas corpus does not extend to non-U.S. citizens, but the whole situation just doesn't sit right. It's an unusual situation, to say the least...kind of a catch-22 really, as they can't be put before a tribunal and they're not subject to U.S. courts...
-by Rastus

This is the most important Supreme Court ruling in my life time, even more important the Bush vs. Gore.

I think that the majority opinion raised some important points, but for the most part I'm utterly flabbergasted.

As best as I can tell the SCOTUS ruled that the USA has treaty obligations with respect to Al Queda - one that no US Congress would have willingly entered into - and that uninformed Al Queda agents who themselves do not adhere to the Geneva conventions and publicly scorn it are to be afforded the full rights of POW's under article #3 of the Geneva convention. This an astounding ruling, and an astounding and utterly unique and anti-historical interpretation of the Geneva convention. I cannot possible imagine that the Geneva conventions would have been ratified by the Senate had that interpretation been forced on to them prior to ratification. Heck, the major powers would have never even introduced the Geneva conventions with such language since to be frank, the major powers constructed the Geneva convention with language designed to ensure that they would have a free hand in dealing with insurgent groups in thier extended colonial empires. They would have never written the Geneva conventions in such a way that they could be used against them, and any ordinary reading of the Geneva conventions reads that its heavily skewed toward giving rights , protections, and gaurantees to the big wealthy European powers and none to anyone else.

But, the single most frustrating thing about the ruling is that it suggests absolutely no remedy to the situation. Stevens majority opinion even explicitly states that the enemy combatants - pardon me, we can't even refer to them as that anymore - the "prisoners of war" are to be held for the duration of the conflict. How long is that going to be???? Is holding them without trial somehow more humane than sending them up before military tribunals to hear thier case????

Some have suggested that this will send the cases through the ordinary criminal justice system. I'd like to see US court hold that it has jurisdiction over non-US citizen captured on the battlefield by the military in a foreign country. It isn't going to happen and there is nothing in the majority opinion suggesting that the majority expects it to happen. What they expect to happen now, I'm not entirely sure. Again, no remedy seems to be provided for.
-by Celebrim

Here's a question to all the guys wanting these clowns in Gitmo released. In every other war, when we captured enemy combatants (and these were soldiers wearing uniforms not terrorists masquerading as civilians to get close to kill our guys) we put them in camps until the conflict was over or when we could do a prisoner swap with the other side. Now we could swap the guys in gitmo to the other side, oh that's right, they KILL all the guys they capture from our side. Hmmmm. Slight problem there. Also, if you read the Geneva conventions, it also says that once a side throws out the rules set down by the Geneva convention, they are no longer protected by same. The murder of civilians and the torture (true torture not the wanna be cry baby stuff that the left is yelling that we are doing) and murder of captured troops is a direct violation of those rules. Sorry but the scum we are fighting do not get the luxury of being held under those rules. To be honest we have been way more hospitable to those we have captured than they deserve and infinitly more hospitable than our own troops have been treated. Just an FYI.
-by Sabian

"Also, if you read the Geneva conventions, it also says that once a side throws out the rules set down by the Geneva convention, they are no longer protected by same."
If you read the SCOTUS ruling, they've elimenated that as an option. Under the SCOTUS ruling, the majority admitted that Al Queda was not a signatory party, but mandated that as long as there exist another signatory party to the treaty our obligation to that treaty party requires us to extend most of the protections of the treaty to non-treaty prisoners and even violators of the treaty. For these purposes, most importantly that means things like immunity to criminal prosecution and the requirement to hold the prisoners in conditions of respect and dignity (no interogation at all, much less nothing that could be called torture) for the duration of the conflict.
"Innocent until proven guilty should stand. If these guys are so obviously guilty, their incarceration should stand in court."
I don't know why you would think that.

Think about the various protections the court affords to the accused. You probably watched CSI or Law and Order, so you ought to know a little about what can go wrong in the collection of evidence. Now think about the fact that in criminal court the standard of guilt is 'beyond a reasonable doubt'.

