Supreme Court Rejects Guantanamo War Crimes Trials
In 5-3 Decision, Justices Rebuke Bush's Anti-Terror Policy

By William Branigin
Washington Post Staff Writer
Thursday, June 29, 2006; 10:44 AM

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions are unconstitutional.

In a 5-3 decision, the court said the trials were not authorized under U.S. law or the Geneva Conventions. Justice John Paul Stevens wrote the opinion in the case, called Hamdan v. Rumsfeld. Chief Justice John G. Roberts Jr. recused himself from the case.

Salim Ahmed Hamdan is seen in this undated file photo. (AP Photo courtesy of Prof. Neal Katyal) (AP)

The ruling, which overturned a federal appeals court decision in which Roberts had participated, represented a defeat for President Bush, who had ordered military trials for detainees at the Guantanamo Bay naval base. About 450 detainees captured in the war on terrorism are currently held at the U.S. naval base in Cuba.

The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary's power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by President Bush to try terrorism suspects.

The case raised core constitutional principles of separation of powers as well as fundamental issues of individual rights. Specifically, the questions concerned:

¿ The power of Congress and the executive to strip the federal courts and the Supreme Court of jurisdiction.

¿ The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one's accusers and the right to judicial appeal.

¿ The applicability of international treaties -- specifically the Geneva Conventions on the treatment of prisoners of war -- to the government's treatment of those it deems "enemy combatants."

Hamdan was captured by Afghan militiamen in late November 2001 after the radical Islamic Taliban movement was driven from power in Afghanistan by U.S.-backed Afghan forces. He was subsequently turned over to U.S. authorities, who sent him to the U.S. detention facility at the Guantanamo Bay naval base in Cuba in 2002.

He acknowledged that he had worked as a bodyguard and driver for Osama bin Laden, whom he met in Afghanistan in 1996. But he denied having any role in the Sept. 11, 2001, terrorist attacks carried out by bin Laden's al-Qaeda network.

On Nov. 13, 2001 -- the day the Afghan capital, Kabul, fell to U.S.-backed forces after five years of Taliban rule -- President Bush issued Military Order No. 1 declaring that military commissions would try foreign terrorist suspects for alleged war crimes and sentence them to punishments including death. The administration argued that the commissions were authorized by laws on military justice, by a congressional resolution passed on Sept. 14, 2001, and by the powers vested in the president as commander in chief under the U.S. Constitution.

Hamdan later became one of the first 10 detainees at Guantanamo chosen to face military trials. He was charged in July 2004 with conspiracy to commit terrorism and war crimes while serving as a weapons courier and driver for bin Laden and other top al-Qaeda members. If convicted, he faced a maximum sentence of life in prison.

Military prosecutors alleged that Hamdan delivered arms, ammunition and other supplies to al-Qaeda fighters, picked up weapons at Taliban warehouses and drove or accompanied bin Laden to appearances at al-Qaeda training camps and other events. During these appearances, bin Laden would give speeches encouraging followers to carry out suicide attacks and engage in holy war against Americans, the prosecution alleged.

Specifically, prosecutors charged, Hamdan served as a driver in a convoy in which bin Laden fled potential U.S. reprisal attacks in Afghanistan at the time of the al-Qaeda bombings of two U.S. embassies in East Africa in 1998 and the attacks on the World Trade Center and Pentagon on Sept. 11, 2001. In addition, he allegedly received weapons training at al-Qaeda's Farouq training camp in southern Afghanistan on various occasions between 1996 and 2001.

In April 2004, Hamdan, represented by Georgetown University law professor Neal K. Katyal, , filed a petition for habeas corpus, challenging the legality of his detention. While the petition was pending before the U.S. District Court in Washington, the government formally filed the conspiracy charges against him and set in motion his trial before a military commission.

In August 2004, Hamdan appeared in a makeshift courtroom at Guantanamo as the U.S. military formally opened its first trial of an alleged al-Qaeda collaborator. His appearance, after nearly three years in detention, marked the first time that the United States had used military commissions to try war crimes suspects since World War II.

Hamdan's military attorney promptly attacked the military commission process, calling it unfair, and challenged the qualifications of the presiding officer and several other members.

In November 2004, the U.S. District Court granted Hamdan's habeas petition in part, ordering a halt to the military commission. The court ruled that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was actually an "unlawful combatant" and not a prisoner of war under the 1949 Geneva Convention.

Hamdan maintained that instead of facing a military commission under a presidential order, he should be tried by a court martial under the U.S. Code of Military Justice in accordance with the 1949 convention. That would afford him the same rights accorded to U.S. military personnel tried by courts martial, rather than the restrictions he would encounter in a military commission. Human rights groups have charged that the commissions' rules do not meet international standards for fair trials.

The Bush administration appealed the District Court's ruling, and the Defense Department meanwhile gave Hamdan and other Guantanamo detainees hearings before a Combatant Status Review Tribunal. In Hamdan's case, the tribunal affirmed that he was an enemy combatant requiring continued detention. It said he was "either a member of or affiliated with al-Qaeda."

In July 2005, the U.S. Court of Appeals for the District of Columbia Circuit overturned the District Court's decision, breathing new life into the military commissions. The appeals court said the Geneva Convention does not apply to al-Qaeda members and that the military commissions were authorized by Congress.

The Supreme Court agreed in November last year to hear Hamdan's appeal of the ruling. Chief Justice Roberts, one of the judges who voted against Hamdan's appeal when he served on the appeals court, recused himself from the case.

Congress entered the fray in December, passing the Detainee Treatment Act, which stripped federal courts of jurisdiction over Guantanamo detainees' habeas corpus petitions that were "pending on or after" the date of the law's enactment. The act also provided an alternative military process for reviewing the enemy combatant status of detainees and designated the D.C. Circuit appeals court as the sole venue for appeals of military commission verdicts.

Arguing that the act implicitly accepts the legitimacy of the military commissions and that it disallows Hamdan's habeas petition, the administration asked the Supreme Court in January to dismiss the case. Administration lawyers said the proper time for Hamdan to file a constitutional challenge was after his trial before a military commission.

Names of the Detained in Guantanamo Bay, Cuba
Until March 3rd, the Pentagon had declined to identify the detainees at Guantanamo Bay Military Prison, most of whom were captured in Afghanistan during and after the 2001 war there. As a result of an Associated Press Freedom of Information Act request and lawsuit, the Department of Defense released the unredacted transcripts of Combatant Status Review Tribunals and Administrative Review Boards.

Special Report
Guantanamo Prison

The Archived List
From 2002 to May 2006, Washington Post researchers compiled the names and countries of origin of detainees in Guantanamo from unofficial, public sources: news accounts, legal documents (such as habeas corpus petitions and from the CSRT tribunals), interviews with attorneys and relatives, and information from detainee support sites on the Web. The Post printed only names that it had verified from a single reputable source or multiple sources. Some names were transliterated from Arabic or had alternative spellings. The collection was the largest list of names made public at that point, encompassing: more than 550.

Many names came from two Web sites that monitor the status of Guantanamo detainees: the Arabic-language Alasra and the Britain-based CagePrisoners. The two sites, which advocate the release of the detainees, have published lists of names, photographs and documents provided by families. Alasra is registered to an unknown individual in Saudi Arabia, and CagePrisoners is registered to a group of Muslim computer programmers based in Britain.

The Archived List
The Pentagon List
On May 15, 2006, the Pentagon released to the Associated Press the first comprehensive list of everyone who has been held at Guantanamo Bay, more than four years after it opened the detention center. Two-hundred and one of the names had not been disclosed by the Defense Department before. That more complete register follows below. Post researchers will continue to monitor the names on this new list to verify the information previously reported and will provide updates as they are available.

See Also
Detainees Charged by Military Commissions
Detainees Classifed as "No Longer Enemy Combatants" (NLECs)
Related Stories
Courted as Spies, Held as Combatants (Post, April 2, 2006)
In Guantanamo Bay Documents, Prisoners Plead for Release (Post, March 5, 2006)
Holding Cell In War on Terror (Post, May 2, 2004)
Guantanamo Bay Detainees by Nationality
Afghanistan | Algeria | Australia | Azerbaijan | Bahrain | Bangladesh | Belgium | Canada | Chad | China | Denmark | Egypt | Ethiopia | France | Iran | Iraq | Jordan | Kazakhstan | Kuwait | Lebanon | Libya | Maldives | Mauritania | Morocco | Pakistan | Palestine | Qatar | Russia | Saudi Arabia | Somalia | Spain | Sudan | Sweden | Syria | Tajikistan | Tunisia | Turkey | Turkmenistan | Uganda | United Arab Emirates | United Kingdom | Uzbekistan | West Bank | Yemen
Afghanistan
Name Nationality Released Age (approximate) Birthplace NLEC
Abasin, Said Afghanistan Yes 24 Khan o Khel, Afghanistan
Abulwance, Yamatolah Afghanistan Yes 29 Kandahar, Afghanistan
Achezkai, Haji Mohammed Khan Afghanistan Yes 29 Kabul, Afghanistan
Adam Gul, Ataullah Afghanistan Yes 24 Khushawa, Afghanistan
Ahmad, Abdul Afghanistan No 52 Roy E Sang, Afghanistan
Ahmad, Noor Afghanistan Yes 33 Moqur, Afghanistan
Ahmed, Feda


Status Review Tribunal Transcript Afghanistan Yes 29 Kandahar, Afghanistan Yes
Ahmed, Shabir Afghanistan No 35 Badakhshan, Afghanistan
Akhbar, Mohammad Afghanistan Yes 50 Ghowr Band, Afghanistan
Akhtar Mohammed, Rostum Afghanistan Yes 26 Musa Qala, Afghanistan
Al Ansari, Faris Muslim Afghanistan No 22 Mukala, Yemen
Al Kunduzi, Umar Abdullah Afghanistan No 27 Konduz, Afghanistan
Alikhan, Mahngur Afghanistan Yes 48 Gomal, Pakistan
Alikozi, Amanullah Afghanistan Yes 31 Deh Raud, Afghanistan
Aliza, Abdul Rauf Afghanistan No 25 Azan Village, Afghanistan
Alizai, Nematullah Sahib-Khan Afghanistan Yes 48 Azan, Afghanistan
Allah, Noor Afghanistan Yes 35 Uruzgan, Afghanistan
Aman Afghanistan No 49 Malik Village Kardez, Afghanistan
Andarr, Abdul Al-Hameed Mohammed Afghanistan Yes 39 Zormat, Afghanistan
Asekzai, Azizullah Afghanistan Yes 26 Karez, Afghanistan
Aslaam, Noor Afghanistan Yes 24 Warna, Pakistan
Azimullah Afghanistan No 24 North Waziristan, Pakistan
Badr, Badruzzan Afghanistan Yes 36 Jalalabad, Afghanistan
Bagi, Abdul Afghanistan No 34 Kandahar, Afghanistan
Baqi, Abdul Afghanistan Yes 64 Tark Itmak, Afghanistan
Barak, Fnu Afghanistan Yes 34 Surgay, Afghanistan
Barakzai, Jon Mohammad Afghanistan Yes 39 Sarwan Qala, Afghanistan
Baridad Afghanistan No 53 Helmand, Afghanistan
Bismaullah, Fnu 2 Afghanistan Yes Unknown Baghran, Afghanistan
Bismillah Afghanistan Yes 54 Oruzgan, Afghanistan
Bismillah 2, Fnu Afghanistan Yes 38 Pirwan Siagird, Afghanistan
Bismullah, Haji Afghanistan No 27 Musa Qala, Afghanistan
Bullar, Mohi Afghanistan No 25 Urezgon, Afghanistan
Chaman, Gul Afghanistan No 43 Osman, Hazro, Logar, Afghanistan
Dad, Khudai Afghanistan No 49 Tarak, Afghanistan
Daoud, Mohamman Afghanistan No 27 Emam Saheb, Afghanistan
Darwaish, Naibullah


Status Review Tribunal Transcript Afghanistan Yes 39 Jalazai, Afghanistan Yes
Din, Juma Afghanistan No 33 Alinghan, Afghanistan
Edmondada, Abdullah Afghanistan Yes 46 Kandahar, Afghanistan
Ehsanullah Afghanistan Yes 33 Farah, Afghanistan
Ehssanullah Afghanistan Yes 29 Sarwan Qala, Afghanistan
Esmatulla, Fnu Afghanistan No 29 Dekundie, Afghanistan
Esmhatulla, Qari Afghanistan No 22 Ramsha, Pakistan
Far Huddine, Bar Afghanistan Yes 29 Tora Oba, Afghanistan
Farhad, Din Mohammed Afghanistan Yes 30 Konduz, Afghanistan
Farouq, Mohammed Nayim Afghanistan Yes 46 Zatoon Kahil, Afghanistan
Fazl, Mullah Mohammad Afghanistan No 39 Charchno, Afghanistan
Ghafaar, Abdul Afghanistan No 48 Kandahar, Afghanistan
Ghafour, Abdul Afghanistan No 44 Pattia Province, Afghanistan
Ghafour, Shai Jahn Afghanistan Yes 37 Karabagh, Afghanistan
Ghalib, Haji Afghanistan No 43 Nangarhar, Afghanistan
Ghani, Abdul Afghanistan No 34 Afghanistan
Ghani, Abdul 2 Afghanistan No 23 Kandahar, Afghanistan
Ghani, Nabu Abdul Afghanistan Yes 54 Shishawa, Afghanistan
Ghofoor, Abdullah Afghanistan Yes 35 Keshai, Afghanistan
Ghul, Nathi Afghanistan Yes 26 Afghanistan
Ghul, Wazir Zalim Afghanistan Yes 29 Khowst, Afghanistan
Ghuladkhan Afghanistan Yes 26 Jalalabad, Afghanistan
Gul, Awal Afghanistan No 44 Sawati Ghundi
Gul, Dawd Afghanistan No 26 Zedana, Afghanistan
Gul, Janat


Status Review Tribunal Transcript Afghanistan No 33 Sarpolad, Afghanistan Yes
Gul, Khi Ali Afghanistan No 43 Khowst, Afghanistan
Gul, Mohammad Afghanistan Yes 44 Zamikhel, Afghanistan
Gul Ghaman, Nasser Afghanistan No 26 Manikhel, Afghanistan
Hafiz, Abdul Afghanistan No 45 Afghanistan
Hafizullah, Fnu Afghanistan No 32 Afghanistan
Hamdullah, Fnu Afghanistan Yes 32 Kushki Nakod, Afghanistan
Hamidullah Afghanistan No 43 Kabul, Afghanistan
Hamidullah, Fnu Afghanistan Yes 26 Konduz, Afghanistan
Hanan, Abdul Afghanistan Yes 48 Ghazni, Afghanistan
Hasan, Mirwais Afghanistan Yes 26 Afghanistan
Hashim, Mohammed Afghanistan No 30 Qandahar, Afghanistan
Hekmat, Abdullah Afghanistan No 34 Akhcha, Afghanistan
Hezbullah, Fnu Afghanistan Yes 25 Miran Shah, Pakistan
Insanullah, Fnu Afghanistan Yes 26 Afghanistan
Ismail, Mohammed Afghanistan Yes 22 Dourbeni Village, Afghanistan
Jalil, Haji


Status Review Tribunal Transcript Afghanistan Yes 36 Bayanzai, Gereshk District, Afghanistan Yes
Jan, Said Amir Afghanistan No 26 Koozbia, Afghanistan
Jan, Saida Afghanistan No Unknown Konar, Afghanistan
Jawad, Mohamed Afghanistan No 21 Miran Shah, Pakistan
Kabel, Mohamed Afghanistan Yes 43 Parvan Province, Afghanistan
Kadir, Khandan Afghanistan No 37 Safra-andarikhail, Afghanistan
Kahm, Abdul Rahman Abdullah Mohamed Juma Afghanistan No 37 Fara, Afghanistan
Kakar, Mohammed Raz-Mohammed Afghanistan Yes 29 Khod, Afghanistan
Kamin, Mohammed Afghanistan No 28 Unknown
Kandahari, Kako Afghanistan No 36 Ghulayie, Afghanistan
Karim, Abdul Afghanistan Yes 24 Sangin, Afghanistan
Karim, Bostan Afghanistan No 36 Khowst, Afghanistan
Khail, Hafizullah Shabaz Afghanistan No 60 Paktia, Afghanistan
Khairkhwa, Khirullah Said Wali Afghanistan No 39 Kandahar, Afghanistan
Khan, Abdullah Afghanistan No 50 Ghawchak, Afghanistan
Khan, Alif Afghanistan Yes 38 Khowst, Afghanistan
Khan, Anwar Afghanistan No 39 Konar, Afghanistan
Khan, Ezat Afghanistan Yes 40 Sei, Afghanistan
Khan, Hazrat Sangin Afghanistan Yes 29 Lowal, Afghanistan
Khan, Hukumra


Status Review Tribunal Transcript Afghanistan Yes 32 Chenna Village, Afghanistan Yes
Khan, Janan Taus Afghanistan Yes 25 Kandahar, Afghanistan
Khan, Juma Afghanistan Yes 34 Kona Charbolak, Afghanistan
Khan, Kakai Afghanistan No 35 Gardez, Afghanistan
Khan, Mohabet Afghanistan No 34 Alipoor, Pakistan
Khan, Mohammed Afghanistan Yes 24 Shah Toria, Afghanistan
Khan, Osman Afghanistan Yes 54 Bermel, Afghanistan
Khan, Shardar Afghanistan No 24 Gardez, Afghanistan
Khan, Shawali Afghanistan No 43 Kandahar, Afghanistan
Khan, Swar Afghanistan No 36 Khowst, Afghanistan
Khan, khan, haji Afghanistan No 71 Kabul, Afghanistan
Khirullah Akah Afghanistan Yes Unknown Afghanistan
Kuchi, Haji Niam Afghanistan Yes 66 Logar, Afghanistan
Layar, Sabit Afghanistan Yes 25 Sawali Khot, Afghanistan
Lnu, Amanullah Afghanistan Yes 43 Unknown
Lnu, Sharifullah Afghanistan No 26 Jalalabad, Afghanistan
Malang, Nassir Afghanistan Yes 34 Kandahar, Afghanistan
Matin, Abdul Afghanistan No 41 Jowzjan, Afghanistan
Melma, Sabar Lal Afghanistan No 44 Darya-e-Pech, Afghanistan
Mirmuhammad, Sharghulab Afghanistan Yes 34 Brayiam, Afghanistan
Mohammad, Akhtar Afghanistan Yes Unknown Unknown
Mohammad, Akhtiar Afghanistan No 53 Kundarkheil, Afghanistan
Mohammadullah Afghanistan Yes 32 Manu, Afghanistan
Mohammed, Akhtar Afghanistan No 36 Barogai, Afghanistan
Mohammed, Alif Afghanistan No 60 Helmand, Afghanistan
Mohammed, Haji Faiz Afghanistan Yes Unknown Rasham Village, Afghanistan
Mohammed, Haji Wali Afghanistan No 40 Baghlan, Afghanistan
Mohammed, Mirza Afghanistan Yes 42 Gorband, Afghanistan
Mohammed, Rasool Shahwali Zair Mohammed


Status Review Tribunal Transcript Afghanistan No 28 Lowara, Afghanistan Yes
Mohammed, Said Afghanistan No 29 Afghanistan
Mohammed, Sultan Afghanistan Yes 30 Qal eh, Afghanistan
Mohammed, Taj Afghanistan No 25 Afghanistan
Mohammed, Wali Afghanistan Yes 42 Kandahar, Afghanistan
Muhammed, Peta Afghanistan Yes 21 Gardez, Afghanistan
Muhibullah, Fnu Afghanistan No 24 Shah Wali Koot, Afghanistan
Mujahid Afghanistan No 35 Paktia, Afghanistan
Muslimdost, Abdul Rahim


Status Review Tribunal Transcript Afghanistan Yes 46 Nangarhar, Afghanistan Yes
Must, Yarass Ali Afghanistan Yes 34 Unknown
Naserullah, Fnu Afghanistan No 26 Helmand, Afghanistan
Nasim, Mohammad


Status Review Tribunal Transcript Afghanistan Yes 33 Shahidan, Afghanistan Yes
Nasim, Mohammed Afghanistan No 44 Pai Warzai, Afghanistan
Nasim, Mohammed Afghanistan No 26 Megan, Afghanistan
Nasir, Abdul Afghanistan No 25 Kabul, Afghanistan
Nasir, Allah Afghanistan No 59 Zalahka, Afghanistan
Nasrat Yar, Hiztullah Afghanistan No 36 Surubee, Afghanistan
Nasrullah, Fnu Afghanistan No 27 Oruzgan, Afghanistan
Noor, Habib


Status Review Tribunal Transcript Afghanistan Yes 38 Mangal Village, Afghanistan Yes
Noorallah, Haji Afghanistan No 35 Andkhoy, Afghanistan
Noorani, Abdul Rahman Afghanistan Yes 33 Afghanistan
Noori, Mullah Norullah Afghanistan No 39 Shajoie, Afghanistan
Obaidullah Afghanistan No 26 Khowst, Afghanistan
Omari, Mohammad Nabi Afghanistan No 38 Khowst, Afghanistan
Peerzai, Qari Hasan Ulla Afghanistan No 29 Baghran, Afghanistan
Quasam, Mohammed Afghanistan No 29 Bamian, Afghanistan
Qudus, Abdul Afghanistan Yes 18 Nadali, Afghanistan
Rahim, Abdul Afghanistan Yes 31 Sharshar, Afghanistan
Rahim, Mohamed Afghanistan No Unknown Ghazni, Afghanistan
Rahmad, Nisar Afghanistan Yes 26 Afghanistan
Rahman, Abdul Afghanistan No 30 Haji Baras, Afghanistan
Rahman, Fizaulla Afghanistan No 28 Sancharak, Afghanistan
Rahman, Habib Afghanistan No 24 Mansaira, Pakistan
Rahman, Mahbub Afghanistan No 21 Khowst, Afghanistan
Rahman, Murtazah Abdul Afghanistan Yes 30 Nadali, Afghanistan
Rahman, Shed Abdur


Status Review Tribunal Transcript Afghanistan Yes 41 Pishin, Pakistan Yes
Rahmatullah, Fnu Afghanistan Yes 25 Helmand, Afghanistan
Rasool, Habib Afghanistan No 51 Khowst, Afghanistan
Rasoul, Abdullah Gulam Afghanistan No 33 Hilmand, Afghanistan
Raz, Mohammed Afghanistan Yes 37 Unknown
Razak, Abdul Afghanistan No 48 Kandahar, Afghanistan
Razaq, Abdul Afghanistan Yes 35 Tashkent, Uzbekistan
Razzak, Abdul Afghanistan No 67 Kandahar, Afghanistan
Razzaq, Abdul Afghanistan No 42 Kadahal, Afghanistan
Ruhani, Gholam Afghanistan No 31 Ghazni, Afghanistan
Sadik, Mahmud Afghanistan Yes 54 Unknown
Sadiq, Mohammed Afghanistan Yes 93 Unknown
Salaam, Abdul Afghanistan No 31 Birmal, Afghanistan
Samad, Abdul Afghanistan Yes 24 Zormat, Afghanistan
Sangaryar, Rahmatullah Afghanistan No 38 Oruzgan, Afghanistan
Sarajuddin, Abib Afghanistan No 64 Zamikhel, Afghanistan
Sargidene, Mohammed Afghanistan Yes 29 Archasan, Afghanistan
Sarwar, Kari Mohammed Afghanistan Yes 28 Ashakay Village, Afghanistan
Sayed, Abdul Hadi Muhamed Rasul Afghanistan Yes 33 Helmand, Afghanistan
Shah, Ali Afghanistan No 47 Gardez, Afghanistan
Shah, Nahir Afghanistan No 33 Kaplsa, Afghanistan
Shah, Qalandar


Status Review Tribunal Transcript Afghanistan Yes 33 Kandahar, Afghanistan Yes
Shah, Said Mohammed Alim Afghanistan Yes 28 Helmand, Afghanistan
Shah, Solaiman Dur Mohammed Afghanistan Yes 29 Panjwaee, Afghanistan
Shah, Zakim Afghanistan Yes 23 Tora Oba, Afghanistan
Shaheen Shahwali Zair Mohammed, Naqeebyllah


Status Review Tribunal Transcript Afghanistan Yes 30 Khowst, Afghanistan Yes
Shahzada, Haji


Status Review Tribunal Transcript Afghanistan Yes 47 Belanday, Afghanistan Yes
Sharbat Afghanistan No 33 Khairo Village, Afghanistan
Sharif, Mohammed Afghanistan No 30 Kalina, Afghanistan
Sohail, Mohammed Mustafa Afghanistan No 25 Jalalabad, Afghanistan
Tahir, Mohammed Afghanistan Yes 31 Mirkhan Khail, Afghanistan
Torjan, Shaibjan Afghanistan No 29 Kandahar, Afghanistan
Tukhi, Aminullah Baryalai Afghanistan Yes 34 Heart, Afghanistan
Ullah, Amin Afghanistan No 50 Chogha, Afghanistan
Ullah, Asad Afghanistan Yes 18 Paktia, Afghanistan
Ullah, Faiz Afghanistan No 50 Bamian, Afghanistan
Ullah, Naqib Afghanistan Yes 18 Zargary Camp, Pakistan
Ullah, Noor Habib Afghanistan Yes 26 Jalalabad, Afghanistan
Ullah, Shams Afghanistan No 20 Gulnoom Khan, Afghanistan
Wahab, Abdul Afghanistan No 38 Afghanistan
Waheed, Abdul Afghanistan Yes 34 Musa Qala, Afghanistan
Wakil, Haji Sahib Rohullah Afghanistan No 44 Jalalabad, Afghanistan
Wali, Badshah Afghanistan Yes 29 Khowst, Afghanistan
Walijan, Neyaz Afghanistan Yes 44 Khowst, Afghanistan
Wasiq, Abdul Haq Afghanistan No 35 Ghazni, Afghanistan
Wazir, Abdullah Afghanistan No 27 Sheikh Amir, Afghanistan
Wazir, Haji Mohammed Afghanistan Yes 63 Lashkargh City, Afghanistan
Wazir, Padsha


Status Review Tribunal Transcript Afghanistan Yes 34 Kundai, Afghanistan Yes
Yacoub, Mohammed Afghanistan No 30 Khwazak, Afghanistan
Yakubi Afghanistan No 40 Gardiz, Afghanistan
Yaqub, Mohammed Yusif Afghanistan Yes Unknown Nimbrooz, Afghanistan
Yar, Kushky Afghanistan No 43 Lejay Village, Afghanistan
Yousef, Mohammed Haji Afghanistan Yes 39 Bermal, Afghanistan
Zaeef, Abdul Salam Afghanistan No 39 Kandahar, Afghanistan
Zahir, Abdul


Formal Charges Afghanistan No 34 Hasarak, Afghanistan
Zahir, Mohommod Afghanistan No 53 Ghazni, Afghanistan
Zahor, Abdul Afghanistan No 42 Charikar, Afghanistan
Zaman, Gul


Status Review Tribunal Transcript Afghanistan No 35 Khowst, Afghanistan Yes
Zaman, Khan Afghanistan Yes 44 Zani Khel, Afghanistan
Zumarikourt, Aziz Khan Ali Khan Afghanistan Yes 44 Mushkail, Afghanistan

Algeria
Name Nationality Released Age (approximate) Birthplace NLEC
Abdenour, Sameur Algeria No 33 Algiers, Algeria
Ait Idr, Mustafa Algeria No 36 Sidimhamed, Algeria
Al Hajj, Boudella Algeria No 41 Laghouat, Algeria
Al Qadir, Mohammed Abd Al Algeria No 30 Taot, Algeria
Ameur, Mammar Algeria No 48 L'aghouat, Algeria
Ameziane, Djamel Saiid Ali Algeria No 39 Al Jesera, Algeria
Barhoumi, Sufyian


Formal Charges Algeria No 33 Algiers, Algeria
Bel Bacha, Ahmed Bin Saleh Algeria No 37 Algiers, Algeria
Belkacem, Bensayah Algeria No 44 Wargala, Algeria
Bin Hamlili, Adil Hadi Al Jazairi Algeria No 31 Oram, Algeria
Boucetta, Fethi


Status Review Tribunal Transcript Algeria No 43 Mostaganem, Egypt Yes
Boumediene, Lakhdar Algeria No 40 Ain Soltgane Saeda, Algeria
Farhi, Saiid Algeria No 45 Churchelle, Algeria
Feghoul, Abdulli Algeria No 46 Tiaret, Algeria
Hadjarab, Nabil Algeria No 27 Aentaya, Algeria
Hamlily, Mustafa Ahmed Algeria No 47 Bashare, Algeria
Houari, Abdul Raham Algeria No 26 Algiers, Algeria
Husseini, Abdallah Algeria No 48 Algiers, Algeria
Huwari, Soufian Abar Algeria No 36 Ouran, Algeria
Lahmar, Sabir Mahfouz Algeria No 37 Constantine, Algeria
Naji, Aziz Abdul Algeria No 31 Batna, Algeria
Nechle, Mohammed Algeria No 38 Laghouat, Algeria
Said, Hassan Mujamma Rabai Algeria No 30 Oum el Bouaghi, Algeria
Sayab, Mutij Sadiz Ahmad Algeria No 30 Unknown
Zumiri, Hassan Algeria No 39 Algiers, Algeria

Australia
Name Nationality Released Age (approximate) Birthplace NLEC
Habib, Mamdouh Ibrahim Ahmed Australia Yes 51 Alexandria, Egypt
Hicks, David Matthew


Formal Charges Australia No 35 Adelaide, Australia

Azerbaijan
Name Nationality Released Age (approximate) Birthplace NLEC
Tsiradzho, Poolad T Azerbaijan No 31 Baku, Azerbaijan

Bahrain
Name Nationality Released Age (approximate) Birthplace NLEC
Al Balushi, Salah Abdul Rasul Ali Abdul Rahman Bahrain No 25 Muharraq, Bahrain
Al Dosari, Juma Mohammed Abdul Latif Bahrain No 33 Khabar, Saudi Arabia
Al Khalifa, Sheikh Salman Ebrahim Mohamed Ali Bahrain Yes 27 Rifah, Bahrain
Al Murbati, Issa Ali Abdullah Bahrain No 41 Manama, Bahrain
Al Noaimi, Abdullah Bahrain Yes 24 Manama, Bahrain
Al Wadi, Adil Kamil Abdullah Bahrain Yes 42 Muharak, Bahrain

Bangladesh
Name Nationality Released Age (approximate) Birthplace NLEC
Hashem, Mubarak Hussain Bin Abul Bangladesh No 28 Baria, Bangladesh

Belgium
Name Nationality Released Age (approximate) Birthplace NLEC
Sen, Mesut Belgium Yes 26 Brussels, Belgium
Zemmori, Mosa Zi Belgium Yes 28 Wilryk, Belgium

Canada
Name Nationality Released Age (approximate) Birthplace NLEC
Khadr, Abdul Canada Yes 25 Unknown
Khadr, Omar Ahmed


Formal Charges Canada No 20 Toronto, Canada

Chad
Name Nationality Released Age (approximate) Birthplace NLEC
Al Qarani, Muhammed Hamid Chad No 20 Medina, Saudi Arabia

China
Name Nationality Released Age (approximate) Birthplace NLEC
Abbas, Yusef China No 26 Aksu, China
Abdul Rahman, Abdul Ghappar China No 33 Kucha, China
Abdulahat, Emam China No 29 Konashahar, China
Abdulghupur, Hajiakbar China No 32 Ghulja, China
Abdulhehim, Adel


Status Review Tribunal Transcript China Yes 32 Ghulja, China Yes
Abdulqadirakhun, Abdullah China No 27 Xinjian, China
Abdurehim, Dawut China No 32 Ghulja, China
Adil, Ahmed


Status Review Tribunal Transcript China Yes 33 Kashkar, China Yes
Anvar, Hassan China No 32 Urumchi, China
Ayub, Haji Mohammed China Yes 22 Toqquztash, China Yes
Basit, Akhdar Qasem


Status Review Tribunal Transcript China Yes 33 Ghulja, China Yes
Khalik, Saidullah China No 29 Ghulja, China
Mahmud, Arkin China No 42 Ghulja, China
Mahnut, Bahtiyar China No 30 Ghulja, China
Mamut, Abdul Helil China No 29 Kashkar, China
Mohamed, Ahmed China No 28 Artush, China
Mohammed, Nag China No 31 Khulga, China
Noori, Adel China No 27 Xing Xiang, China
Parhat, Hozaifa China No 35 Ghulja, China
Qassim, Abu Bakker China Yes 37 Ghulja, China Yes
Razak, Abdul China No Unknown Atush, China
Tourson, Ahmad China No 35 Xinjiang, China

Denmark
Name Nationality Released Age (approximate) Birthplace NLEC
Abderrahmane, Slimane Hadj Denmark Yes 33 Roskilde, Denmark

Egypt
Name Nationality Released Age (approximate) Birthplace NLEC
Al Mishad, Sharif Fati Ali Egypt No 30 Shabin El Kom, Egypt
Al Sawah, Tariq Mahmoud Ahmed Egypt No 49 Alexandria, Egypt
Al-Waleeli, Fael Roda Egypt Yes 40 Mansura, Egypt
Algazzar, Adel Fattough Ali Egypt No 41 Cairo, Egypt
Allaithy, Sami Abdul Aziz Salim


Status Review Tribunal Transcript Egypt Yes 50 Shubrakass, Egypt Yes
Salim, Ala Abdel Maqsud Muhammad Egypt No 39 Al-Bajoor, Egypt Yes

Ethiopia
Name Nationality Released Age (approximate) Birthplace NLEC
Binyam, Mohammed Ahmed


Formal Charges Ethiopia No 28 Addis Ababa, Ethiopia

France
Name Nationality Released Age (approximate) Birthplace NLEC
Achab Kanouni, Imad France Yes 29 Casablanco, Morocco
Benchellali, Mourad France Yes 25 Venissieu, France
Khalid, Ridouane France Yes 39 Villenoble, France
Mustafa, Khaled Ben France Yes 34 Lyons, France
Patel, Ali Mustafa


Status Review Tribunal Transcript France Yes 44 Medina, Saudi Arabia Yes
Sassi, Nizar France Yes 27 Lyons, France
Yadel, Brahim France Yes 35 Aubervilliers, France

Iran
Name Nationality Released Age (approximate) Birthplace NLEC
Bamari, Bakhtiar Iran Yes 25 Damon, Iran
Kurd, Mohamed Anwar Iran Yes 27 Zahedan, Iran
Muhammed, Abdul Majid Iran No 27 Zahedan, Iran

Iraq
Name Nationality Released Age (approximate) Birthplace NLEC
Abdul Said, Hassan Iraq No 30 Basra, Iraq
Al Karim, Arkan Mohammad Ghafil Iraq No 30 Dekar, Iraq
Al Naely, Abbas Habid Rumi Iraq No 38 Al Amin, Iraq
Al Rawi, Bisher Amin Khalil Iraq No 37 Baghdad, Iraq
Al Tamimi, Haydar Jabbar Hafez Iraq No 33 Kute, Iraq
Mohhamed, Sohab Mahud Iraq No 25 Piboss, Iraq
Sadkhan, Jawad Jabber Iraq No 39 Diwaniya, Iraq
Tayeea, Ali Abdul Motalib Awayd Hassan Al Iraq No Unknown Baghdad, Iraq

Jordan
Name Nationality Released Age (approximate) Birthplace NLEC
Abdul Hamid, Hassan Khalil Mohamoud Jordan Yes 45 Amman, Jordan
Abdul Wahab Al Asmr, Khalid Mahomoud


Status Review Tribunal Transcript Jordan Yes 43 Irbid, Jordan Yes
Ahmad, Osam Abdul Rahan Jordan Yes 30 Al-Zarqa, Jordan
Al Amrani, Ayman Mohammad Silman Jordan Yes 28 Muthalthal Ardha, Jordan
Al Husayn, Zaid Muhamamd Sa'Ad Jordan No 32 Amman, Jordan
Elbanna, Abdul Latif Jordan No 54 Jericho, Turkey
Kabir, Usama Hassan Ahmed Abu Jordan No 36 Al Rusayfa, Jordan
Suleyman, Ahmed Hassan Jamil Jordan No 45 Amman, Jordan

Kazakhstan
Name Nationality Released Age (approximate) Birthplace NLEC
Abahanov, Yakub Kazakhstan No Unknown Semeya, Kazakhstan
Kerimbakiev, Abdulrahim Kazakhstan No 23 Semei, Kazakhstan
Magrupov, Abdullah Tohtasinovich Kazakhstan No 23 Semeya, Kazakhstan

Kuwait
Name Nationality Released Age (approximate) Birthplace NLEC
Al Ajmi, Abdallah Saleh Ali Kuwait Yes 28 Almadi, Kuwait
Al Awda, Fouzi Khalid Abdullah Kuwait No 29 Kuwait City, Kuwait
Al Azmi, Sa Ad Madi Sa Ad Kuwait Yes 27 Doha, Kuwait
Al Dehani, Mohammad Finaytal Kuwait Yes 41 Kuwait City, Kuwait
Al Kandari, Faiz Mohammed Ahmed Kuwait No 31 Kuwait City, Kuwait
Al Mutayri, Khalid Abdullah Mishal Thamer Kuwait Yes 31 Kuwait City, Kuwait
Al Rabia, Fouad Mahoud Hasan Kuwait No 47 Kuwait City, Kuwait
Al Shamari, Abd Al Aziz Sayir Kuwait Yes 33 Al Fahahil, Kuwait
Al-Zamel, 'Adel Zamel 'Abd Al-Mahsen Kuwait Yes 43 Kuwait City, Kuwait
Amin, Omar Rajab Kuwait No 39 Kuwait City, Kuwait
Amtiri, Nasser Najiri Kuwait No 29 Mahwa, Kuwait
Kamel, Abdullah Kamel Abudallah Kuwait No 33 Hawalli, Kuwait

Lebanon
Name Nationality Released Age (approximate) Birthplace NLEC
Diyab, Jihad Ahmed Mujstafa Lebanon No 35 Jedeta, Lebanon

Libya
Name Nationality Released Age (approximate) Birthplace NLEC
Abdelrahan, Abdelrazak Ali Libya No Unknown Unknown
Abdelrahman, Abdelrazak Ali Libya No 36 Al Jilat, Libya
Abu Al Qusin, Abdul Rauf Omar Mohammed Libya No 41 Tripoli, Libya
Abu Bakr, Omar Khalifa Mohammed Libya No 34 Al Bayda, Libya
Al Futuri, Muhammad Abd Allah Mansur Libya No 38 Al Rimi, Yemen
Al Ghazzawi, Abdel Hamid Ibn Abdussalem Ibn Mifte Libya No 44 Tripoli, Libya
Ali Bakush, Ismael Ali Faraj Libya No 38 Al-Khumas, Libya
Bin Qumu, Abu Sufian Ibrahim Ahmed Hamuda Libya No 47 Darna, Libya
Deghayes, Omar Amer Libya No 37 Tripoli, Libya
Ghereby, Salem Abdul Salem Libya No 45 Zletan, Saudi Arabia
Sultan, Ashraf Salim Abd Al Salam Libya No 35 Jedda, Saudi Arabia
Zeidan, Ibrahim Mahdy Achmed Libya No 30 Sorman, Libya

Maldives
Name Nationality Released Age (approximate) Birthplace NLEC
Fauzee, Ibrahim Maldives Yes 28 Thulhaadhoo, Maldives Yes

Mauritania
Name Nationality Released Age (approximate) Birthplace NLEC
Aziz, Ahmed Abdel Mauritania Yes 36 Atar, Mauritania
Mohammad, Mohammad Lameen Sidi Mauritania No 25 Zandeer, Niger
Slahi, Mohamedou Ould Mauritania No 36 Rosso, Mauritania

Morocco
Name Nationality Released Age (approximate) Birthplace NLEC
Ahmad, Abdullah Tabarak Morocco Yes 51 Casablanca, Morocco
Al Shakouri, Radwan Morocco Yes 34 Asafi, Morocco
Awzar, Mohamed Ibrahim Morocco Yes 27 Koreebja, Morocco
Ben Moujan, Muhammad Morocco No 25 Dar Bida, Morocco
Boujaadia, Said Morocco No 38 Casablanca, Morocco
Dergoul, Tarek Morocco Yes 29 Mile End, United Kingdom
Hassan, Muhammad Hussein Ali Morocco No 40 Selwan, Morocco
Ikassrin, Laacin Morocco No 34 Targist, Morocco
Lahassimi, Najib Mohammad Morocco Yes 28 Sattat, Morocco
Mizouz, Mohammed Morocco Yes 33 Casablanca, Morocco
Nasir, Abdul Latif Morocco No 41 Casablanca, Morocco
Rashidi, Ahmed Morocco No 40 Tangier, Morocco
Shakaran, Ibrahim Bin Morocco Yes 27 Casablanca, Morocco
Shokuri, Yunis Abdurrahman Morocco No 38 Asafi, Morocco
Souleimani Laalmai, Mohamad Morocco Yes 30 Casablanca, Morocco