No consider the fact that these men weren't arrested. They were captured by soldiers who weren't taking great pains to photograph the surroundings and collect evidence in accordance with standard police proceedings. All the evidence that might actually exist is some soldier's word that someone whose face he couldn't see was shooting at him, and when they entered the building where the fire was coming from they found an empty rifle in one room, some spent shells, and this guy in the other - and no, they cannot present the rifle and shells as evidence because they didn't think to put on gloves and put them in plastic bags and wouldn't have thought it necessary in the middle of a battle anyway. Didn't you learn anything at all from the OJ Simpson trial? If the evidence is 'botched' there isn't going to be a conviction no matter how suggestive the evidence is. It doesn't take much of a defence attorney to get charges like that thrown out. Now consider the fact that the platoon of soldiers in question is now in Iraq, and subject to a subpoena from the courts to appear to testify. How well do you think that would work out? Can Al Queda summon combat units from the field to appear in trial? How well is a soldier - with no training on how to testify in court - going to stand up under cross examination by a lawyer determined to needle him into an angry outburst?

No, I don't see how you can imagine that because these guys are obviously guilty that the charges would stand up in a criminal court.
-by Celebrim

Best solution I have heard yet on the whole detainee issue (from a poster at

Let me take this opportunity to say, also, that Congress dropped the ball on this whole detainee business from the get-go. There should have been far-reaching legislation propsed by about November '01 contemplating a kind of alternative legal system for terror suspects -- an amalgam, as it were, between the civilian and military courts. The idea would be to protect intelligence assets in a very messy and unprecedented war, while still allowing for the penetration of the principle of due process. Congress created the Military Code; why not a code for terror trials of this sort?
-by Idealogue

Since the Geneva Convention is now the over riding authority, does this mean that if our Soldiers execute terrorists who are not wearing a uniform on the battlefield as called for by the Convention, they are free and clear of any legal punishment? "Sir, I was wrong, we did not have any LIVING prisoners from that last raid". International law, you know.
-by Reaganfan

Out of honest curiosity, where is it stated that the [CinC] has authority to detain people indefinitely?
It's implied in the Geneva Conventions, rastus: The GC requires that POWs be returned at the completion of hostilities. One infers from that that illegal combattants may be held at least that long. The GC doesn't address holding illegal combattants; they apparently did not expect anyone to be squeamish enough to take them prisoner instead of summarily executing them.

It does address the issue of doubt, though:

PI,Art 5: The present Convention shall apply to [legal combattants] from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are legal combattants], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So, if we're in doubt then they should be treated as POWs. This means that, under the GC, they are specifically not subject to criminal (civilian) trial by the detaining power (us) for the duration of the conflict unless they commit a crime against civilians (while on parole, or while trying to escape, for example). Note that POWs "shall be released and repatriated without delay after the cessation of active hostilities."

Some may argue that the Gitmoans are civilians and thus protected under a different GC (on Civilians vice POWs), buyt that one specifically states:

"[if] an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. " [underline added]
-by Grognard

Sorry to keep posting, but I'm absolutely fuming about this one.

Let me make this one brief. I do not understand why it is that civil rights activists are celebrating a decision that strikes down bringing these men to trial and far from repudiating indefinate detention without trial instead suggests it as a remedy.

Can anyone explain that to me? I mean, beyond the obvious.
-by Celebrim

Here's a better question:

Why is it that the terrorists embody everything that liberals purport to hate (fundamentalism, theocratic rule, opression of women and minorities, warmongering, etc.) and they keep quiet, yet Bush does none of these things and they accuse him day in and day out of doing so?
-by Hotspur


You are mistaken that there is no remedy..the court simply ruled that the president didnt have the power to set up the clearly states in its majority opinion that Congress has the power to set up these they do based on the constitution..the president simply needs to go to Congress to get the authority..those on the right should not be up in arms about this..the SCOTUS simply stated that the Executive branch doesnt have the power to set up these courts..and it doesnt..Congress clearly does however.
-by cthns

Today's ruling is a disaster, but hardly an unexpected one. Stevens was the only justice left over from the March sitting who hadn't written a majority opinion yet, and oral arguments went very poorly for the government. Kennedy takes a relatively slim view of executive power, anyway, and the four liberals could hardly be expected to have come down any differently.

Celebrim aptly points out above that the court simply says, "NO!", without providing any kind of a remedy. The court's jurisprudence here is a total mess: They ruled in Hamdi that the AUMF did authorize the President to detain IECs but that some due process must be provided, and now they strike down the only attempt at due process yet given. All of this despite the fact that Congress had already passed 1) The AUMF, triggering all executive powers fundamental to waging war, and 2) the Detainee Treatment Act, which very clearly states that the Supreme Court does not have jurisdiction to hear this case. The hoops that Stevens and co. jump through here would make even a Clinton apologist blush. All that's missing is a contention over the meaning of the word "is".