Pakistan
Name Nationality Released Age (approximate) Birthplace NLEC
Abas, Mohammad Pakistan Yes Unknown Village 426, Pakistan
Abu Rahman, Abdul Rabbani Abd Al Rahim Pakistan No 37 Unknown
Ahmad, Bashir Pakistan Yes 30 Chah Kote Wala, Pakistan
Ahmad, Sultan Pakistan Yes 22 Sargodha, Pakistan
Ahmed, Ali Pakistan Yes 24 Baluchistan, Pakistan
Ahmed, Saghir Pakistan Yes 31 Sargodha, Pakistan
Ahmed, Sar Faraz Pakistan Yes 40 Lahore, Pakistan
Akbar, Mohammed Pakistan Yes 33 Helmand, Afghanistan
Al-Deen, Jamal Muhammad Pakistan / Bangladesh Yes 39 Feni, Bangladesh
Ali, Said Saim Pakistan Yes 29 Karachi, Pakistan
Alikhel, Sha Mohammed Pakistan Yes 25 Swaat, Pakistan
Amin, Aminulla Pakistan Yes Unknown Chaman, Pakistan
Ansar, Mohammed Pakistan Yes 25 Jalan Makhdoom, Pakistan
Anwar, Mohammed Pakistan Yes 26 Pakistan
Ashraf, Mohammed Pakistan Yes 26 Kalaswala, Pakistan
Ayub, Haseeb Pakistan Yes 32 Budho, Pakistan
Ayubi, Salahodin Pakistan Yes 32 Lahore, Pakistan
Fazaldad, Fnu Pakistan No 24 Atian, Pakistan
Fiyatullah, Kay Pakistan Yes 23 Narmasperlay, Pakistan
Hafez, Khalil Rahman Pakistan No 22 Punjab, Pakistan
Hudin, Salah Pakistan / Afghanistan Yes 24 Jalalabad, Afghanistan
Ijaz, Mohammed Pakistan Yes Unknown Blonoval, Pakistan
Ilyas, Mohammad Pakistan Yes 64 Taman, Pakistan
Iqbal, Faik Pakistan Yes 24 Karachi, Pakistan
Iqbal, Zafar Pakistan Yes 23 Sambal, Pakistan
Irfan, Mohammed Pakistan Yes 24 Bahalwapur, Pakistan
Irfan, Mohammed Pakistan Yes 27 Punjab, Pakistan
Ishaq, Mohammed Pakistan Yes 23 Panjgoor, Pakistan
Khan, Bacha Pakistan Yes 34 Bajawor, Pakistan
Khan, Ejaz Ahmad Pakistan Yes 31 Mardan, Pakistan
Khan, Hamood Ullah Pakistan Yes 35 Hyberabad, Pakistan
Khan, Isa Pakistan Yes 31 Bannu, Pakistan
Khan, Mohammad Kashef Pakistan Yes 27 Karachi, Pakistan
Khan, Muhammed Ijaz Pakistan No 30 Kafilgarh, Pakistan
Khan, Tariq Pakistan Yes 28 Village 426, Pakistan
Khan, Tila Mohammed Pakistan Yes 26 Wazierstan, Pakistan
Madni, Hafez Qari Mohamed Saad Iqbal Pakistan No 29 Pakistan
Manzu, Hafice Leqeat Pakistan Yes 29 Kanaval District, Pakistan
Mehmood, Majid Pakistan Yes 27 Bahawal District, Pakistan
Mohammad, Tarik Pakistan Yes 34 Kohat, Pakistan
Mohammed, Ali Pakistan Yes 54 Rahamibad, Pakistan
Mohhamed, Hanif Pakistan Yes 24 Adda Shenal, Pakistan
Mowla, Abdul Pakistan Yes 37 Malakan District, Pakistan
Nafeesi, Abdul Satar Pakistan Yes 35 Miachinu, Pakistan
Naseer, Munir Bin Pakistan Yes 28 Karachi, Pakistan
Noman, Mohammed Pakistan Yes 29 Pakistan
Omar, Mohammed Pakistan Yes 20 Larkana, Pakistan
Paracha, Saifullah Pakistan No 59 Mongwal, Pakistan
Rabbani, Mohammed Ahmad Ghulam Pakistan No 36 Medina, Saudi Arabia
Rafiq, Mohammed Pakistan No 26 Kabal, Pakistan
Raza, Abid Pakistan No 25 Digary Sindh, Pakistan
Raza, Mohammed Arshad Pakistan Yes 26 Bahawal Nagar, Pakistan
Raziq, Abdul Pakistan Yes 34 Kot Marakand, Pakistan
Sadiqi, Abdul Halim Pakistan No 38 Pakistan
Saeed, Hafiz Ihsan Pakistan Yes 28 Lahore, Pakistan
Safollah, Ghaser Zaban Pakistan Yes 27 Madanchak, Pakistan
Sanghir, Mohammad Pakistan Yes 54 Kohestan, Afghanistan
Sattar, Abdul Pakistan No 25 Bumb, Pakistan
Sayed, Mohammed Pakistan Yes 33 Abbotabad, Pakistan
Sultan, Zahid Pakistan Yes 25 Abdabot, Pakistan
Tariq, Mohammed Pakistan Yes 33 Alladand Dehry, Pakistan
Ul Haq, Israr Pakistan Yes 26 Topi, Pakistan
Ul Shah, Zia Pakistan No 30 Karachi, Pakistan
Ullah, Asad Pakistan Yes 25 Swahbi, Pakistan
Urayman, Sajin Pakistan Yes 22 Gujaranwala, Pakistan
Usman, Shabidzada Pakistan Yes 24 Malal, Pakistan
Wali, Jihan Pakistan Yes 39 Diir, Pakistan

Palestine
Name Nationality Released Age (approximate) Birthplace NLEC
Al Aasmi, Assem Matruq Mohammad Palestine / Saudi Arabia No 26 Khan Younis, Israel

Qatar
Name Nationality Released Age (approximate) Birthplace NLEC
Al Marri, Jaralla Saleh Mohammed Kahla Qatar No 33 Doha, Qatar

Russia
Name Nationality Released Age (approximate) Birthplace NLEC
Akhmyarov, Rustam Russia Yes 27 Chelyabinsk, Russia
Gumarov, Ravil Shafeyavich Russia Yes 44 Gushva, Russia
Hassam, Zakirjan


Status Review Tribunal Transcript Russia No 32 Saratov, Russia Yes
Ishmurat, Timur Ravilich Russia Yes 31 Azenakai, Russia
Kafkas, Abdullah D. Russia Yes 22 Prohladsk, Russia
Mingazov, Ravil Russia No 39 Bolsheretski, Russia
Odijev, Ruslan Anatolivich Russia Yes 33 Prolandnom, Russia
Sharipov, Almasm Rabilavich Russia Yes 35 Avzion, Russia
Vahitov, Aiat Nasimovich Russia Yes 29 Naberyozhnyj, Russia

Saudi Arabia
Name Nationality Released Age (approximate) Birthplace NLEC
Abd Al-Razaq, Abdallah Hamid Ibrahim Al-Sharikh Saudi Arabia No 22 Shaqara, Saudi Arabia
Abdel Aziz, Abdullah Muhammed Saudi Arabia No 39 Al Medina Menawa, Saudi Arabia
Ahmed, Abdul Rahman Uthman Saudi Arabia No 33 Riyadh, Saudi Arabia
Ahmed Zaid Salim Zuhair Saudi Arabia No 33 Jeddah, Saudi Arabia
Al Amri, Abd Al Rahman Moaza Zafer Saudi Arabia No 28 Arar, Saudi Arabia
Al Amri, Abdul Rahman Ma Ath Thafir Saudi Arabia No 33 Ta'if, Saudi Arabia
Al Anazi, Sultan Sari Sayel Saudi Arabia No 32 Sakaka, Saudi Arabia
Al Atabi, Bijad Thif Allah Saudi Arabia No 35 Saajer, Saudi Arabia
Al Awfi, Mazin Salih Musaid Saudi Arabia No 27 Medina, Saudi Arabia
Al Baddah, Abdul Aziz Abdul Rahman Abdul Aziz Saudi Arabia No 24 Quia, Saudi Arabia
Al Balushi, Salah Abdul Rasul Ali Abdul Saudi Arabia No 26 Jeddah, Saudi Arabia
Al Barakat, Khalid Hassan Husayn Saudi Arabia No 31 Mecca, Saudi Arabia
Al Bawardi, Khalid Saud Abd Al Rahman Saudi Arabia No 29 Riyadh, Saudi Arabia
Al Bedani, Abdul Khaled Ahmed Sahleh Saudi Arabia No 23 Taif, Saudi Arabia
Al Bidna, Sa Ad Ibraham Sa Ad Saudi Arabia No 28 Riyadh, Saudi Arabia
Al Bihani, Tolfiq Nassar Ahmed Saudi Arabia No 34 Tabuk, Saudi Arabia
Al Darbi, Ahmed Muhammed Haza Saudi Arabia No 31 Ta'if, Saudi Arabia
Al Dubaikey, Bessam Muhammed Saleh Saudi Arabia No 28 Qasim, Saudi Arabia
Al Farha, Said Ali Saudi Arabia No 27 Bahir, Saudi Arabia
Al Fayfi, Jabir Jubran Saudi Arabia No 31 Ta'if, Saudi Arabia
Al Fouzan, Fahd Muhammed Abdullah Saudi Arabia No 23 Riyadh, Saudi Arabia
Al Frih, Majed Hamad Saudi Arabia No 26 Mecca, Saudi Arabia
Al Ghatani, Khalid Malu Shia Saudi Arabia No 23 Al Arib, Saudi Arabia
Al Harazi, Fahed Saudi Arabia No 28 Mecca, Saudi Arabia
Al Harbi, Ghanim Abdul Rahman Saudi Arabia No 32 Khobar, Saudi Arabia
Al Harbi, Majid Abdallah Husayn Muhammad Al Samluli Saudi Arabia No 26 Jedda, Saudi Arabia
Al Harbi, Mohamed Atiq Awayd Saudi Arabia No 33 Riyadh, Saudi Arabia
Al Harbi, Mohammed Abdullah Saudi Arabia No 27 Riyadh, Saudi Arabia
Al Harbi, Salim Suliman Saudi Arabia No 38 Mecca, Saudi Arabia
Al Harbi, Tariqe Shallah Hassan Saudi Arabia No 23 Medina, Saudi Arabia
Al Hataybi, Abdul Rahman Nashi Badi Saudi Arabia No -7174 Dehman, Saudi Arabia
Al Hizani, Abd Saudi Arabia No 30 Riyahd, Saudi Arabia
Al Hubayshi, Khalid Sulaymanjaydh Saudi Arabia No 31 Jeddah, Saudi Arabia
Al Jabri, Bandar Ahmad Mubarak Saudi Arabia No 27 Mecca, Saudi Arabia
Al Joudi, Majeed Abdullah Saudi Arabia No 39 Mecca, Saudi Arabia
Al Juaid, Abdul Rahman Owaid Mohammad Saudi Arabia No 26 Ta'if, Saudi Arabia
Al Juhani, Muhamad Naji Subhi Saudi Arabia No 39 Jeddah, Saudi Arabia
Al Jutayli, Fahd Salih Sulayman Saudi Arabia No 23 Burayada, Saudi Arabia
Al Kabi, Jamil Ali Saudi Arabia No 33 Mecca, Saudi Arabia
Al Khaldi, Abdul Aziz Saad Saudi Arabia No 27 Riyadh, Saudi Arabia
Al Khalif, Hani Saiid Mohammad Saudi Arabia No 34 Riyadh, Saudi Arabia
Al Kurash, Muhammad Abd Al Rahman Saudi Arabia No 29 Ta'if, Saudi Arabia
Al Mahayawi, Saud Dakhil Allah Muslih Saudi Arabia No 30 Jedda, Saudi Arabia
Al Malki, Saed Khatem Saudi Arabia No 37 Mecca, Saudi Arabia
Al Matrafi, Abdallah Aiza Saudi Arabia No 42 Mecca, Saudi Arabia
Al Morghi, Khalid Abdallah Abdel Rahman Saudi Arabia No 36 Mecca, Saudi Arabia
Al Mousa, Abdul Hakim Abdul Rahman Abduaziz Saudi Arabia No 30 Riyadh, Saudi Arabia
Al Muri, Khalid Rashd Ali Saudi Arabia No 31 Khafji, Saudi Arabia
Al Nasir, Abd Al Aziz Muhammad Ibrahim Saudi Arabia No 26 Mecca, Saudi Arabia
Al Nasir, Faizal Saha Saudi Arabia No 26 Riyadh, Saudi Arabia
Al Nasir, Ibrahim Muhammed Ibrahim Saudi Arabia No 24 Mecca, Saudi Arabia
Al Noofayaee, Abdalaziz Kareem Salim Saudi Arabia No 30 Al Shafa, Saudi Arabia
Al Nurr, Anwar Saudi Arabia No 29 Toraif, Saudi Arabia
Al Nusayri, Adil Uqla Hassan Saudi Arabia No 32 Sakakah, Saudi Arabia
Al Oshan, Saleh Abdall Saudi Arabia No 27 Riyadh, Saudi Arabia
Al Otaibi, Nawaf Fahad Saudi Arabia No 34 Riyadh, Saudi Arabia
Al Qahtani, Abdullah Hamid Saudi Arabia No 27 Mecca, Saudi Arabia
Al Qahtani, Jabir Hasan Muhamed Saudi Arabia No 28 Mecca, Saudi Arabia
Al Qahtani, Jabran Said Wazar


Formal Charges Saudi Arabia No 29 Tabuk, Saudi Arabia
Al Qahtani, Muhammad Mani Ahmed Al Shal Lan Saudi Arabia No 27 Kharj, Saudi Arabia
Al Qurayshi, Majid Aydha Muhammad Saudi Arabia No 34 Mecca, Saudi Arabia
Al Qurbi, Mohammed Mubarek Salah Saudi Arabia No 28 Khamees Musheet, Saudi Arabia
Al Rabiesh, Yusef Abdullah Saleh Saudi Arabia No 25 Al Khasim, Saudi Arabia
Al Rashid, Mesh Arsad Saudi Arabia No 26 Sana'a, Saudi Arabia
Al Rushaydan, Abdallah Ibrahim Saudi Arabia No 39 Khobar, Saudi Arabia
Al Samiri, Bader Al Bakri Saudi Arabia No 29 Mecca, Saudi Arabia
Al Sehli, Ibrahim Daif Allah Neman Saudi Arabia No 41 Medina, Saudi Arabia
Al Shamaree, Zaban Thaaher Zaban Saudi Arabia No 27 Arar, Saudi Arabia
Al Sharakh, Abdulhadi Abdallah Ibrahim Saudi Arabia No 24 Riyadh, Saudi Arabia
Al Sharbi, Ghassan Abdullah


Formal Charges Saudi Arabia No 32 Jeddah, Saudi Arabia
Al Sharif, Fahd Umr Abd Al Majid Saudi Arabia No 30 Mecca, Saudi Arabia
Al Shihri, Yussef Mohammed Mubarak Saudi Arabia No 21 Riyadh, Saudi Arabia
Al Shimri, Maji Afas Radhi Saudi Arabia No 32 Kharj, Saudi Arabia
Al Shumrani, Mohammad Al Rahman Saudi Arabia No 31 Riyadh, Saudi Arabia
Al Shurfa, Ohmed Ahmed Mahamoud Saudi Arabia No 31 Jeddah, Saudi Arabia
Al Sulami, Yahya Samil Al Suwaymil Saudi Arabia No 27 Jeddah, Saudi Arabia
Al Tabi, Mana Shaman Allabardi Saudi Arabia No 30 Al-Qarara, Saudi Arabia
Al Taibi, Rami Bin Said Saudi Arabia No 26 Ta'if, Saudi Arabia
Al Tayabi, Abdullah Saudi Arabia No 26 Halban, Saudi Arabia
Al Usaymi, Nayif Fahd Mutliq Saudi Arabia No 27 Riyadh, Saudi Arabia
Al Utaybi, Abdullah Ali Saudi Arabia No 34 Mecca, Saudi Arabia
Al Utaybi, Muhammad Surur Dakhilallah Saudi Arabia No 23 Qaisuma, Saudi Arabia
Al Uwaydha, Sultan Ahmed Dirdeer Musa Saudi Arabia No 31 Medina, Saudi Arabia
Al Wafti, Abdullah Abd Al Mu'In Saudi Arabia No 40 Mecca, Saudi Arabia
Al Wahab, Musa Abed Saudi Arabia No 29 Medina, Saudi Arabia
Al Zabe, Slah Muhamed Salih Saudi Arabia No 34 Mecca, Saudi Arabia
Al Zaharni, Khalid Mohammed Saudi Arabia Yes 34 Al Kharj, Saudi Arabia
Al Zahrani, Muhammed Murdi Issa Saudi Arabia No 37 Ta'if, Saudi Arabia
Al Zahrani, Said Ibrahim Ramzi Saudi Arabia No 25 Ta'if, Saudi Arabia
Al Zahrani, Yasser Talal Saudi Arabia No 22 Yenbo, Saudi Arabia
Al Zayla, Muhammed Yahia Mosin Saudi Arabia No 29 Medina, Saudi Arabia
Al-Shabani, Fahd Abdallah Ibrahim Saudi Arabia Yes 24 Riyadh, Saudi Arabia
Al-Shedoky, Mish'Al Muhammad Rashid Saudi Arabia Yes 24 Riyadh, Saudi Arabia
Alhabiri, Mishal Awad Sayaf Saudi Arabia No 26 Minawara, Saudi Arabia
Ali, Adnan Mohammed Saudi Arabia No 28 Ta'if, Saudi Arabia
Ali Bin Attash, Hassan Mohammed Saudi Arabia No 21 Jeddah, Saudi Arabia
Amar, Abu Saudi Arabia No 29 Jeddah, Saudi Arabia
Ami, Shakir Abdurahim Mohamed Saudi Arabia No 38 Medina, Saudi Arabia
Arbaysh, Ibrahimj Sulayman Muhammad Saudi Arabia No 27 Al Brida, Saudi Arabia
Balkhair, Rashed Awad Khalaf Saudi Arabia No 28 Jurashi, Saudi Arabia
Barayan, Majid Al Saudi Arabia No 34 Jedda, Saudi Arabia
Bukhary, Abdul Hakim Saudi Arabia No 51 Mecca, Saudi Arabia
Ghetan, Abdul Salam Saudi Arabia No 22 Riyadh, Saudi Arabia
Hamdi, Yasser Saudi Arabia / USA Yes 27 Baton Rouge, Louisiana
Hawsawi, Amran Baqur Mohammed Saudi Arabia No 31 Ta'if, Saudi Arabia
Humud Dakhil Humud Sa'Id Al-((Jad'An Saudi Arabia No 33 Jeddah, Saudi Arabia
Ibrahim, Nayif Abdallah Ibrahim Saudi Arabia No 24 Riyadh, Saudi Arabia
Il Bhawith, Zaid Binsallah Mohammed Saudi Arabia No 24 Qasim, Saudi Arabia
Jahdari, Ziad Said Farg Saudi Arabia No 27 Jeddah, Saudi Arabia
Jaid Al Khathami, Saleh Ali Saudi Arabia No 25 Dharan, Saudi Arabia
Khowlan, Abdul Rahman Mohammed Hussein Saudi Arabia No 34 Taif, Saudi Arabia
Makram, Murtadha Al Said Saudi Arabia No 30 Riyadh, Saudi Arabia
Mohamed, Fahed Nasser Saudi Arabia No 24 Abaha, Saudi Arabia
Mohammed, Ali Muhammed Nasir Saudi Arabia No 24 Jedda, Saudi Arabia
Mohammed, Kahlid Saad Saudi Arabia No 33 Al Tabia, Saudi Arabia
Mohammed, Salman Saad Al Khadi Saudi Arabia No 24 Riyadh, Saudi Arabia
Nur, Yusif Khalil Abdallah Saudi Arabia No 24 Mecca, Saudi Arabia
Qa Id, Rashid Abd Al Muslih Qa Id Al Saudi Arabia No 47 Sakahka, Saudi Arabia
Qahtani, Said Muhammad Husyan Saudi Arabia No 28 Khamees Mushail, Saudi Arabia
Qattaa, Mansoor Muhammed Ali Saudi Arabia No 24 Ta'if, Saudia Arabia
Sa Id Ali Jabir Al Khathim Al Shihri Saudi Arabia No 33 Riyadh, Saudi Arabia
Said, Salam Abdullah Saudi Arabia No 25 Tabokh, Saudi Arabia
Saleh Ganmi, Abdullah Muhammad Saudi Arabia No 32 Rabug, Saudi Arabia
Sebai, Mohammed Jayed Saudi Arabia No 23 Riyadh, Saudi Arabia
Sebaii, Abdel Hadi Mohammed Badan Al Sebaii Saudi Arabia No 35 El Kharg, Saudi Arabia
Shalabi, Abdul Rahman Saudi Arabia No 31 Medina, Saudi Arabia
Shayban, Said Bezan Ashek Saudi Arabia No 25 Ta'iz, Saudi Arabia
Shili, Ibrahim Rushdan Brayk Al- Saudi Arabia Yes 25 Medina, Saudi Arabia
Subii, Nasir Maziyad Abdallah Al Qurayshi Al Saudi Arabia No 36 Kasim, Saudi Arabia
Sultan, Faha Saudi Arabia No 34 Jeddah, Saudi Arabia
Thani, Abdallah Faris Al Unazi Saudi Arabia No 26 Saudi Arabia
Turki Mash Awi Zayid Al Asiri Saudi Arabia No 31 Taboq, Saudi Arabia
Turkistani, Sadik Ahmad Saudi Arabia Yes Unknown Taif, Saudi Arabia Yes
Umar, Ibrahim Umar Ali Al- Saudi Arabia Yes 23 Al Qaseem, Saudi Arabia
Uwaydah, Rashid Awad Rashid Al Saudi Arabia No 30 Sakaka, Saudi Arabia
Wasim Saudi Arabia No 43 Al Jauf, Saudi Arabia
Zahrani, Fawaz Abd Al-Aziz Al- Saudi Arabia Yes 28 Medina, Saudi Arabia

Somalia
Name Nationality Released Age (approximate) Birthplace NLEC
Abdallah, Muhamed Hussein Somalia No 23 Boor'o, Somalia
Barre, Mohammed Sulaymon Somalia No 42 Burco, Somalia

Spain
Name Nationality Released Age (approximate) Birthplace NLEC
Ahmad, Ahmad Abd Al Rahman Spain Yes 32 Cueta, Spain

Sudan
Name Nationality Released Age (approximate) Birthplace NLEC
Al Amir Mahmoud, Amir Yakoub Mohammed Sudan No 35 Omdurman, Sudan
Al Hajj, Sami Mohy El Din Muhammed Sudan No 37 Khartoum, Sudan
Al Hassan, Mustafa Ibrahim Mustafa Sudan No 49 Al-Manakil, Sudan
Al Qosi, Ibrahim Ahmed Mahmoud


Formal Charges Sudan No 46 Khartoum, Sudan
Ali, Walid Mohammad Haj Mohammad Sudan No 32 Donkhallah, Sudan
Bani Amir, Salim Mahmoud Adem Mohammed Sudan No 48 Kasala, Sudan
Gadallah, Hammad Ali Amno


Status Review Tribunal Transcript Sudan Yes 37 Duba, Sudan Yes
Hassan, Adel Sudan No 48 Port Sudan, Sudan
Idris, Ibrahim Othman Ibrahim Sudan / Yemen No 45 Hathramuut, Yemen
Mahjoub, Muhammed Al Ghazali Babaker Sudan Yes 33 Um Durman, Sudan
Muhammaed, Noor Uthman Sudan No Unknown Kasala, Sudan
Raheem, Al Rachid Hasan Ahmad Abdul Sudan Yes 41 Al-Ubayyid, Sudan

Sweden
Name Nationality Released Age (approximate) Birthplace NLEC
Ghezali, Mehdi Mohammad Sweden Yes 27 Stockholm, Sweden

Syria
Name Nationality Released Age (approximate) Birthplace NLEC
Ahjam, Ahmed Adnan Syria No 29 Halab, Syria
Al Ali, Mahmud Salem Horan Mohammed Mutlak Syria No 32 Doha, Syria
Al Henali, Menhal Syria Yes 43 Darna, Syria
Dokhan, Moammar Badawi Syria No 34 Damascus, Syria
Faraj, Abd Al Hadio Omar Mahmoud Syria No 25 Hama, Syria
Janko, Abd Al Rahim Abdul Rassak Syria No 28 Al Qamashil, Syria
Khantumani, Abd Al Nasir Mohammed Abd Al Qadir Syria No 46 Halab, Syria
Khantumani, Muhammad Abd Al Nasir Muhammad Syria No 24 Halab, Syria
Mouhammad, Maasoum Abdah Syria No 34 Al Qameshle, Syria
Shaaban, Ali Husein Syria No 24 Utaiba, Syria

Tajikistan
Name Nationality Released Age (approximate) Birthplace NLEC
Abdulayev, Omar Hamzayavich Tajikistan No 28 Dushanbe, Tajikistan
Fazrollah, Mehrabanb Tajikistan No 44 Pyandj, Tajikistan
Ghafar Homarovich, Shirinov Tajikistan Yes 32 Dushanbe, Tajikistan
Homaro, Moyuballah Tajikistan Yes 26 Alisurkhan, Tajikistan
Irgashive, Abdul Karim Tajikistan Yes 41 Dushanbe, Tajikistan
Jan, Jumma Tajikistan No 28 Kurgantapa, Tajikistan
Lnu, Sadee Eideov Tajikistan Yes 53 Kamsamulabad Reyhan, Tajikista
Mazharudin, Fnu Tajikistan Yes 27 Pajpai, Pakistan
Nabied, Yusef Tajikistan Yes 43 Isfara, Tajikistan
Salehove, Maroof Saleemovich Tajikistan No 28 Dushanbe, Tajikistan
Sharipov, Rukniddin Fayziddinovich Tajikistan No 33 Lenenabad, Tajikistan
Vakhidov , Sobit Abdumukit Valikhonovich Tajikistan No 37 Itsfaratz, Tajikistan

Tunisia
Name Nationality Released Age (approximate) Birthplace NLEC
Abdallah, Sayf Bin Tunisia No 33 Menzil, Tunisia
Al Hami, Rafiq Bin Bashir Bin Jalud Tunisia No 37 Omaron, Tunisia
Al Yazidi, Ridah Bin Saleh Tunisia No 41 Unfidel, Tunisia
Bin Hadiddi, Abdul Haddi Tunisia No 37 Bir'Alash, Tunisia
Bin Hamida, Adil Mabrouk Tunisia No 36 Tunis, Tunisia
Hkiml, Adel Bin Ahmed Bin Ibrahim Tunisia No 41 Bin Aroes, Tunisia
Lagha, Lufti Bin Swei Tunisia No 38 Tunis, Tunisia
Nasseri, Riyad Bil Mohammmed Tahir Tunisia No 40 Gafsa, Tunisia
Omar, Abdullah Bin Tunisia No 50 Massoulta, Tunisia
Ourgy, Abdul Bin Mohammed Bin Abess Tunisia No 41 Tunis, Tunisia
Rahman, Mohammed Abdul Tunisia No 41 Tunis, Tunisia
Sliti, Hisham Bin Ali Bin Amor Tunisia No 40 Hamam Lif, Tunisia

Turkey
Name Nationality Released Age (approximate) Birthplace NLEC
Celik Gogus, Yuksel Turkey Yes 39 Karasu Village, Sakara City, Turkey
Karnaz, Murat Turkey No 24 Bremen, Germany
Mart, Mahmud Nuri Turkey Yes 35 Agri, Turkey
Sen, Ibrahim Shafir Turkey Yes 26 Van, Turkey
Uyar, Salih


Status Review Tribunal Transcript Turkey Yes 25 Kojaeli, Turkey Yes

Turkmenistan
Name Nationality Released Age (approximate) Birthplace NLEC
Turkash, Emdash Abdullah Turkmenistan Yes 65 Ghazni, Afghanistan

Uganda
Name Nationality Released Age (approximate) Birthplace NLEC
Kiyemba, Jamal Abdullah Uganda Yes 27 Bunamwaya, Uganda

United Arab Emirates
Name Nationality Released Age (approximate) Birthplace NLEC
Abd Al Sattar, Muieen A Deen Jamal A Deen Abd Al Fusal United Arab Emirates No 31 Dubai, United Arab Emirates
Alhamiri, Abdulah United Arab Emirates No 27 Alan, United Arab Emirates

United Kingdom
Name Nationality Released Age (approximate) Birthplace NLEC
Abassi, Feroz Ali United Kingdom No 27 Entebbe, Uganda
Ahmed, Rhuhel United Kingdom Yes 25 Birmingham, United Kingdom
Al Harith, Jamal Malik United Kingdom Yes 40 Manchester, United Kingdom
Begg, Moazzan United Kingdom Yes 38 Birmingham, United Kingdom
Belmar, Richard Dean United Kingdom Yes 27 London, United Kingdom
Iqbal, Asif United Kingdom Yes 25 West Bromwich, United Kingdom
Mubanga, Martin John United Kingdom Yes 34 Lusaka, Zambia
Rasul, Shafiq United Kingdom Yes 33 Dudley, England

Uzbekistan
Name Nationality Released Age (approximate) Birthplace NLEC
Adam, Mohammed Sadiq Uzbekistan Yes 33 Konduz, Afghanistan
Batayev, Ilkham Turdbyavich Uzbekistan No 33 Abaye, Kazakhstan
Hamidullah, Ali Sher Uzbekistan No 32 Tashkent, Uzbekistan
Hamiduva, Shakhrukh Uzbekistan No 23 Kokan, Uzbekistan
Jamaludinovich, Abu Bakir Uzbekistan No 32 Chartakh, Uzbekistan
Kasimbekov, Kamalludin Uzbekistan No 29 Tashkent, Uzbekistan
Khan, Abdullah Mohammad Uzbekistan No 34 Faryab, Afghanistan

West Bank
Name Nationality Released Age (approximate) Birthplace NLEC
Al Quwari, Mahrar Rafat West Bank No 41 Gaza
Hussein, Abdul Qadir Yousef West Bank No 53 Jenin, West Bank
Tahamuttan, Mohammed Abdullah West Bank No 27 Burka, West Bank

Yemen
Name Nationality Released Age (approximate) Birthplace NLEC
Abd Al Mujahid, Mahmoud Abd Al Aziz Yemen No 29 Ta'iz, Yemen
Abd Al Rahman Abd, Allal Ab Aljallil Yemen No 31 Aluday, Yemen
Abd Al Wahab, Abd Al Malik Yemen No 27 Ibb, Yemen
Abu Ghanim, Mohammed Rajab Sadiq Yemen No 31 Sanaa, Yemen
Ahmad, Majid Mahmud Abdu Yemen No 26 Burayqah, Yemen
Ahmed, Abdul Rahman Yemen No 27 Sana'a, Yemen
Ahmed, Ali Abdullah Yemen No 29 Ib, Yemen
Ahmed, Fahmi Abdullah Yemen No 29 Debab, Yemen
Ahmed, Faruq Ali Yemen No 23 Ta'iz, Yemen
Ahmed, Fayad Yahya Yemen No 29 Aden, Yemen
Al Alawi, Muaz Hamza Ahmad Yemen No 29 Bajor, Yemen
Al Ansi, Muhammad Ahmad Abdallah Yemen No 31 Sanaa, Yemen
Al Asadi, Mohammed Ahmed Ali Yemen No 27 Sana'a, Yemen
Al Bihani, Ghaleb Nassar Yemen No 26 Tabokh, Saudi Arabia
Al Busayss, Adil Said Al Haj Obeid Yemen No 33 Aden, Yemen
Al Dhuby, Khalid Mohammed Salih Yemen No 25 Taif, Saudi Arabia
Al Edah, Mohammed Ahmad Said Yemen No 44 Hay al-Turbawi Ta'iz, Yemen
Al Hamiri, Mohammed Abdullah Yemen No 24 Hudaydah, Yemen
Al Hanashi, Mohammad Ahmed Abdullah Saleh Yemen Yes 28 Al Habrub, Yemen
Al Hikimi, Ahmed Umar Abdullah Yemen No 34 Ta'iz, Yemen
Al Hilal, Abdul Al Salam Yemen No 38 Unknown
Al Jayfi, Issam Hamid Al Bin Ali Yemen No 27 Sada, Yemen
Al Kazimi, Sanad Yislam Yemen No 36 Unknown
Al Khalaqi, Asim Thahit Abdullah Yemen No 38 Riyadh, Saudi Arabia
Al Madoonee, Musab Omar Ali Yemen No 26 Al-Hudida, Yemen
Al Marwalah, Bashir Nasir Ali Yemen No 27 Al-Haymah, Yemen
Al Maythali, Ha Il Aziz Ahmed Yemen No 29 Zemar, Yemen
Al Mudhaffari, Abdel Qadir Hussein Yemen No 30 Al Bayda, Yemen
Al Nahdi, Sulaiman Awath Sulaiman Bin Ageel Yemen No 32 Al Mukalla, Yemen
Al Omairah, Othman Ahmed Othman Yemen No 33 Shabwa, Yemen
Al Qadasi, Khalid Abd Jal Jabbar Muhammad Juthman Yemen No 38 Ta'iz, Yemen
Al Qurashi, Sabri Mohammed Ebrahim Yemen No 36 Hudaydah, Yemen
Al Radai, Riyad Atiq Ali Abdu Al Haj Yemen No Unknown Taez, Yemen
Al Rahizi, Ali Ahmad Muhammad Yemen No 27 Ta'iz, Yemen
Al Rammah, Omar Mohammed Ali Yemen No 31 Al Beitha, Yemen
Al Rimi, Ali Yahya Mahdi Yemen No 23 Sana'a, Yemen
Al Sabri, Mashur Abdallah Muqbil Ahmed Yemen No 28 Mecca, Saudi Arabia
Al Saleh, Abdul Yemen No 27 Muqela, Yemen
Al Sani, Fahmi Salem Said Yemen No 29 Mikala, Yemen
Al Shamyri, Mustafa Abdul Qawi Abdul Aziz Yemen No 28 Sana'a, Yemen
Al Sharabi, Zuhail Abdo Anam Said Yemen No 29 Taiz, Yemen
Al Shulan, Hani Abdul Muslih Yemen No 27 Ibb, Yemen
Al Suadi, Abdul Aziz Abdullah Ali Yemen No 32 Milhan, Yemen
Al Tays, Ali Husayn Abdullah Yemen No 29 Sada, Yemen
Al Wady, Hamoud Abdullah Hamoud Hassan Yemen No 41 Sana'a, Yemen
Al Warafi, Muktar Yahya Najee Yemen No 32 Ta'iz, Yemen
Al Yafi, Al Khadr Abdallah Muhammed Yemen No 36 Lawdar, Yemen
Al Zuba, Saleh Mohamed Yemen No 51 Sana'a, Yemen
Al-Marwa'I, Toufiq Saber Muhammad Yemen No 30 Al Dumaina, Yemen
Alahdal, Abu Bakr Ibn Ali Muhhammad Yemen No 27 Al Hudaydah, Yemen
Aleh, Ali Bin Ali Yemen No 23 Adem, Yemen
Awad, Jalal Salam Awad Yemen No 33 Al Muquala, Yemen
Awad, Waqas Mohammed Ali Yemen No 24 Aden, Yemen
Azani, Saad Masir Mukbl Al Yemen No 27 Al Reef, Yemen
Baada, Tarek Ali Abdullah Ahmed Yemen No 28 Shebwa, Yemen
Balzuhair, Shawki Awad Yemen No 25 Hadramout, Yemen
Basardah, Yasim Muhammed Yemen No 30 Shabua, Yemen
Batarfi, Ayman Saeed Abdullah Yemen No 36 Cairo, Egypt
Bin Atef, Mahmmoud Omar Mohammed Yemen No 26 Mecca, Saudi Arabia
Bin Salem, Muhhammad Said Yemen No 31 Hadramaut, Yemen
Bwazir, Mohammed Ali Abdullah Yemen No 26 Howra, Yemen
Ghazi, Fahed Abdullah Ahmad Yemen No 24 Bayt Ghazi, Yemen
Hadi, Salem Ahmed Yemen No 30 Hadramaut, Yemen
Haidel, Mohammed Ahmed Said Yemen No 28 Ta'iz, Yemen
Hakim, Abdel Ghalib Ahmad Yemen No 27 Ta'iz, Yemen
Hamdan, Salim Ahmed Salim


Formal Charges Yemen No 36 Hadramout, Yemen
Hamdoun, Zahar Omar Hamis Bin Yemen No 27 Ash Shihr, Yemen
Hassan, Emad Abdalla Yemen No 27 Aden, Yemen
Hassen, Mohammed Mohammed Yemen No 23 Ta'iz, Yemen
Hatim, Said Muhammed Salih Yemen No 30 Ibb, Yemen
Hintif, Fadil Husayn Salih Yemen No 37 Al Youf, Yemen
Ismail, Ali Hamza Ahmed Sulayman Yemen No 37 Hudaydah, Yemen
Ismail, Sadeq Muhammad Sa Id Yemen No 24 Jabal Haimain, Yemen
Ismail, Yasin Qasem Muhammad Yemen No 27 Ibb, Yemen
Jarabh, Saeed Ahmed Mohammed Abdullah Sarem Yemen No 30 Jeddah, Saudi Arabia
Khamsan, Karam Khamis Sayd


Status Review Tribunal Transcript Yemen Yes 37 Al Mahra, Yemen Yes
Khnenah, Muhammed Ali Hussein Yemen No Unknown Ktaph, Yemen
Khusruf, Mohammed Nasir Yahya Yemen No 56 Ta'iz, Yemen
Mahdi, Fawaz Naman Hamoud Abdullah Yemen No 26 The Shaira, Yemen
Mar'I, Jamal Muhammad 'Alawi Yemen No Unknown Dhamar, Yemen
Masud, Sharaf Ahmad Muhammad Yemen No 28 Sana'a, Yemen
Mohammed, Hussein Salem Yemen No 29 Aden, Yemen
Moqbel, Samir Naji Al Hasan Yemen No 29 Ta'iz, Yemen
Moqbill, Muhsin Muhammad Musheen Yemen No Unknown Ta'iz, Yemen
Muhammad, Abd Al Rahman Abdullah Ali Yemen No 24 Sana'a, Yemen
Nashir, Sa Id Salih Sa Id Yemen No 32 Habilain, Yemen
Nassir, Jamil Ahmed Said Yemen No 36 Ta'iz, Yemen
Qader, Ahmed Abdul Yemen No 23 Sana'a, Yemen
Qader Idris, Idris Ahmed Abdu Yemen No 27 Rada, Yemen
Qasim, Khaled Yemen No 29 Themeir, Yemen
Qyati, Abdul Rahman Umir Al Yemen No 30 Jeddah, Saudi Arabia
Rabeii, Salman Yahya Hassan Mohammed Yemen No 27 Jedda, Saudi Arabia
Rahman, Abdul Yemen No 30 Hadramaut, Yemen
Said Kuman, Ahmed Yaslam Yemen No 25 Hathramout, Yemen
Salam, Mohammed Ahmed Yemen No 26 Ta'iz, Yemen
Saleh, Ayoub Murshid Ali Yemen No 28 Usabee, Yemen
Saleh Naser, Abdul Rahman Mohamed Yemen No 26 Ma'rib, Yemen
Salem Al Zarnuki, Mohammed Ali Yemen No Unknown Husayneyah, Yemen
Salih, Abdul Al Razzaq Muhammad Yemen No 33 Al Gidd Al Hajjah, Yemen
Salih, Ali Mohsen Yemen No 26 Guban, Yemen
Shahir, Walid Mohammed Yemen Yes 27 Al Tawahi, Yemen
Sharqawi, Abdu Ali Al Haji Yemen No 32 Ta'iz, Saudi Arabia
Sulayman, Abdul Rahman Abdul Abu Ghityh Yemen No 27 Ta'iz, Yemen
Suleiman, Fayiz Ahmad Yahia Yemen No 32 Jeddah, Saudi Arabia
Tahar, Mohmmad Ahmad Ali Yemen No 26 Ib, Yemen
Uthman, Uthman Abdul Rahim Mohammed Yemen No 27 Aden, Yemen
Zaid, Walid Said Bin Said Yemen No 28 Ta'iz, Yemen

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Guantanamo Prison
http://www.washingtonpost.com/wp-dyn/conte...errer=emaillink

http://projects.washingtonpost.com/guantanamo/

http://www.latimes.com/news/nationworld/wo...-home-headlines

High Court Rules Out Tribunals for Gitmo Detainees
From Associated Press
7:44 AM PDT, June 29, 2006


WASHINGTON -- The Supreme Court ruled today that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Today's ruling overturned that decision.

Bush spokesman Tony Snow said the White House would have no comment until lawyers had had a chance to review the decision. Officials at the Pentagon and Justice Department were planning to issue statements later in the day.

The administration had hinted in recent weeks that it was prepared for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close Guantanamo." But he added, "I also recognize that we're holding some people that are darn dangerous."

The court's ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his opinion.

The prison at Guantanamo Bay, erected in the months after the Sept. 11, 2001, terror attacks on the United States, has been a flash point for international criticism. Hundreds of people suspected of ties to al-Qaida and the Taliban -- including some teenagers -- have been swept up by the U.S. military and secretly shipped there since 2002.

Three detainees committed suicide there this month, using sheets and clothing to hang themselves. The deaths brought new scrutiny and criticism of the prison, along with fresh calls for its closing.

Justice Clarence Thomas wrote a strongly worded dissent, saying the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas said, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

Justices Antonin Scalia and Samuel Alito also filed dissents.

In his own opinion, Justice Stephen Breyer said, "Congress has not issued the executive a 'blank check."'

"Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Breyer wrote.

http://www.nytimes.com/2006/06/29/washingt...artner=homepage

Supreme Court Blocks Trials at Guantanamo

By THE ASSOCIATED PRESS
Published: June 29, 2006
WASHINGTON (AP) -- The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

John Riley/European Pressphoto Agency
The sprawling detention site known as Camp Delta is part of the detention center at Guantánamo Bay, Cuba.

Audio: Arguments in Hamdan v. RumsfeldThe ruling, a strong rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison in Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

The ruling raises major questions about the legal status of about 450 men still being held at Guantanamo and exactly how, when and where the administration might pursue the charges against them.

It also seems likely to further fuel international criticism of the administration, including by many U.S. allies, for its handling of the terror war detainees at Guantanamo in Cuba, Abu Ghraib in Iraq and elsewhere.

Two years ago, the court rejected Bush's claim that he had authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in most of the ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

The administration had hinted in recent weeks that it was prepared for the court to set back its plans for trying Guantanamo detainees.

The president also has told reporters, "I'd like to close Guantanamo." But he added, "I also recognize that we're holding some people that are darn dangerous."

The court's ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

"Trial by military commission raises separation-of-powers concerns of the highest order," Kennedy wrote in his separate opinion. "Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid."

The prison at Guantanamo Bay, erected in the months after the Sept. 11, 2001, terror attacks on the United States, has been a flash point for international criticism. Hundreds of people suspected of ties to al-Qaida and the Taliban -- including some teenagers -- have been swept up by the U.S. military and secretly shipped there since 2002.

Three detainees committed suicide there this month, using sheets and clothing to hang themselves. The deaths brought new scrutiny and criticism of the prison, along with fresh calls for its closing.

Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench -- something he had never done before in his 15 years. He said the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas wrote in the dissent, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

Justices Antonin Scalia and Samuel Alito also filed dissents.

In his own separate opinion, Justice Stephen Breyer said, "Congress has not issued the executive a 'blank check."'

"Indeed, Congress has denied the president the legislative authority to create military commissions of the kind at issue here. Nothing prevents the president from returning to Congress to seek the authority he believes necessary," Breyer wrote.

The court's ruling was a resounding loss for the Bush administration. Justices also rejected the administration's claim that the case should be thrown out on grounds that a new law stripped their authority to consider it.

"It's certainly a nail in the coffin for the idea that the president can set up these trials," said Barbara Olshansky, legal director of the Center for Constitutional Rights, which represents about 300 Guantanamo detainees.