The portion regarding the Geneva conventions is even more sickening. We are essentially now saying that the protections of the Conventions apply to not only those who have never ratified it and are not covered under its plain language, but also those who's entire status as a combatant violates the Conventions themselves. The only reassuring factor one takes away from this is that Kennedy, doing his normal waffle-your-way-through-each-decision dance, doesn't join this part of the opinion in full, although he agrees that the military commission violates the Conventions and the UCMJ.

All that having been said, Congress can rectify the immediate effects of today's decision by simply passing a law which explicitly authorizes (apparently it has to be super-duper explicit from now on) these sorts of Commissions. But the long-term effects of these are disastrous. It had been a pretty respectable term with no major outrages up until today. Conservatives should remember that there's still a lot of work to be done; switching Roberts and Alito for Rehnquist and O'Connor helps, but it doesn't shift the court all that dramatically from where it was last year. Which is to say: A state of confusion.
-by Maledicta

I think people need to step back and seriously consider whether the Supreme Court actually has the power and authority to make the ruling they did. SCOTUS does not have the power to rule on anything whatsoever they desire, only areas given them by the US constitution. They can't rule on whether movies ought to be filmed in stereo, they can't rule on Venezuela's port authority laws, they can't decide that POWs are protected by the Geneva Convention or not. That's simply not their area of power that the Constitution limited them to.

If they make a ruling, that's all very fine, other than wasting our time and money, but it holds no more power than if I made a "ruling" on the topic.
-by Christopher Taylor

>"And yes Mr Taylor the SCOTUS does have that
>authority. They can rukle on anything brought in
>front of them."

No, see the portion of Article III I posted above. You make it very plain that you have absolutely no clue what you're talking about. Even more plain than usual.


As if the last tidbit wasn't enough, you then prove that you haven't even the slightest clue what Stevens is saying. For starters, this should be obvious anyway, since he joined in Scalia's dissent in Hamdi, which was entirely based on the premise that citizenship is what draws the distinction between whether or not someone may be detained as an IEC. Since Hamdan is not a citizen, Stevens clearly believes he can be detained. Secondly, Hamdi is controlling precedent, and the court is not being asked either to overrule it or to decide the constitutionality of the IEC designation; that's already been done. But even if you weren't familiar with the fact that this had been decided in Hamdi two years ago, here is Stevens today saying it once again:

"It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm."
-by Maledicta

Protocol I was rejected by the Senate & Reagan in 1987
While I recommend that the Senate grant advice and consent to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.'’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.

In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.
Sounds very familiar doesn't it? The Kelo-5 insisted the Geneva Conventions includes this very 'Protocol I' which was specifically rejected by the President and Congress 19 years ago.

So... did not the Kelo-5 quite simply lie, and in doing so:
"...undermine humanitarian law and endanger civilians in war."

"...give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology."

"...grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war."

Act to "endanger civilians among whom terrorists and other irregulars attempt to conceal themselves."

Grant "these groups legitimacy as international actors."

Support "the politicization of that law by groups that employ terrorist practices."
Apparently tiring of ignoring our protections guaranteed by the limits of the US Constitution with the inclusion of references to international law, the Kelo-5 have moved on to ignoring the protections of international law.
-by DANEgerus
*UPDATE: Added comment by DANEgerous about the rejected update to the Geneva Conventions that would have defined terrorists and "freedom fighters" as regular soldiers, an important reminder.
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1 comment:

Anna Venger said...

Yet another bad decision by the Supremes, in my opinion. We cannot treat prisoners of war like American citizens, putting each one on trial. They have no Constitutional protections because they are not U.S. citizens. They didn't even hold to the rules of warfare that might have given them protection under the Geneva Convention.

Regardless, I dare say that all in all the U.S. treats its enemies better than these guys do over there. We don't behead people. We don't torture (contrary to media assertions). Yeah, there were some bad eggs who engaged in humiliation and that was wrong. But we do punish our own. Just a world of difference and what the SCOTUS is doing getting involved in this is beyond me. Now I guess the prisoners stay in limbo indefinately.