Hamdan claims the military commissions established by the Pentagon on Bush's orders are flawed because they violate basic military justice protections.

Hamdan says he is innocent and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.

The case is Hamdan v. Rumsfeld, 05-184.

http://www.dnaindia.com/report.asp?NewsID=1038502
Supreme Court rejects US war crime tribunals

Agencies
Thursday, June 29, 2006 20:04 IST

WASHINGTON: The United States Supreme Court ruled on Thursday that President George W Bush overstepped his powers by setting up special war crime tribunals for 'war on terror' suspects.

The tribunal for a Guantanamo prisoner cannot proceed because it violates the Geneva Conventions, it said.

“We conclude that the military commission convened to try (Salim Ahmed) Hamdan lacks power to proceed because its structure and procedures violate; the international agreement that covers treatment of prisoners of war, as well as US military laws,” Justice John Paul Stevens wrote for the court majority in the 5-3 decision.

That part of the decision was a stinging blow for the administration in a case brought by Hamdan, who was Osama bin Laden's driver in Afghanistan.

At the White House, spokesman Tony Snow said, “We have no comment until we have read the decision but we will once we have read the decision.”


"The judgment of the court of appeals is reversed and the case is remanded for further proceedings," the Supreme Court said in its verdict on an appeals court ruling that declared the tribunals legal.

The Supreme Court decision could have far-reaching consequences for the US handling of the war on terror unleashed after the September 11, 2001 attacks and the future of the Guantanamo Bay prison where about 450 inmates are being held as "enemy combatants".

The ruling will have little effect on the detention camp that holds 450 foreign captives, the camp commander said.

“I don't think there's any direct outcome on our detention operation,” Rear Adm Harry Harris, the prison commander, said in an interview this week before the ruling.

The high court upheld on Thursday a Guantanamo defendant's challenge to President Bush's power to create the military tribunals to try suspected Al Qaeda conspirators and Taliban supporters.

Harris said he would build a second courtroom if the tribunals are allowed to proceed but little else would change because the court was not asked to rule on Guantanamo itself, a prison camp that human rights groups, the United Nations and foreign governments have sharply criticized.

The tribunals have come under fire from lawyers, who say they are rigged to ensure conviction and offer none of the basic guarantees and rights granted suspects in the US justice system or to which formal prisoners of war would be entitled.

Ten detainees at Guantanamo have been charged before the tribunals, and prosecutors have said they will charge as many as 25 more if the court rules in favor of the commissions.

“If they rule against the government I don't see how that's going to affect us. From my perspective I think the impact will be negligible,” Harris said.

About 120 prisoners at the base in have been cleared for release, or transfer to their homelands where Washington expects them to remain in detention.

Faced with growing international condemnation of the camp after three prisoners committed suicide on June 10, Bush has said he would like to empty the detention center.

But the director of interrogations at Guantanamo said many of the rest could be held a very long time because U.S. officials will not release those whom they are convinced have the connections, training and means to carry out attacks.

“Nobody wants to be the first person to allow the next 9/11 to happen,” said interrogations chief Paul Rester. “Emptying this place is not my goal.”

http://caselaw.lp.findlaw.com/scripts/getc...&friend=nytimes

Jump to: [Opinion] [Concurrence 1] [Concurrence 2] [Dissent 1] [Dissent 2] [Dissent 3]
HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 05-184. Argued March 28, 2006--Decided June 29, 2006

http://www.nytimes.com/2006/06/29/washingt...artner=homepage

Supreme Court Blocks Guantánamo Tribunals
Jamie Rose for The New York Times
Lawyers for Salim Ahmed Hamdan, the plaintiff, after the Supreme Court ruled in their favor.

By LINDA GREENHOUSE
Published: June 29, 2006
WASHINGTON, June 29 — The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.

The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing," "remarkable." Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, "It doesn't get any better."

President Bush said he planned to work with Congress to "find a way forward," and there were signs of bipartisan interest on Capitol Hill in crafting legislation that would authorize new, revamped commissions intended to withstand judicial scrutiny.

The courtroom was, surprisingly, not full, but among those in attendance, there was no doubt that they were witnessing a historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court's order to President Nixon in 1974 to turn over the Watergate tapes or with the court's rejection of President Truman's seizure of the nation's steel mills, a 1952 landmark decision from which Justice Kennedy quoted at length.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, introduced a bill immediately and said his committee would hold a hearing on July 11, as soon as Congress returns from the July 4 recess. Mr. Specter said the administration had resisted his effort to propose similar legislation as early as 2002.

Two Republican senators, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said in a joint statement that they were "disappointed" but that "we believe the problems cited by the court can and should be fixed." They added, "Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."Both overseas and in the United States, critics of the administration's detention policies praised the decision and urged President Bush to take it as an occasion to shut down the Guantanamo prison camp. "The ruling destroys one of the key pillars of the Guantanamo system," said Gerald Staberock, a director of the International Commission of Jurists in Geneva. He added: "Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole."

The majority opinion by Justice Stevens and a concurring opinion by Justice Anthony M. Kennedy, who also signed most of Justice Stevens's opinion, indicated that finding a legislative solution would not necessarily be easy. In an important part of the ruling, the court held that a provision of the Geneva Conventions known as Common Article 3 applies to the Guantanamo detainees and is enforceable in federal court for their protection.

This provision requires humane treatment of captured combatants and prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

The opinion made it clear that while this provision does not necessarily require the full range of protections of a civilian court or a military court martial, it does require observance of protections for defendants that are missing from the rules the administration has issued for military commissions. The flaws the court cited were the failure to guarantee the defendant the right to attend the trial and the prosecution's ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion.

Justice Stevens said that the historical origin of military commissions was in their use re as a "tribunal of necessity" under wartime conditions. "Exigency lent the commission its legitimacy," he said, "but did not further justify the wholesale jettisoning of procedural protections."

The majority opinion was also joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, who wrote a brief concurring opinion of his own that focused on the role of Congress. "The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check," he said.

Skip to next paragraph


Related
Text: The Opinion
The Arguments: Justices Hint That They'll Rule on Challenge Filed by Detainee (March 29, 2006)
From the Magazine: The Bush Administration vs. Salim Hamdan (January 8, 2006)
Audio: Arguments in Hamdan v. Rumsfeld
Video Report
Multimedia

Video: Ruling Is Setback for Bush The dissenters were Justices Clarence Thomas, Antonin Scalia, and Samuel A. Alito Jr. Each wrote a dissenting opinion. Justice Scalia focused on the jurisdictional issue, arguing that Congress had stripped the court of jurisdiction to proceed with this case, Hamdan v. Rumsfeld, No. 05-184, when it passed the Detainee Treatment Act last December and provided that "no court, justice, or judge" had jurisdiction to hear habeas corpus petitions filed by detainees at Guantanamo Bay. The question was whether that withdrawal of jurisdiction applied to pending cases. The majority held that it did not.

Justice Thomas's dissenting opinion addressed the substance of the court's legal conclusions. In a portion of his opinion that Justices Scalia and Alito also signed, he called the decision "untenable" and "dangerous." He observed that "those justices who today disregard the commander-in-chief's wartime decisions" had last week been willing to defer to the judgment of the Army Corps of Engineers in a Clean Water Act case. "It goes without saying that there is much more at stake here than storm drains," he said.

Chief Justice John G. Roberts Jr. did not take part in the case. Last July, four days before President Bush nominated him to the Supreme Court, he was one of the members of a three-judge panel of the federal appeals court here that ruled for the administration in this case.

In the courtroom on Thursday morning, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer during World War II.

The decision came in an appeal brought on behalf of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in November 2001 and brought to Guantanamo in June 2002. According to the government, he was a driver and bodyguard for Osama Bin Laden. In July 2003, he and five others were to be the first to face trial by military commission. But it was not until the next year that he was formally charged with a crime, conspiracy.

The commission proceeding began but was interrupted when the federal district court here ruled in November 2004 that the commission was invalid. This was the ruling that the federal appeals court, with the participation of then-Judge Roberts, overturned last July.

Lt. Cmdr. Charles Swift, Mr. Hamdan's Navy lawyer, told the Associated Press that he had informed his client about the ruling by telephone. "I think he was awe-struck that the court would rule for him, and give a little man like him an equal chance," Commander Swift said. "Where he's from, that is not true."

The decision contained unwelcome implications, from the administration's point of view, for other legal battles, some with equal or greater importance than the fate of the military commissions themselves.

For example, in finding that the federal courts still have jurisdiction to hear cases filed before this year by detainees at Guantanamo Bay, the justices put back on track for decision a dozen cases in the lower courts here that challenge basic rules and procedures governing life for the hundreds of people confined at the United States naval base there.

In ruling that the congressional "authorization for the use of military force," passed in the days immediately following the Sept. 11, 2001 terrorist attacks, cannot be interpreted to legitimize the military commissions, the ruling poses a direct challenge to the administration's legal justification for its secret wiretapping program.

Representative Adam Schiff, a California Democrat who has also introduced a bill with procedures for trying the Guantanamo detainees, said the court's refusal to give an open-ended ruling to the force resolution meant that the resolution could not be viewed as authorizing the National Security Agency's domestic wiretapping.

Perhaps most significantly, in ruling that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees, the court rejected the administration's view that the article does not cover followers of Al Qaeda. The decision potentially opened the door to challenges, by those held by the United States anywhere in the world, to treatment that could be regarded under the provision as inhumane.

Justice Stevens said that because the charge against Mr. Hamdan, conspiracy, was not a violation of the law of war, it could not be the basis for a trial before a military commission. Justice Kennedy did not join this section of the opinion, leaving it with only four votes, because he said it was unnecessary given the general finding that the commissions were invalid.

Post's Barbash Explains Supreme Court GITMO Ruling
http://www.washingtonpost.com/wp-dyn/conte...errer=emaillink

http://blog.washingtonpost.com/benchconference/

http://counterterrorismblog.org/2006/06/pr...ngress_will.php

Prediction: Bush & Congress Will Override the Supreme Court's Gitmo Decision (updated)
By Andrew Cochran

The news networks are proclaiming that the Supreme Court handed the President a "strong rebuke" in the Hamdan case by declaring the proposed Gitmo trials are illegal under U.S. law and international Geneva conventions.

Oh, really?

The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The President and GOP leaders will propose a bill to override the decision and keep the terrorists in jail until they are securely transferred to host countries for permanent punishment. The Administration and its allies will release plenty of information on the terrorist acts committed by the detainees for which they were detained (see this great ABC News interview with the Gitmo warden). They will also release information about those terrorist acts committed by Gitmo prisoners after they were released. They will challenge the "judicial interference with national security" and challenge dissenting Congressmen and civil libertarians to either stand with the terrorists or the American people. The Pentagon will continue to release a small number of detainees as circumstances allow. The bill will pass easily and quickly. And if the Supremes invalidate that law, we'll see another legislative response, and another, until they get it right. Just watch.

UPDATES: Michelle Malkin quotes a statement by Sens. Graham and Kyl: "We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute." Senate Majority Leader Bill Frist echoed their comments and promised, "I will pursue the earliest possible action in the United States Senate."

June 29, 2006 12:04 PM


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Tracked on June 29, 2006 05:12 PM

» SCOTUS to Bush: NO WAI from Wonkette
More Koizumi/Bush/Elvis funnies — though Zengerle fails to point out that the Japanese Prime Minister looks remarkably like Jim Jarmusch. Or is that just us? [The Plank] There’s some sort of fight going on over in liberal blog-land, involvi... [Read More]

Tracked on June 29, 2006 05:30 PM

» A good dissent from Don Surber
UPDATE: Andrew Cochran predicts Bush & Congress Will Override the Supreme Court's Gitmo Decision. ... Sounds like a good backup plan to me. [Read More]

Tracked on June 29, 2006 06:02 PM

» A good dissent from Don Surber
UPDATE: Andrew Cochran predicts Bush & Congress Will Override the Supreme Court's Gitmo Decision. ... Sounds like a good backup plan to me. [Read More]

Tracked on June 29, 2006 06:03 PM

» A good dissent from Don Surber
UPDATE: Andrew Cochran predicts Bush & Congress Will Override the Supreme Court's Gitmo Decision. ... Sounds like a good backup plan to me. [Read More]

Tracked on June 29, 2006 06:03 PM

» Hamdan v. Rumsfeld a Gift for Bush and Co.? from The Art of the Blog
(Via Michelle Malkin and Instapundit) Andrew Cochran and the Counterterrorism Blog has this to say about today's Hamdan decision: The decision is actually a huge political gift to President Bush, and the detainees will not be released that easily. The ... [Read More]

Tracked on June 29, 2006 06:05 PM

» Supreme Court Rules Against Gitmo from Front Page
The New York Times is absolutely incapable of unbiased, factual news reporting. They could have simply reported the arguments and outcome of Hamden vs. Rumsfeld, the case to determine whether the Geneva Convention applies to terrorists being held at ... [Read More]

Tracked on June 29, 2006 06:08 PM

» Supreme Court Rejects Guantanamo War Crimes Trials from The New Editor
The Washington Post's William Branigin reports: (emphasis added) The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U. [Read More]

Tracked on June 29, 2006 06:17 PM

Tonight C-Span has this scheduled:

U.S. Supreme Court Hamdan v. Rumsfeld Oral Argument (10:45pm)

(Time given is Eastern)


lenal

http://news.yahoo.com/s/nm/20060629/pl_nm/...HNlYwN5bmNhdA--

Court curbs Bush power, fans Guantanamo debate By Caroline Drees, Security Correspondent
Thu Jun 29, 3:48 PM ET

WASHINGTON (Reuters) - By declaring the Guantanamo Bay military tribunals illegal, the U.S. Supreme Court put fresh curbs on President George W. Bush's powers in the war on terrorism and gave ammunition to those demanding the prison be closed.

Thursday's ruling, in a case brought by Osama bin Laden's former driver, Salim Ahmed Hamdan, marks the third time the nation's highest court has placed limits on the president's powers in the fight against terrorism and dealing with prisoners at Guantanamo Bay.

The court found the tribunals, which Bush created right after the September 11 attacks, violated the Geneva Conventions and U.S. military rules.

"The administration was asserting incredibly broad, essentially plenary, executive authority in this very broadly and very nebulously defined context of the war on terror," said retired Air Force lawyer, Lt. Col. Jeffrey Walker. "This is nothing but a slap in the face of the administration."

Critics have often accused the Bush White House of using the war against terrorism to expand executive powers while curtailing congressional oversight. Among the most frequent examples they cite is a secret domestic eavesdropping program that has enraged both Republican and Democratic lawmakers.

Todd Gaziano, a Supreme Court expert at the conservative Heritage Foundation, said Thursday's Supreme Court ruling placed inappropriate limits on executive authority.

"It is profoundly disturbing that the court would take away from the commander in chief the sole discretion of determining what is militarily necessary," he said, describing the ruling as "a historical disgrace on the court."

But he said the decision would not have a major impact on the president's ability to wage the war against terrorism, since he could still resort to other procedures not denied by the court and Congress could "fix the errors that the court has read into the treaties and statutes."

THE FUTURE OF GUANTANAMO

The United States currently holds about 450 detainees at Guantanamo Bay prison, most detained without charges for more than four years. Hamdan is one of only 10 prisoners who have been charged with crimes and face the tribunal.

While the decision has no direct bearing on the future of the controversial detention center, legal and security experts say it has indirectly strengthened the hand of those demanding it be closed.

Scott Silliman, a retired Air Force attorney who is now executive director of Duke University's Center on Law, Ethics and National Security in North Carolina, said that while the ruling only affected the 10 men who were charged, it reopened the festering question of what to do with the roughly 440 others.

The Supreme Court decision quickly triggered calls by critics such as the American Civil Liberties Union, which said "the president should make good on his promise and close Guantanamo." Bush had said last week he eventually wanted to shut the prison.

"My suspicion is that the whole future of the Guantanamo structure is now in some turmoil," said Michael Krauss, a law professor at George Mason University in Virginia and a fellow at the Foundation for the Defense of Democracies, which is hawkish on national security issues.

Krauss called the ruling a "devastating defeat for the administration, and I'm not rejoicing that this is the case."

Former Air Force officer Walker, who now works in a private practice, said the ruling would probably open the door for new legal challenges to the Guantanamo system soon.

"It's coming," he said. "The next obvious issue might well be somebody trying to challenge the indefinite detention issue."

http://news.yahoo.com/s/ap/20060629/ap_on_...DMzBHNlYwM3MDM-

Bush vows to pursue detainee war trials
By TERENCE HUNT, AP White House Correspondent
Thu Jun 29, 5:00 PM ET



After a Supreme Court decision overruling war crimes trials for Guantanamo Bay detainees, President Bush suggested Thursday he would seek Congress' approval to proceed with trying terrorism suspects before military tribunals.

"To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so," he said. "The American people need to know that the ruling, as I understand it, won't cause killers to be put out on the street."

Bush said little more, saying he had received only a "drive-by briefing" on the ruling just out earlier Thursday morning.

The Supreme Court decided that Bush's proposed trials for certain detainees at the controversial U.S. prison in Cuba were illegal under U.S. law and international Geneva conventions. A separate opinion, written by Justice Stephen Breyer, appeared to invite Bush to go to Congress to seek the authority to change that, and Bush's short answer indicated that is his intention.

The president declined to say whether the decision would prompt him to more quickly follow through on his promise to close the prison, as many world leaders and human rights groups have urged.

"We will seriously look at the findings," Bush said. "And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People got to understand that. I understand we're in a war on terror, that these people were picked up off of a battlefield, and I will protect the people and at the same time conform with the findings of the Supreme Court."

White House spokesman Tony Snow said later that Bush still wants to close the Guantanamo Bay facility once the administration can determine what to do with the prisoners, and he said the Supreme Court decision does not affect that.

"This will not mean closing down Guantanamo Bay," Snow said. "There is nothing in this opinion that dictates closing down Guantanamo Bay. We're studying very careful what other implications there may be."

Bush also warned North Korea not to test-fire a long-range missile, saying Pyongyang must tell the world its intentions for any launch.

"Launching the missile is unacceptable," Bush said in the East Room news conference alongside Japanese Prime Minister Junichiro Koizumi.

Bush said that he and the Japanese leader discussed concerns about what is loaded onto the missile and where North Korea intends to aim it. He asked the North Koreas to make their plans more clear.

"There have been no briefings as to what's on top of the missile. He hasn't told anybody where the missile's going," the president said in a reference to North Korean leader Kim Jong Il. "He has an obligation, it seems like to me and to the prime minister, that there be a full briefing to those of us who are concerned about this issue as to what his intentions are."

Said Koizumi, through a translator: "Should they launch a missile, that will cause various — we would apply various pressures. ... I believe it is best that I do not discuss what specific pressures we were talking about."

Bush said the situation with Pyongyang presents an opportunity to increase global cooperation on missile defense systems.

"The Japanese cannot afford to be held hostage to rockets. And neither can the United States or any other body that loves freedom," the president said. "And so one really interesting opportunity is to share and cooperate on missile defenses."




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http://glenngreenwald.blogspot.com/

Thursday, June 29, 2006
The significance of Hamdan v. Rumsfeld

(updated below)

The Supreme Court today, by a 5-3 decision (.pdf) in Hamdan v. Rumsfeld, held that the Bush administration's military commissions at Guantanamo (a) exceed the president's legal authorization given by Congress and ( violate the law of war, including Common Article 3 of the Geneva Conventions which, the Court held, applies to all detainees in any armed conflict, including Al Qaeda members.

This is a complicated decision involving complex and sometimes arcane legal issues, and is rendered somewhat more complicated by the fact that Justice Kennedy joined in most but not all of the majority's decision [the Court's opinion was authored by Stevens and joined by Souter, Ginsburg, Breyer and (with some exceptions) Kennedy; in dissent was Scalia, Thomas and Alito. Roberts ruled in favor of the administration in the appellate court (right before he was nominated to the Supreme Court) and therefore did not participate in the ruling]. But the most significant parts of the decision were joined by five justices, rendering it binding. This is a very significant legal defeat, in several ways, for the administration. Following are preliminary observations about this decision:

(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The Court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

( More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

(4) This decision illustrates just how critical is the current composition of the Supreme Court. The decision was really 5-4 (because Roberts already ruled in favor of the administration in the lower court). The Justice who wrote the majority opinion, John Paul Stevens, is 86 years old, and as Justice Blackmun once famously warned, he "cannot remain on this Court forever." If the Bush administration is permitted to replace Stevens with yet another worshipper of executive power, the next challenge to the Bush administration's theories of unchecked power could very easily result, by a 5-4 vote, in the opposite outcome.

(5) Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.

Nonetheless, opponents of monarchical power should celebrate this decision. It has been some time since real limits were placed on the Bush administration in the area of national security. The rejection of the President's claims to unlimited authority with regard to how Al Qaeda prisoners are treated is extraordinary and encouraging by any measure. The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded.

UPDATE: A few additional points worth noting or emphasizing:

(6) Strictly speaking, the Supreme Court did not enforce the mandates of the Geneva Conventions against the administration, nor did it hold that the administration is required in the absence of Congressional mandate to comply with the Conventions. To the contrary, the Court here was enforcing Congress's "express condition," when authorizing the President as part of the UCMJ to create military commissions, "that the President and those under his command comply with the law of war." The Court was enforcing the statutory requirement against the administration that it comply with the law of war with regard to military commissions, not the Conventions themselves.

For that reason, I think Marty Lederman's claim that "the decision basically resolves the debate about interrogation techniques" might be overstated -- both because (a) one could argue that the Court's decision turns on enforcement of the UCMJ's military-commission-specific requirements, and not the provisions of Article 3 generally; and ( there is a much stronger argument to make in the interrogation area that Congress implicitly amended the Convention's requirements regarding torture (by enacting the much narrower McCain legislation governing interrogation techniques) than there is in the area of military commissions (where Congress has enacted no specific, subsequent legislation to replace the UCMJ's provisions regarding military tribunals).

Presumably, then, Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections.

Having said that, I agree with Marty that the real significance of this decision is not its effects on military commissions themselves, but the broad legal principles the decision affirms. Specifically:

(7) The more I read and think about this opinion, the greater a death blow I think it deals -- at least on the legal front -- to the administration's Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court's opinion itself, cited Justice Jackson's 3-prong Youngstown test to re-affirm the proposition that the President's constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis on what it calls "the powers granted jointly to the President and Congress in time of war" (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration's claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23):


"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Whether intended or not, that paragraph, by itself, dispenses with the central misconception -- the myth -- most frequently relied upon by Bush followers in defending the administration's violations of FISA. Specifically, they assert that cases which, pre-FISA, held that the President has inherent authority to eavesdrop mean that Congress cannot regulate that power.

But as the Court today explained -- and as Youngstown held 50 years ago -- even with regard to inherent powers he possesses, the President "may not disregard limitations that Congress . . . in proper exercise of its own war powers" imposes. That principle is based upon "the powers granted jointly to the President and Congress in time of war." Thus, even if the President possesses the power "absent congressional authorization" to, for instance, eavesdrop (or torture people), "he may not disregard limitations that Congress" imposes on such powers.

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration's theory of executive power, compare the Court's holding that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers" -- powers which include its own "war powers" -- with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:


Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.


More than anything else, the Court's opinion today is the opposite of -- a clear rejection of -- the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not "for the President alone to make."

Similarly, in his short one-page opinion -- signed by Justice Kennedy (as well as Ginsberg and Souter) -- Justice Breyer explained that absent emergency, the Constitution requires that the President comply with Congressional law even in areas which lay at the heart of national security:


Congress has denied the President the legislative authority to create military commissions of the kind at issue here. . . . Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

The (fatal) applicability of that paragraph to the administration's general theory of executive power is manifest. Just as Congress denied the President authority to create military commissions which violate the law of war, so, too, has Congress denied the President the authority to eavesdrop on Americans without warrants (and to torture detainees, etc.), and -- just as is the case with military commissions -- there is simply no legal justification for the President to ignore those laws.

http://news.independent.co.uk/world/americ...icle1147206.ece

Laws to safeguard prisoners of war, civilians and the wounded
By Robert Verkaik, Legal Affairs Correspondent
Published: 30 June 2006
The US Supreme Court's reliance on the Geneva Conventions upholds the right of captured soldiers to be treated fairly as prisoners of war.

Lawyers for the Bush administration had argued that all detainees held at Guantanamo Bay were outside the protection of the conventions because the men had been classified as "unlawful combatants".

Such a classification meant that captured terror suspects held at the US naval base in Cuba would be unable to rely on international law.

By denying them formal prisoner of war status, the US is free to interrogate them, something prohibited by the Third Convention, which requires prisoners give only their name, rank, age and number.

In a majority ruling yesterday, America's highest court disagreed with this interpretation of the men's legal status, helping to re-establish the primacy of international law over US federal law.

The Geneva Conventions are a group of international treaties designed to protect the sick or wounded, prisoners of war and civilians. They had their origin in the 19th century, when a Swiss businessman, Henri Dunant, witnessed the slaughter at the Battle of Solferino in 1859 in northern Italy, part of the struggle for Italian unification.

Mr Dunant helped treat the wounded in a church. He subsequently founded the International Committee of the Red Cross and, in 1864, the first convention for the protection of wounded soldiers was signed by 12 states.

There are four conventions, which were signed in 1949, with two additional protocols in 1977.

The First Convention was a follow-up to the 1864 agreement and protects sick and wounded soldiers. The Second extends protection to those fighting at sea. The Third, which was relevant to the judgment, covers prisoners of war and says they must be protected from harm and not prosecuted for lawful actions on the battlefield. The Fourth Convention was new in 1949 and drew on the experience of civilian suffering in Second World War. It states that civilians must not be deliberately targeted.

The US Supreme Court's reliance on the Geneva Conventions upholds the right of captured soldiers to be treated fairly as prisoners of war.

Lawyers for the Bush administration had argued that all detainees held at Guantanamo Bay were outside the protection of the conventions because the men had been classified as "unlawful combatants".

Such a classification meant that captured terror suspects held at the US naval base in Cuba would be unable to rely on international law.

By denying them formal prisoner of war status, the US is free to interrogate them, something prohibited by the Third Convention, which requires prisoners give only their name, rank, age and number.

In a majority ruling yesterday, America's highest court disagreed with this interpretation of the men's legal status, helping to re-establish the primacy of international law over US federal law.

The Geneva Conventions are a group of international treaties designed to protect the sick or wounded, prisoners of war and civilians. They had their origin in the 19th century, when a Swiss businessman, Henri Dunant, witnessed the slaughter at the Battle of Solferino in 1859 in northern Italy, part of the struggle for Italian unification.
Mr Dunant helped treat the wounded in a church. He subsequently founded the International Committee of the Red Cross and, in 1864, the first convention for the protection of wounded soldiers was signed by 12 states.

There are four conventions, which were signed in 1949, with two additional protocols in 1977.

The First Convention was a follow-up to the 1864 agreement and protects sick and wounded soldiers. The Second extends protection to those fighting at sea. The Third, which was relevant to the judgment, covers prisoners of war and says they must be protected from harm and not prosecuted for lawful actions on the battlefield. The Fourth Convention was new in 1949 and drew on the experience of civilian suffering in Second World War. It states that civilians must not be deliberately targeted.

Supreme Court Decision on Gitmo Undermines Bush’s Legal Case For Warrantless Wiretapping :

The impact of today’s Supreme Court decision on military commissions goes well beyond Guantanamo. The Supreme Court has ruled that the Authorization for the Use of Military Force – issued by Congress in the days after 9/11 – is not a blank check for the administration.
http://thinkprogress.org/2006/06/29/gitmo-wiretapping/

http://www.scotusblog.com/movabletype/arch...an_summary.html
Thursday, June 29, 2006
Hamdan Summary -- And HUGE News
Posted by Marty Lederman at 10:37 AM

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons). I have not yet read the complete opinions, but from what I've seen of not only the Stevens majority, but also the Kennedy and Breyer concurrences (see Orin Kerr with the relevant AMK and SGB excerpts here), it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

Here's the syllabus:


Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:
1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and (3)-which give the D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-“shall apply with respect to any claim whose review is … pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.

2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20-25.

3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition that he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30.

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72.
(a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. Pp. 49-52.
( The Government objects to this Court’s consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a “final decision” is appropriate. Pp. 52-53.
© Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(, which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(. The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (’s requirements could be satisfied without an official practicability determination, that subsection’s requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan’s trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839©. Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(. Pp. 53-62.
(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.
(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.
(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.
(iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.
(iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.
(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.
Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv:
1. The Government has not charged Hamdan with an “offense … that by the law of war may be tried by military commission,” 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. Pp. 30-49.
2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.
Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy,Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.


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Comments
What options does the admisitration have now?

Undoubtedly Congress could pass a statute overriding the Geneva Conventions as applied to terrorists. Does anyone really doubt Congress would be willing to do this? I can't imagine more than a handful of legislators voting for a one-sided tretay with Al-Qaeda in an election year. Or couldn't Congress make a more explicit jurisdiction-stripping provision?

Or couldn't the President unilaterally pull out of the Geneva Convention, re-enter into it it reservation stating it doesn't apply to Al-Qaeda and submit it to the Senate for ratification?

Or, the President could merely decline to try any of the detainees and just hold them for the duration of the war on terror. They could then be tried when SCOTUS is more amenable, no?

What if the President decided to shut down Gitmo and transfer all the detainees to Israel's costody, a country not hesitant to deal harshly with Islamic terrorists and which cares not a bit about international opinion. Would SCOTUS have any jurisdiction at all if that would occur?

I don't think Hamdan will have much effect in the long run on how the detainees are dealt with. The President and Congress will not let this be the last word.


Posted by: Ryan at June 29, 2006 10:59 AM


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...and there was much rejoicing (yeah)

Posted by: Stella at June 29, 2006 11:01 AM


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What I find interesting is that the opinion specifically rules against the current Military Commissions structure, but goes on to explain that standard Military Court Martials would be acceptable.

It goes on to say that Hamben can't be charged with conspiracy, because that is not a recognized international crime. However, the government can hold him for the duration of hostilities as a combatent. Based on the current pace of this war, he might end up with more time behind bars for that than he ever would have for a conspiracy conviction.

Posted by: Don_Miller at June 29, 2006 11:04 AM


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Ryan:

Just because right wingers are characterizing the recognition of Geneva convention rights as a "one-sided treaty with Al Qaeda" doesn't mean that's what happened. The Geneva accords are a multilateral treaty with most of the rest of the world. The US made promises to the rest of the world as to how it would treat captives; whether Al Qaeda itself is a party is only relevent to portions of the Convention that apply only to parties. (And even there, members of Al Qaeda might still retain rights based on whether the state of their citizenship being a party to the treaty.)

As for the remainder of your scenarios, first, let's see what the President wants to do. They've been sending some signals that they are sick of the whole GITMO situation themselves. Maybe they will use this decision as an excuse to chage their policies.

Assuming the President asks Congress for legislation, there is no chance that Congress will pull out of the Geneva Conventions. The international cost of that would be too great. Yes, I suppose the President could attempt to abrogate the Geneva Conventions, but he would risk open warfare with our own military if he did it-- FYI, the military, whatever they may think of this decision, thinks the Geneva accords are REALLY important because they set a standard that can be asserted when American forces are captured.

No, the President isn't shipping the prisoners to Israel. Not only DOES Israel care about international opinion, but they also have a Supreme Court that is even more attuned to international law than ours is. And there's also strong "hearts and minds" issus that militate against this.

What IS possible is another jurisdiction-stripping law. But stripping of jurisdiction, even if upheld by the courts, will not make commission procedures legal, only unreviewable.

Posted by: D.E. at June 29, 2006 11:14 AM


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You are right to look to the extraordinary rendition law next - it is the obvious fallback position. And as such, and because the same jurisdiction-stripping argument can be made, it must also be reviewed.

Posted by: raisin at June 29, 2006 11:25 AM


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Or couldn't the President unilaterally pull out of the Geneva Convention, re-enter into it it reservation stating it doesn't apply to Al-Qaeda and submit it to the Senate for ratification?


I doubt it. Ratifying a treaty is a power of the Senate, not the Presidency. I don't think the Presidency has the authority to nullify an act of the Senate just on his say-so.


Or, the President could merely decline to try any of the detainees and just hold them for the duration of the war on terror. They could then be tried when SCOTUS is more amenable, no?


Or just released when Mullah Omar and Bin Laden surrender and order their followers to lay down their arms.

IMO, it's more likely that the prisoners will die of old age, but that's what has been done with POWs in the past.

As a practical matter, I was under the impression that the GCs only applied when the various belligerents were party to the treaty. Al Qaeda isn't party to the GCs, and the nations the guys at guantanamo are citizens of aren't at war with the US, so they're still in a kind of fuzzy area WRT the GCs.

http://www.cfr.org/publication/11025/impac...v_rumsfeld.html

The Impact of Hamdan v. Rumsfeld

June 29, 2006

Introduction
What did the Supreme Court ruling say?
What is the significance of the Supreme Court’s ruling?
What is the background to the Hamdan case?
How will the White House respond to the Hamdan decision?
What is the White House argument for the military tribunals?
How does the decision affect the status of Guantanamo Bay and its detainees?

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Introduction
The Supreme Court has ruled that the Bush administration's decision to try detainees at Guantanamo Bay in military war tribunals is illegal. In Hamdan v. Rumsfeld the Court ruled that the military commissions do not comply with either U.S. military law or international law, specifically the Geneva Conventions, which protect the rights of detainees during wartime. The landmark decision marks the second time the country's highest court has ruled to check the power of the executive branch in its execution of the war on terror. In 2004's Hamdi v. Rumsfeld, the Court ruled the White House does not have a "blank check" to indefinitely hold and deny legal access to detainees who are U.S. citizens. The Hamdan decision is expected to have even more far-reaching consequences for the 450 detainees at Guantanamo Bay, which has emerged as a lightning rod of criticism for human rights advocates.

What did the Supreme Court ruling say?
"The rules specified for Hamdan's trial are illegal," Justice John Paul Stevens wrote for the majority in the June 29 decision, finding that the proposed military commissions comply neither with the U.S. military's Uniform Code of Justice nor the Geneva Conventions' Article III, which guarantees certain rights for the detained during wartime. Stevens wrote that the proposed commissions do not uphold the defendants' right to be present at the proceeding. "The court is saying you have to provide this basic level of fairness," says Deborah Pearlstein, director of Human Rights First's U.S. Law and Security Program. "That is, the defendant has the right to see the evidence against him. Otherwise, how do you defend yourself?" Also, the Court ruled on which offenses and under which body of law a defendant can be charged, and concluded that the charge of conspiracy [to attack civilians] is not a recognizable offense under international war crimes law. "A basic principle of international law is you can't try someone for an offense that's not defined," Danchin says. On the dissenting side, Justice Clarence Thomas said the Court's decision will "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

What is the significance of the Supreme Court’s ruling?
The ruling is seen by some as a significant check on the powers of the president during wartime. "The Supreme Court has basically knocked out a plank in the [Bush] administration's war-on-terrorism apparatus," says Peter Danchin, an international law expert at Columbia University. "This is a sweeping decision that the Court has issued," Pearlstein says. "It supports the proposition not only that these military commissions are inconsistent with federal statutes and U.S. treaty obligations, but also with the broader basic principle that mere assertions of military necessity are not sufficient to overcome serious judicial review of a president's conduct." Effectively, the Supreme Court decision requires that detainees at Guantanamo Bay be tried not by a military tribunal, but rather by a domestic court martial—or repatriated back to their home country and tried there. The ruling may also accelerate the decision to shut down the facility at Guantanamo Bay.

What is the background to the Hamdan case?
Salim Ahmed Hamdan, a Yemeni bodyguard and driver for Osama Bin Laden, was captured by U.S. forces in Afghanistan in November 2001. Hamdan was charged in July 2004 with conspiracy to attack civilians and commit acts of terrorism, and has been held at Guantanamo Bay since 2002. He claims he is innocent and has called into question his status as an "unlawful combatant." "The fundamental concept is: What did [Hamdan] do that violated some principal of international law?" asks Raymond Brown, an expert on international humanitarian law at Seton Hall University. "Proximity to Bin Laden? They don't seem to be able to link him to some violation of the laws of war, which is what they need to do." Hamdan's lawyers claim the military commissions are unlawful under Article III of the Geneva Conventions and do not uphold basic military justice protections for wartime detainees. A U.S. Court of Appeals, which included current Chief Justice John Roberts, rejected an appeal by Hamdan last summer, claiming that the Geneva Conventions do not apply to members of al-Qaeda.

How will the White House respond to the Hamdan decision?
Bush has said in recent interviews he wants to close Guantanamo. He said after the ruling he would consult with Congress to find a way forward. "I will protect the people and at the same time conform with the findings of the Supreme Court," Bush said. Some members of Congress have suggested passing legislation that authorizes special military courts for Guantanamo detainees. "It's back to the drawing board for this administration," Brown says. "[The ruling has] opened up the process for rethinking clearly the precedent of military tribunals." Some legal experts say the decision may privately benefit the White House because of Guantanamo Bay's growing unpopularity, both in America and abroad. "This is a political liability for [President Bush]," Danchin says. Adds Pearlstein: "The administration may decide enough is enough, because it's under tremendous international pressure, and may pick some standard and less problematic way to try them."

What is the White House argument for the military tribunals?
White House lawyers have said military commissions are required because of the security threat posed by these prisoners, whom they define as "unlawful combatants," and the sensitivity of the evidence presented, which could endanger U.S. personnel in the field and hinder intelligence gathering. Some legal experts say these arguments are problematic. "If, in a particular case, the introduction of evidence is a serious and a demonstrated threat," Pearlstein says, "that's for court and judge to address in case-by-case basis." Danchin suggests the White House may favor military tribunals because the bar there is set lower for a conviction than in courts martial or criminal courts, which require more evidence to convict.

How does the decision affect the status of Guantanamo Bay and its detainees?

Of the roughly 450 detainees at Guantanamo Bay, around sixty-five are under consideration for military trials. All of the trials will be stayed because of the Supreme Court ruling, and the U.S. government will have to devise a new procedure to try the detainees. The ruling makes no mention of the future status of the Guantanamo Bay naval base. Pearlstein says "there's no question this will further accelerate the process [of the base's closure]." Still, Brown says the Bush administration "has no intention of releasing the remaining detainees because we haven't gotten to the bottom of what's the proper way to treat people connected to terrorist activity." The White House may argue that the United States is still technically at war against the Taliban in Afghanistan, and can therefore continue holding its detainees indefinitely at Guantanamo Bay. Should it decide to shut down its detention facility there, it may send the detainees to their host countries to be charged, or, as Brown fears, it may send them—through rendition—to "ghost facilities around the world." The White House has refused to send detainees back to countries where they may be tortured, which explains the presence of five Chinese Uighurs who were recently released from Guantanamo Bay but are now in legal limbo in Albania.


Copyright 2006 by the Council on Foreign Relations. All Rights Reserved.

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Supreme Court Ruling May Not Slow White House
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By Doyle McManus, Peter Wallsten and Richard B. Schmitt
Times Staff Writer

June 29 2006, 6:37 PM PDT

Washington -- Since the 2001 terrorist attacks, President Bush has asserted almost unlimited authority to define the rules of what he calls "a different kind of war." And, faced with the Supreme Court's rejection of administration policies on "enemy combatants" Thursday, the White House signaled that it had no intention of backing down.

The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines

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Pentagon Lawyers Fought Hard-Liners on Rules of War
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By Julian E. Barnes
Times Staff Writer

June 29 2006, 6:46 PM PDT

For four years, they waged what may have been the loneliest fight in the war on terror. Facing White House hard-liners intent on finding novel ways to deal with enemy combatants, this group -- the armed services' own lawyers -- fought the administration's attempt to rewrite the rules of war.

The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines

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Q&A: The Ruling and Its Effects
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By Michael Muskal
Times Staff Writer

June 29 2006, 2:32 PM PDT

The U.S. Supreme Court today handed up what is likely to become a major decision dealing with the powers of the different parts of government in times of war. Here are some of the basic questions involved in the ruling.

The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines

http://www.salon.com/opinion/feature/2006/06/30/hamdan/

The Supreme Court clips Bush's war wings
In a major rebuke to the president's draconian tactics, the court rules that secret military tribunals for terror suspects fundamentally violate U.S. and international law.

By Walter Shapiro


June 30, 2006 | WASHINGTON -- It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists -- for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals. Now four and a half years later, the Supreme Court's end-of-the-session decision in Hamdan v. Rumsfeld both rejected these military tribunals and quickened the hearts of civil libertarians.

Read narrowly, the court's ruling applies only to the roughly 450 prisoners held at Guantánamo. In fact, Thursday's decision does not even guarantee any kind of trial for these detainees. As Justice Paul Stevens noted in his majority opinion, "Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." Yet such a gimlet-eyed interpretation may be the equivalent of believing that Brown v. Board of Education applies only to schools in the greater metroplex of Topeka, Kan.

It is possible that Hamdan may someday be seen as the turning point in repudiating the Bush-Cheney view that all branches of government are equal but some are more equal than others. An optimist could find persuasive evidence in the decision that the Supreme Court was, in effect, saying to the White House: "Enough of your cockamamie theories about the all-powerful president in wartime. Enough of your cloud-cuckoo readings of the resolution that Congress passed after Sept. 11. And enough of your cataclysmic claims that the war against al-Qaida requires a wanton disrespect for international law and the norms of civilized behavior."

Of course, the Supreme Court tends to be more Delphic than direct. Any quick-off-the-mark interpretation of Hamdan should be regarded as the first rough draft of legal theory rather than settled jurisprudence. This complex 5-3 decision was still being read in detail by the law professors and legal scholars who were simultaneously being asked to comment on its meaning.

Probably the most compelling passage in Stevens' opinion is this four-word sentence: "That reasoning is erroneous." The octogenarian justice was rejecting the government's cherished argument that not one syllable of the Geneva Conventions applies to alleged al-Qaida captives at Guantánamo. Stevens held that, at minimum, Hamdan and his companions on the American-held tip of Cuba are covered by the portions of the Geneva Conventions that regulate the treatment of prisoners in civil wars and similar conflicts.

Marty Lederman, a Georgetown law professor who contributes to SCOTUSblog, was among the first to grasp the implications of the Geneva Conventions portion of the opinion. As Lederman recounted in a Thursday afternoon interview, "When I saw it, I thought it was the big kahuna." Under Lederman's reasoning, if al-Qaida members are covered by at least portions of the Geneva Conventions, as the opinion confirms, then so would be American soldiers and CIA operatives. Not only do these treaties set fair-trial standards for military commissions, but they also (much to the horror of Cheney and company) mandate the humane treatment of prisoners.

"After today, any waterboarding will open you up to a possible war-crimes prosecution," said Lederman, who served in the Clinton and Bush Justice Departments. He expressed the tentative view that Thursday's decision probably could not be used retroactively to punish anyone for employing extralegal interrogation techniques. But Lederman added, "I wish I could see the memos that are going out today from the CIA to the field."

In the Hamdan decision the court also vigorously dismissed the claim that Congress had already ceded to the president any power he wants to assert under the guise of battling al-Qaida. Jeffrey Rosen, a law professor at George Washington University and the author of "The Most Democratic Branch," a just-published portrait of the Supreme Court, said, "They completely rejected the notion that the president can do whatever he likes because of the post-9/11 'Use of Force' resolution."

Significant as this ruling is, decisions like Hamdan do not by themselves instantly transform behavior as if they were a fiat from Mount Sinai. Their broader implications are bound to be tested in the courts and challenged by the administration. If Congress and the voters lack the political will to act on the Hamdan precedent, then Thursday's decision will probably be remembered as a momentary flicker of judicial independence in the era of a "laws only apply to little people" presidency.

But, for the moment, the Supreme Court in its robed majesty has rebuked the White House. As Michael Posner, the president of Human Rights First, put it, "They challenged the global notion that there's war and that there's law -- and that war trumps law."

The court has played its trump card. Now the question remains: Who will follow suit?

http://www.nytimes.com/2006/06/30/washington/30assess.html

News Analysis
Court's Ruling Is Likely to Force Negotiations Over Presidential Power

By DAVID E. SANGER and SCOTT SHANE
Published: June 30, 2006
WASHINGTON, June 29 — The Supreme Court's Guantánamo ruling on Thursday was the most significant setback yet for the Bush administration's contention that the Sept. 11 attacks and their aftermath have justified one of the broadest expansions of presidential power in American history.

President Bush and Vice President Dick Cheney spent much of their first term bypassing Congress in the service of what they labeled a "different kind of war." Now they will almost certainly plunge into negotiations they previously spurned, over the extent of the president's powers, this time in the midst of a midterm election in which Mr. Bush's wartime strategies and their consequences have emerged as a potent issue.

The ruling bolsters those in Congress who for months have been trying to force the White House into a retreat from its claims that Mr. Bush not only has the unilateral authority as commander in chief to determine how suspected terrorists are tried, but also to set the rules for domestic wiretapping, for interrogating prisoners and for pursuing a global fight against terror that many suspect could stretch for as long as the cold war did.

What the court's 5-to-3 decision declared, in essence, was that Mr. Bush and Mr. Cheney had overreached and must now either use the established rules of courts-martial or go back to Congress — this time with vastly diminished leverage — to win approval for the military commissions that Mr. Bush argues are the best way to keep the nation safe.

For Mr. Bush, this is not the first such setback. The court ruled two years ago that the giant prison at Guantánamo Bay, Cuba, was not beyond the reach of American courts and that prisoners there had some minimal rights.

Then, last year, came the overwhelming 90-to-9 vote in the Senate, over Mr. Cheney's strong objections, to ban "cruel, inhumane and degrading" treatment of prisoners. That forced Mr. Bush, grudgingly, to reach an accord with Senator John McCain, Republican of Arizona, on principles for interrogation, which are still being turned into rules.

As seen by Mr. Bush's critics, the court has finally reined in an executive who used the Sept. 11 attacks as a justification — or an excuse — to tilt the balance of power decidedly toward the White House.

"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."

Some allies of Mr. Bush reacted bitterly on Thursday, asserting that it was the court, rather than Mr. Bush, that had over-reacted.

"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford A. Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."

At least rhetorically, the administration is giving no ground about the reach of the president's powers. Just 10 days ago, speaking here in Washington, Mr. Cheney cited the responses to Watergate and the Vietnam War as examples of where he thought Congress had "begun to encroach up on the power and responsibilities of the president," and said he had come to the White House with the view that "it was important to go back and try to restore that balance."

Since taking office, Mr. Bush and Mr. Cheney have largely tried to do so by fiat, sometimes with public declarations, sometimes with highly classified directives governing how suspects could be plucked from the battlefield or, in the case decided on Thursday, how they would be tried. The president's tone on Thursday, during a news conference with Prime Minister Junichiro Koizumi of Japan, suggested that he recognized he might now have to give ground.

Mr. Bush said he would be taking "the findings" of the Supreme Court "very seriously."

"One thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people," he said. But then he backtracked a bit, saying that he would "work with Congress" to give legal foundation to the system he had already put in place.

To some degree, the court may have helped Mr. Bush out of a political predicament. He has repeatedly said he would like to close the detention center at Guantánamo, a recognition that the indefinite imprisonment of suspects without trial and the accusations that they have been mistreated were seriously undercutting American credibility abroad. But he set no schedule and said he was waiting for the court to rule.

"The court really rescued the administration by taking it out of this quagmire it's been in," said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

Now Congress, with the court's encouragement, may help the president find a way forward. For Senator Lindsey Graham, Republican of South Carolina, who said a legislative proposal on military commissions he sent to the White House 18 months ago "went nowhere," the ruling was a welcome restoration of the balance of power.

"The Supreme Court has set the rules of the road," Mr. Graham, a former military lawyer, said, "and the Congress and the president can drive to the destination together."

Supporters of the president emphasized that the question of how to balance suspects' right against the need for intelligence on imminent attacks was always a daunting challenge, and that the ruling did not change that.

In fact, said Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel in 2003 and 2004, the fact that no second attack has occurred on American soil is an achievement of the administration that is now complicating its political situation.

"The longer the president and the administration successfully prevent another attack," Mr. Goldsmith said, "the more people think the threat has abated and the more they demand that the administration adhere to traditional civil liberties protections."

In today's less panicky national mood, tough measures that few dared question as American forces first moved into Afghanistan, then Iraq, are now the subject of nightly debate on cable television and of a small flotilla of court challenges.

But history suggests that this pendulum swing was inevitable. It took years, but history came to condemn the internment of Japanese-Americans during World War II, and to question Lincoln's suspension of habeas corpus during the Civil War.

Sooner or later, that same reversal was bound to happen to Mr. Bush and Mr. Cheney. The question is how far it will swing back while they are still in office and while what Mr. Bush calls "the long war" continues around the globe.

There is nothing like hearing the arguments one's self, tune in now to C-span.


lenal

http://balkin.blogspot.com/2006/06/hamdan-...g-decision.html

Hamdan as a Democracy-Forcing Decision


JB


The key to understanding Hamdan is that the Court did not tell the President that he could under no circumstances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." As Justice Kennedy's concurrence points out, the latter requirement dovetails to some degree with the UCMJ's requirement of uniformity between what we do for our own soldiers and what we do for people like Hamdan. The courts have to be regularly constituted, i.e., they can't be special purpose fly-by-night courts with their own made up procedures, and the procedures have to comport with basic guarantees of fairness, as, one presumes, our court martial system does.

The reason why the President is bound by these requirements is because Congress passed the UCMJ and because the UCMJ uses the laws of war-- which include the Geneva Conventions-- as a benchmark for procedures in military commissions. So when Congress acts under its constitutional authority to regulate military justice, as it has throughout the country's history, the President must abide by those regulations. Presumably, then, the Court has rejected the Article-II-on-steroids theory that John Yoo and others have offered-- that Congress may never interfere with the President's views about how best to run the military (even and including Presidential decisions to torture detainees, which was the subject of the infamous OLC torture memo). Hamdan holds that the President may not disregard the UMCJ even if it limits his discretion regarding how to deal with persons captured on the battlefield.


But note: If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.


What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.


I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.




Posted 1:07 PM by JB [link]





--------------------------------------------------------------------------------

Comments:


That's exactly right. Indeed, in addition to being completely ignorant of the text of Article I Section 8 of the Constitution (which expressly puts Congress in charge of regulating the armed forces and regulating captures), "unitary executive" theories like those of John Yoo ignore that there is a REASON to repose some of the war powers in Congress, and that is to ensure that the general public maintains control of the government by forcing debate on war policies.

The President didn't go to Congress with his detention policies because if you go to Congress, even when your party controls it, you may not get everything you want, and things that you might want to do that are unpopular may get stripped out of the bill. Indeed, the President was even forced to cut back somewhat with respect to the AUMF and the Patriot Act.

Yoo and Clarence Thomas and other conservatives may be horrified that the President is ever forced to cut back in a wartime situation. But in the context of any sort of democratic theory, it is perfectly plausible and appropriate. If the President is doing what the public wants, not only in general but in all particulars, the bill will sail through Congress. But if the public wants to put limits on the President's conduct, the only way to do it is to require that Congress have a role. (Presidential elections occur only once every 4 years and in any event, there are too many issues inovled in the campaigns for them to force real accountability on specific war policies.) Right-wingers have not explained how they could possibly have a problem with the PUBLIC being able to stop the President from overstepping his or her bounds.

# posted by Dilan : 2:20 PM





The problem I have here is with the jurisdiction. Jurisdiction-stripping is democracy-enhancing, too. Clearly, Congress and the President did not want the Court to reach the merits of the decision. So, the Court pretending to interpret Congressional intent and perceiving conflict bewteen Congress and the President is a bit of a legal fiction. And, this is the commentary of someone who agrees with the Court on the merits. I still think the Court overstepped its authority, precisely because it decided the case on a statutory basis. I wonder what would happen if Congress and the President ignored the decision because the Court had no jurisdiction to hear it?

# posted by CriticalObserver : 4:39 PM





While Breyer's concurrence takes pains to make the point Professor Balking emphasizes here, it is not the case that this decision necessarily clears the way for Congress and the President to enact a patently unfair and unnecessary detention scheme. Any such scheme must still meet constitutional minima - if those subject to the scheme are deemed protected by those minima. Hamdi and Rasul essentially declare that enemy aliens detained at Guantanamo are entitled to procedural due process protections. Due process, though a flexible concept (under Mathews, and post-Eisentrager), will still prohibit grossly unfair schemes unsupported by clear governmental necessity. That is, so long as 5 justices still disagree with Scalia's view of enemy aliens.

# posted by christor : 4:53 PM





What do the learned owner and readers of this blog have to say about the relevance of Article VI of the US Constitution that says that all ratified treaties have equal standing with the Constitution as the “supreme Law of the Land.”

Don’t the Geneva Conventions qualify as ratified treaties? I think so, but I don’t know for sure, but if they do then Congress passing a statute going against Geneva would be unconstitutional under Article VI. Wouldn’t it?

# posted by Joe : 5:20 PM





"I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do."

I agree with this interpretation of Hamdan. But surely we shouldn't take Hamdan to mean that the President could do whatever he wants to do with Mr. Hamdan as long as Congress can be seen to have authorized it.

For example, could the President have decided Hamdan's fate by coin flip? It seems to me that underlying the decision was a disgust at the way the trials were set up and operate, with the Congressional authorization argument being a less controversial ground for decision than claiming that due process protects aliens like Hamdan from arbitrary imposition of punishment.

# posted by Milan : 6:24 PM





Just because Hamdan did not itself impose a constitutional limitation, does not mean that there is not some constitutional limitation lurking, and indeed, informing the U.S. Supreme Court's jurisprudence.

Indeed, the doctrine of constitutional avoidance was applied in Hamdan to avoid the lurking issues of the constitutionality of the Detainee Treatment Act of 2005 by holding that ambiguities should be resolved in finding that it does not apply to pending cases, but instead applies only prospectively.

Foremost among the constitutional issues lurking is that behind the Detainee Treatment Act. Does there exist an invasion or insurrection such that Congress has the power to suspend the writ of habeas corpus, and can Congress achieve a de facto suspension through jurisdiction stripping?

Likewise, nothing on its face, limited the 8th Amendment prohibition on cruel and unusual punishment to civilian settings. The Geneva Conventions made the previously remarkable leap of insight that cruelty can be prohibited, even when it is permissible to kill at the time of capture but that option is not chosen by the capturing state. Torture, of course, is just the sort of cruel act that the Bill of Rights drafters had in mind when the 8th Amendment was adopted.

Similarly, it is not at all clear that the entirely arbitrary military punishment that gave rise to the word decimate, could every be constitutionally permissible under U.S. law.

The decision chooses to be democracy forcing to great extent in the hope that this will avoid the necessity to reach the constitutional issues because Congress probably won't choose to go there.

# posted by Andrew Oh-Willeke : 6:32 PM





Joe. Article VI doesn't say what you think it does. The case law has held that the Constitution can not be superceded by either treaty or statute. But, unlike almost every other nation, U.S. law does permit Congress to unilaterally abrogate a validly ratified treaty with a mere statute.

# posted by Andrew Oh-Willeke : 6:34 PM





Well Andrew there are still some big problems with abrogating Geneva:

* "Each of the High Contracting Parties shall be at liberty to denounce the present Convention.

"The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties.

"The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.

"The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience."
Geneva III art. 142, Geneva IV art. 158.

* They would also have to abrogate the London Charter of the IMT (1945)(aka Nuremberg Principles), which were adopted by the UN as General Assembly Res. 95(I)(1946).

* Then there's Hague IV (1907) and the laws and customs of war, none which support the criminal policies of the Bush administration.

* There's even UN Security Council Res. 1674 (2006), though of course the administration would claim that these guys aren't civilians, when in fact they clearly are exactly civilians unless you treat them as POWs under Geneva III.

* Ever hear of Alstoetter or Uchiyama?

# posted by Charles Gittings : 8:22 PM





The main point here is the Court has blown a hole in the Yoo unitary executive theory.

Its not just the tribunals that were shot down, it was the use of torture in interrogations. It is going to be remarkably hard for the administration to claim that it has not been humiliating the prisoners - prohibited under the convention and thus according to US law a war crime.

McCain and Graham are not fools, they are not going to allow a bill to go through that allows the use of evidence extracted through torture, nor are they going to authorize a 'commission' that can hear secret evidence.

It is highly unlikely that any of the 'evidence' that has been gathered at Gitmo is not contaminated by the use of or well founded fear of torture during interrogations.

The reason that the administration had to set up these kangeroo courts in the first place is that any regular system would put their own actions on trial.

The one unfortunate side effect of this decision is that it might well penetrate the bubble of happy talk that the bush admin peons surround their leader with and cause Bush to realize that it is not unlikely that Rumsfeld, Cheney and possibly even Bush himself might face War crimes charges in the future. It appears that there is a general assumption that there will be a Presidential pardon, I doubt that the need has been explained to W.

# posted by Phill H-B : 10:52 PM





See IMT arts 7-8 supra: there is no pardon or executive immunity for war crimes.

Not for Nazis, not for Saddam, and not for Bush and his gang... And in the event the US Supreme Court ever holds otherwise, not for them either. Note that their jurisprudence in Quirin is rather explicit on this point IRT Geneva and the customary laws of war, and that the supremacy clause isn't exactly a caveat here.

OTOH, if push comes to shove, we can always extradite them to Iraq -- I'm sure any future Iraq government would be only to happy to give them a fair trial.

But I also think it is imperative to our national honor and the integrity of the rule of law that we take care of this ugly mess ourselves in order to extablish a precendent that will make people like Dirty Dick and Curious George think twice in the future.

# posted by Charles Gittings : 2:43 AM

http://www.usatoday.com/news/opinion/edito...29-oppose_x.htm

5 wrong justices

By John Yoo
By putting on hold military commissions to try terrorists for war crimes, five Supreme Court justices have made the legal system part of the problem, rather than part of the solution to the challenges of the war on terrorism. They tossed aside centuries of American history, judicial decisions of long standing, and a December 2005 law ordering them not to interfere with the military trials.
OUR VIEW:Suspects deserve fair trials

As commander in chief, President Bush has the authority to decide on wartime tactics and strategies. Presidents Washington, Jackson, Lincoln and FDR settled on military commissions, sometimes with congressional approval and sometimes without, as the best tool to punish and deter enemy war crimes. Bush used them to solve a difficult tension: how to try terrorists fairly without blowing intelligence sources and methods.

The circus that was the trial of Zacarias Moussaoui shows the dangers in trying to use normal courtroom rules to prosecute terrorists intent on harming the USA. Bush's decision was supported by Congress, which authorized the president to use force in response to the Sept. 11 attacks. Earlier, Congress had recognized commissions in the Uniform Code of Military Justice, and last year it created an appeals process for them.

What the justices did would have been unthinkable in prior military conflicts: Judicial intervention in the decisions of the president and Congress on how best to wage war. They replaced his wartime judgment and Congress' support with their own speculation that open trials would not run intelligence risks. Their decision to impose specific rules and override political judgments about military necessity mistakes war — inherently unpredictable, and where our government must act quickly and sometimes secretly to protect national security — for the familiarity of the criminal justice system.

Two years ago, the same justices declared they would review the military's detention of terrorists at Guantanamo Bay. Congress and the president expended time and energy to overrule them. Hamdan will force our elected leaders to go through the same exercise again, effort better spent preventing the next terrorist attack.

John Yoo, a law professor at the University of California, Berkeley, served in the Justice Department in 2001-03.

Posted 6/29/2006 10:46 PM ET
Updated 6/29/2006 11:25 PM ET E-mail | Save | Print | Subscribe to stories like this

http://writ.news.findlaw.com/dorf/20060630.html

The Hidden--and Obvious--Lessons in the Supreme Court's Divided Ruling Invalidating Military Commissions
By MICHAEL C. DORF
----
Friday, Jun. 30, 2006

The Supreme Court's decision yesterday in Hamdan v. Rumsfeld is, to state the obvious, a major setback for the Bush Administration's bid for power to deal with foreign captives by whatever means it, and it alone, deems appropriate.

Less obviously, the case may have far-reaching implications for numerous fundamental questions of law. But much depends on how the Administration and Congress react to the decision. Congress' impact will be felt both through the laws it passes and through the Justices the Senate confirms--or refuses to confirm--in the future.



After summarizing the ruling, I'll highlight six important aspects of the decision.

The first three aspects suggest a far-reaching defeat for the President: (1) The decision treats World War II precedents upholding military commissions as all but dead letters, affirming the primacy of ordinary civilian courts and formally-constituted courts martial; (2) The decision utterly rejects the Bush Administration's frequently invoked and sweeping claim that there is "inherent Executive Authority" to act unilaterally in matters of national security, recognizing instead that the Constitution gives Congress the leading role in establishing the rules for treatment of captives; (3) The decision finds the Geneva Conventions applicable to suspected al Qaeda captives in Afghanistan, thus implying that methods of interrogation that have been used against them constitute war crimes.

But if the foregoing propositions suggest that the Court dealt the Administration's dreams of unfettered power a crippling blow in Hamdan, three additional aspects of the decision should give the reader pause: (4) The ruling in no way disturbs the authority of the Administration to hold captives at Guantanamo Bay, so long as it does not put them on trial; (5) The ruling can possibly be evaded with respect to captives detained in places beyond the reach of the writ of habeas corpus; and (6) The ruling was essentially 5-4, meaning that the long-term willingness of the Supreme Court to stand up to the President may well depend on the identity of the next Justice to be nominated and confirmed.

The Hamdan Ruling, in an Eleven-Piece Nutshell

Salim Ahmed Hamdan, was delivered to U.S. military forces in Afghanistan in late 2001; detained at the U.S. Naval Base at Guantanamo Bay, Cuba; and eventually charged with conspiracy to attack civilians in his alleged capacity as driver and bodyguard for Osama bin Laden. Hamdan argued that the special military commissions established by the Bush Administration to try persons like himself were illegal, but lost in the Court of Appeals where John Roberts, then a Circuit Judge, joined a decision finding, among other things, that Hamdan's claims were premature. Because of his earlier participation, now-Chief Justice Roberts took no part in yesterday's decision.

Last December, while Hamdan's case was pending before the Supreme Court, Congress enacted the Detainee Treatment Act of 2005. Best known for its prohibition of torture, the Act also set strict limits on the ability of Guantanamo Bay detainees to bring actions in federal court challenging their confinement or the procedures used to adjudicate their guilt. The threshold issue in Hamdan was whether those limits applied to already-filed cases.

The Court ruled that they did not. Justice Stevens wrote the lead opinion, which Justices Souter, Ginsburg, and Breyer joined in full, and which Justice Kennedy--true to form as the crucial swing vote on the post-O'Connor Court--joined in part. Justices Scalia, Thomas, and Alito dissented from nearly every important aspect of the Court's ruling.

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Justice Stevens garnered a full, five-Justice majority for the following nine propositions:

(1) The Detainee Treatment Act did not strip the Supreme Court of jurisdiction;

(2) Military commissions other than ordinary courts-martial of the sort authorized by the Uniform Code of Military Justice (UCMJ) are constitutionally permissible only if warranted by military exigency or Act of Congress;

(3) Given Hamdan's detention for years, far away from an active battlefield, no exigency warranted the use of military commissions in his case;

(4) No Act of Congress authorized the military commissions;

(5) Indeed, the Uniform Code of Military Justice, by incorporating the international law of war, made the so-called "common Article 3" of the Geneva Conventions, governing treatment of prisoners and non-combatants, applicable to any effort to try combatants for war crimes;

(6) Common Article 3 applied notwithstanding the guerilla tactics of al Qaeda, because the conflict occurred in Afghanistan, a territory covered by the Convention;

(7) Accordingly, detainees could only be tried before a tribunal that afforded the same protections as a court martial, absent impracticability;

(8) The commissions manifestly failed to afford the same procedural protections as courts martial;

and

(9) The Administration had offered no persuasive evidence of the impracticability of using courts martial or their equivalent.

In portions of the lead opinion that Justice Kennedy did not join--because he thought them unnecessary to the resolution of the case--and that therefore represent the views of only four Justices, Justice Stevens also made two further determinations:

(10) Relying on an argument made in a forceful amicus brief principally authored by my Columbia Law School colleague George Fletcher, four Justices would have ruled the indictment invalid on the ground that conspiracy, standing alone and without any charge of overt acts by the person charged during the wartime period, is not a recognized war crime;

and

(11) The military commissions were defective because they would have permitted important portions of the trial to occur outside the presence of the accused. (Although Justice Kennedy shared the majority's disapproval of other procedural differences between the military commissions and courts martial--especially the dependence of the former on persons within the chain of command--he did not reach the plurality's conclusion that they were defective for this further reason.)

Each of the foregoing eleven propositions was supported by detailed arguments, and the three dissenting opinions attempted to cast doubt on all of them. Rather than analyze each of the arguments and counter-arguments in detail, I turn now to six features of the case that make it significant.

Narrowing the World War II Precedents

Ever since the Bush Administration decided that military detention and military commissions would feature in its response to the attacks of September 11, 2001, the Administration has invoked three World War II-era cases as support for its approach. The cases are Ex Parte Quirin (sometimes called the "Nazi saboteur case"), In Re Yamashita, and Johnson v. Eisentrager. In each, the Court ultimately rejected a challenge to the outcome of a military tribunal.

Critics of the Administration policies had urged the Supreme Court to repudiate its World War II-era jurisprudence and return to the basic principles announced in a Civil War Era case, Ex Parte Milligan. In Milligan, the Court stated, in sweeping terms, that where no military emergency prevents the civilian courts from operating, military courts are unconstitutional.

Justice Stevens did not exactly oblige these critics in Hamdan, but he may have given them something better: Without overruling any of the World War II cases, he said that, in important respects, they had been rendered inapplicable by changes in federal law and the international law of war. Further, he actually invoked these cases to bolster his arguments in light of those changes.

Affirming the Role of Congress

Hamdan was also a blow to the Administration's broad assertion of Presidential power. In Presidential signing statements and other contexts, the Bush Administration has repeatedly claimed that as the Commander in Chief of the armed forces, the President has broad discretion to act in military matters.

That claim is partly right but mostly misleading. As I explained in an earlier column, there is an important difference between, on the one hand, the President's power to act to defend the country where Congress has remained silent or authorized his action, and, on the other hand, the President's attempts to act in a manner contrary to Congressional mandate. In the latter case, Supreme Court case law has repeatedly made clear, the President cannot act contrary to a valid enactment of Congress.

In both the lead opinion of Justice Stevens and the concurring opinion of Justice Kennedy, the Hamdan Court reaffirmed this bedrock principle. The Constitution expressly gives to Congress the power to "make Rules concerning Captures on Land and Water." The UCMJ does just that, and accordingly, the Court ruled, the President's status as Commander in Chief gives him no authority to contravene the UCMJ or the international law of war that it incorporates.

Thus, yesterday's decision must be understood as having not all that much to do with individual rights, and everything to do with separation of powers. As both Justice Kennedy and Justice Breyer emphasized in their respective concurring opinions, if the President truly needs the powers he asserted in Hamdan, Congress can give them to him.

The Applicability of the Geneva Conventions

The Court (including Justice Kennedy on this point) found the Geneva Convention's requirement that enemy detainees be tried, if at all, by tribunals equivalent to civilian courts or regular courts martial, applicable to alleged al Qaeda members. Although not directly relevant to the Hamdan case itself, that determination may have grave collateral consequences for military and CIA personnel who have used extreme methods of interrogation on captives.

Common Article 3 also requires that detainees "shall in all cases be treated humanely." This provision certainly bans torture and equally certainly bans the forms of interrogation--such as "waterboarding," which simulates the experience of drowning--that the Administration is widely believed to have authorized, under the supposition that the Geneva Conventions do not apply.

As Justice Kennedy stated straightforwardly, yet ominously for the Administration: "By Act of Congress . . . violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel," and "there should be no doubt . . . that Common Article 3 is part of the law of war as that term is used in" the UCMJ.

Indefinite Detention Remains an Option

Human rights organizations and countries whose nationals are being held at Guantanamo Bay have already seized upon yesterday's ruling as a ground for the Administration to close the prison there, an option that even President Bush has previously stated he would like to pursue.

Yet the Hamdan ruling in no way casts doubt on the ability of the government to detain alleged enemy combatants at Guantanamo. The majority conceded that persons who have fairly been determined to be enemy combatants can be held so long as hostilities last. Given continuing conflict in Afghanistan, not to mention the broader "war on terror," that means the Guantanamo Bay prison can remain open for business.

Thus, Hamdan may seem worse than a pyrrhic victory. Imagine you were told that the government cannot put you on trial for a crime because the court was defective, but that it could hold you without trial indefinitely. You would no doubt feel that your "victory" had taken you out of the frying pan and thrown you into the fire.

Perhaps the best that can be said in this regard is that the Hamdan ruling adds to the moral authority of those who want to see the Guantanamo Bay prison closed.

The Secret Prison Alternative

Even without new assistance from Congress, the Administration may be able to circumvent the Hamdan ruling by the simple expedient of moving the Guantanamo Bay prisoners to one of the (no-longer-very) secret prisons in Eastern Europe or elsewhere.

In its 2004 ruling in Bush v. Rasul, the Supreme Court held that federal courts had jurisdiction over habeas corpus petitions filed by aliens held at Guantanamo Bay. That ruling was based in part on the Justices' refusal to apply the presumption that statutes lack extraterritorial effect: Because the United States exercised sovereignty in all but name over Guantanamo Bay, they said, application of the habeas statute to petitions originating there does not count as extraterritorial.

Suppose, then, that the Administration moved the Guantanamo Bay detainees to a prison in a friendly Eastern European country. Might the presumption against extraterritoriality then bar the filing of a habeas petition? The Rasul case leaves this possibility open.

Accordingly, it is possible that the Administration could find a way to try captives by military commission abroad in manifest violation of the Hamdan ruling, but that the courts would be powerless to stop such trials, because they would lack jurisdiction to hear the complaint.

The Precariousness of the Hamdan Majority

The Hamdan case was decided by a 5-3 margin but it is quite clear that if Chief Justice Roberts had not been recused, he would have voted with the dissenters. After all, he voted against Hamdan's claims as an appellate court judge just last year. Thus, going forward, the case should be regarded as resting on a single vote.

Justice Stevens, the author of Hamdan, is 86, and though he appears to be in remarkably good shape, rumors of his imminent retirement inevitably circulate.

To be sure, even if one of the Justices in the Hamdan majority should retire in the near future, one or more of the dissenters might choose to leave the result in place out of respect for precedent. But on the broader question of how to understand the Constitution's allocation of power between the President and Congress, there is no reason to think that any of the Hamdan dissenters would soften his pro-President view.

We may rightly regard Hamdan as a victory for the principle of checks and balances. Whether it remains a lasting victory will depend very much on how seriously the Senate takes that very principle, if and when it next confronts a Supreme Court nominee with a commitment to broad Presidential power.



Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law Versus Politics in the 21st Century.

http://www.informationclearinghouse.info/article13814.htm
-- -- --

Did Bush commit war crimes?

Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.

By Rosa Brooks

06/30/06 "Los Angeles Times" -- -- THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.

But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.

The provisions of the Geneva Convention were intended to protect noncombatants — including prisoners — in times of armed conflict. But as the administration has repeatedly noted, most of these protections apply only to conflicts between states. Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn't apply to the war on terror. These assertions gave the administration's arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn't apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.

This novel theory served as the administration's legal cover for a wide range of questionable tactics, ranging from the Guantanamo military tribunals to administration efforts to hold even U.S. citizens indefinitely without counsel, charge or trial.

Perhaps most troubling, it allowed the administration to claim that detained terrorism suspects could be subjected to interrogation techniques that constitute torture or cruel, inhuman and degrading treatment under international law, such as "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation.

Under Bush administration logic, these tactics were not illegal under U.S. law because U.S. law was trumped by the law of war, and they weren't illegal under the law of war either, because Geneva Convention prohibitions on torture and cruel treatment were not applicable to the conflict with Al Qaeda.

In 2005, Congress angered the administration by passing Sen. John McCain's amendment explicitly prohibiting the use of cruel, inhuman or degrading treatment of detainees. But Congress did not attach criminal penalties to violations of the amendment, and the administration has repeatedly indicated its intent to ignore it.

The Hamdan decision may change a few minds within the administration. Although the decision's practical effect on the military tribunals is unclear — the administration may be able to gain explicit congressional authorization for the tribunals, or it may be able to modify them to comply with the laws of war — the court's declaration that Common Article 3 applies to the war on terror is of enormous significance. Ultimately, it could pave the way for war crimes prosecutions of those responsible for abusing detainees.

Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is sweeping enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why the administration had argued that Common Article 3 did not apply to the war on terror, even though legal experts have long concluded that it was intended to provide minimum rights guarantees for all conflicts not otherwise covered by the Geneva Convention.

But here's where the rubber really hits the road. Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or even the death penalty.

Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.

But as Yale law professor Jack Balkin concludes, it's starting to look as if the Geneva Convention "is not so quaint after all."

Copyright 2006 Los Angeles Times

http://www.localnewswatch.com/jordanfalls/...lnews&id=199758

War on terror ruling worries GOP lawmakers
Staff and agencies
02 July, 2006

By PETE YOST, Associated Press Writer 2 minutes ago

WASHINGTON - Sen. Mitch McConnell (, , ), R-Ky., said Sunday that Congress must address the Supreme Court‘s "very disturbing" finding that international law applies to the Bush administration‘s conduct of the war on terror.

Thursday‘s Supreme Court ruling embracing Article 3 of the Geneva Accords in the military commission case of Osama bin Laden ‘s former driver strikes at the heart of the White House‘s legal position in the war on al-Qaida.

"I think Congress is going to want to deal with that," McConnell said on NBC‘s "Meet the Press."

Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is.

McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses another aspect of the court‘s ruling overturning President Bush ‘s military commissions created to try a limited number of detainees from Guantanamo Bay.

Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might pose broader changes than the White House wants in trials of detainees at Guantanamo Bay.

Specter said that "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says.

Many Republicans in Congress say detainees in the war on terror should not have the same legal protections as those in the military and that Congress should give its imprimatur with little or no change to the Pentagon ‘s military commissions.

"Using the guidelines laid down by the Supreme Court, we can make sure that bad guys — and there are bad guys — are not released and those who deserve to be released will be," said McCain, a prisoner of war during the Vietnam conflict.

McCain and Specter added their voices to that of Senate Armed Services Committee chairman John Warner, R-Va., who says he is uncertain Congress should pass legislation to create new military tribunals.

The Supreme Court said Bush‘s military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.

© 2006 The Associated Press. All rights reserved.
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Sunday, July 2, 2006 · Last updated 8:25 p.m. PT

Supreme Court ruling troubles GOP senators

By PETE YOST
ASSOCIATED PRESS WRITER


In this photograph provided by Meet The Press, Senate Majority Whip Sen. Mitch McConnell, R-Ky., appears on "Meet the Press" during a taping of the show at the NBC studios in Washington Sunday, July 2, 2006. (AP Photo/Meet the Press, Alex Wong)
WASHINGTON -- Two Republican senators said Sunday that Congress must rein in the Supreme Court ruling that international law applies to the Bush administration's conduct in the war on terror.

Thursday's Supreme Court decision embracing Article 3 of the Geneva Accords in the military commission case of Osama bin Laden's former driver strikes at the heart of the White House's legal position in the war on al-Qaida.

Sen. Mitch McConnell, R-Ky., the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes.

"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press." He called the ruling "very disturbing."

The Geneva Convention's Article 3 is "far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should," said Sen. Lindsey Graham, R-S.C., assigned as a Reserve Judge to the Air Force Court of Criminal Appeals. Graham spoke on "Fox News Sunday."

Sen. John McCain, R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists."

Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is.

Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.

McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses another aspect of the court's ruling overturning President Bush's military commissions created to try a limited number of detainees from Guantanamo Bay.

"I don't think we're going to pass something that's going to have our military servicemen subject to some kind of international rules," said McConnell.

Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might pose broader changes than the White House wants in trials of detainees at Guantanamo Bay.

As a starting point for debate, McCain said Congress should embrace the Uniform Code of Military Justice, the bedrock of military law protecting the rights of accused soldiers. The Bush administration has sidestepped the code for nearly five years in dealing with Guantanamo Bay prisoners it has classified as enemy combatants.

Specter said that "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says.

Specter spoke on CBS's "Face the Nation" and McCain appeared on ABC's "This Week."

Many Republicans in Congress say detainees in the war on terror should not have the same legal protections as those in the military and that Congress should give its imprimatur with little or no change to the Pentagon's military commissions.

McCain agreed that justice afforded to enemy combatants "shouldn't be exactly the same as applied to a member of the military." He added, however, that the Uniform Code of Military Justice is "a good framework.

"Using the guidelines laid down by the Supreme Court, we can make sure that bad guys - and there are bad guys - are not released and those who deserve to be released will be," said McCain, a prisoner of war during the Vietnam conflict.

McCain and Specter added their voices to that of Senate Armed Services Committee chairman John Warner, R-Va., who says he is uncertain Congress should pass legislation to create new military tribunals.

"Everybody says, 'Pass legislation, pass legislation,' but we've got to make certain it's needed, and then do it with careful analysis, to get it right," Warner told The New York Times on Friday.

The Supreme Court said Bush's military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.

http://www.counterpunch.org/lindorff07032006.html

The Real Meaning of the Hamdan Ruling
Supreme Court: Bush Administration Has Committed War Crimes
By DAVE LINDORFF

Largely missed in all the coverage of the Supreme Court's landmark ruling in the Hamdan v. Rumsfeld case was the establishment by the court majority that all Bush administration claims to the contrary, the Geneva Convention rules regarding captured prisoners apply to the captives taken not only in the wars in Iraq and Afghanistan, but in the so-called War on Terror.

What has been largely missed is the clear point that the Supreme Court has now declared that for the past five years, Bush and his gang of war-mongers, including Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State and former National Security Adviser Condoleezza Rice, former Attorney General Donald Rumsfeld and current Attorney General and former White House Chief Counsel Alberto Gonzales, and many others in the administration, have been guilty of violating the Third Convention on treatment of prisoners of war. They are also, therefore, in violation of federal law, which back in 1996 adopted that convention as part of the U.S. criminal code.

In other words, the whole top administration, from Commander in Chief George W. Bush on down, is guilty of war crimes. The punishment for committing war crimes ranges from a lengthy jail sentence to, in the event the crimes in question caused the death of any prisoners being held, to death. And there have been many deaths among those who have been held and tortured on orders of the administration-most recently the three suicides at Guantanamo, which included on man who had only three days earlier been targeted for release (but who never learned this because government's secrecy and tight security prevented his attorneys at the Center for Constitutional Rights from getting the news to him).

Interestingly, Gonzales actually warned Bush about this possibility. In a memo to the president, written on January 25, 2002 when he was still White House counsel, Gonzales warned prophetically that the U.S. adoption of the Third Geneva Convention as a part of the U.S. criminal code in 1996 made violation of the convention a "war crime," which he said was defined as "any grave breach" of the Third Convention such as "outrages against personal dignity." He noted that this law applied whether or not a detained person qualified for POW status, and added that punishment for violation of the law "include the death penalty." But then he went on to say Bush could "substantially reduce" his risk of domestic criminal prosecution under the War Crimes Act by making a presidential determination that the Third Geneva Convention "does not apply to al Qaeda and the Taliban."

Clearly, Gonzales here was behaving like a mob lawyer, not like an honest counselor. He was telling the president not what was right and legal, but how to dodge prosecution.

In Bush's case, this crime calls for his impeachment, and for his subsequent prosecution as a war criminal. In the case of his subordinates and abettors, it calls for criminal indictments.

Naturally, we cannot expect to see indictments issue from the Attorney General's Office, particularly given Gonzales' own complicity and personal culpability on the war crimes charge. Conceivably, I suppose, some career prosecutor like Patrick Fitzgerald, who has been given wide authority in his special counsel role, could bring charges, though this seems highly unlikely.

Charges could also be brought by another country whose laws permit such extraterritoriality: Germany or Spain for example.

Meanwhile, we who value America's once elevated standing in the world as a supporter and author of the Geneva Conventions, should begin a campaign to press the Congress to consider a bill of impeachment against Bush for war crimes.

There are, as Barbara Olshansky and I explain in our new book The Case for Impeachment (which includes a copy of the above Gonzales memo in an appendix), many important reasons to impeach the president, but surely the deliberate policy of involving the military in the commission of war crimes-torture, kidnapping, denial of access to some process of challenge the justice of their detention-is among the worst of all of those crimes against the Constitution.

The blood is on Bush's hands, and the hands of his henchmen, but unless we the people act, and unless the Congress acts, to call them to account, it will ultimately be on all of our hands.

Dave Lindorff is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled "This Can't be Happening!" is published by Common Courage Press. Lindorff's new book is "The Case for Impeachment",
co-authored by Barbara Olshansky.

He can be reached at: dlindorff@yahoo.com

http://news.yahoo.com/s/ap/20060703/ap_on_...HE0BHNlYwN0bWE-
Supreme Court ruling troubles GOP senators
By PETE YOST, Associated Press Writer
Mon Jul 3, 2:25 PM ET



Of all the steps the Supreme Court could have taken to undercut President Bush's legal position in the war on terror, applying international law to al-Qaida probably would have been the worst.

That development came to pass Thursday and now Republicans are rushing to protect the cornerstone of Bush's thinking: Suspected terrorists are not entitled to protection under the Geneva Accords.

Sens. Mitch McConnell and Lindsey Graham said Sunday that Congress must address the Supreme Court ruling embracing Article 3 of the conventions in the military commission case of Osama bin Laden's former driver.

Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.

In an election year, declaring that international law governs the war on terror reminds voters of some of the Republican administration's lowest moments: controversies over Justice Department "torture" memos and allegations of abuse against detainees at Guantanamo Bay, Cuba.

McConnell, R-Ky., the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes."

"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press." He called the ruling "very disturbing."

The Geneva Conventions' Article 3 is "far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should," said Graham, R-S.C., assigned as a Reserve Judge to the Air Force Court of Criminal Appeals. Graham spoke on "Fox News Sunday."

Sen. John McCain (news, bio, voting record), R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists." McCain appeared on ABC's "This Week."

McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses the court's overturning of the military commissions created to try a limited number of detainees at Guantanamo Bay.

Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might devise broader changes than the White House wants in trials of detainees at Guantanamo Bay.

As a starting point for debate, McCain said Congress should embrace the Uniform Code of Military Justice, the bedrock of military law protecting the rights of accused soldiers. The Bush administration has skirted the code for nearly five years in dealing with Guantanamo Bay prisoners it has classified as enemy combatants.

Specter said "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says. Specter spoke on CBS' "Face the Nation."

Many Republicans in Congress say detainees in the war on terror should not have the same legal protections as those in the military. Congress, they say, should give its imprimatur with little or no change to the Pentagon's military commissions.

McCain agreed that justice afforded to enemy combatants "shouldn't be exactly the same as applied to a member of the military." He added, however, that the Uniform Code of Military Justice is "a good framework."

The Supreme Court said Bush's military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.

Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.




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What Geneva Means To Hamdan
Aziz Huq
July 07, 2006


Aziz Huq directs the Liberty and National Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.

The Supreme Court’s ruling last week in Hamdan that military commissions erected at Guantánamo are inconsistent with our military law and the Geneva Conventions has already prompted fierce—and flawed—debate. One key question, especially relevant in next week’s Judiciary Committee hearings on Hamdan, is whether and how the Geneva Conventions apply to military commissions. The many factually and legally incorrect assertions clogging the air make it worth stepping back to understand what Geneva does, and why it matters for our success against the terrorist threat.

Overheated rhetoric on Geneva began within hours the court’s decision. Summing up the criticism, the Wall Street Journal argued that it was deeply improper to give terrorist suspects the same rights as American servicemen. The Journal contended that prosecutions of suspected terrorists would compromise the president’s ability to act with “speed and decisiveness.” These criticisms rest, however, on misconceptions about Geneva and ignorance about the workings of our military justice system.

The United States and other nations negotiated the Geneva Conventions in August 1949, as World War II’s aftermath smoldered around them. America’s negotiators, Raymond Yingling and Robert Ginnane, had a clear mission: To secure clear rules placing out of bounds the kind of abuse and torture American soldiers captured by Japan had suffered. The negotiators must have known of the Ofuma interrogation center, where American soldiers where were subjected to solitary confinement, blindfolding and stress positions such as the “Ofuma crunch”: an excruciatingly painful position that involves “standing on the ball of your foot, knees half bent and arms extended over the head.” The four Conventions thus contain literally hundreds of detailed provisions, not only preventing this kind of abuse, but also reaching food rationing, barracks arrangements, and even sports.

Geneva’s intricate rules, however, govern only the treatment of persons who are no longer fighting, and only in times of armed conflict. They say nothing about combat decisions: weapons used, tactics employed and strategic goals selected. Geneva focuses solely on those “hors de combat”: The wounded, captured and civilians; the shepherd who inadvertently strayed onto the battlefield. Geneva imposes no constraint on the military’s use of force, or its “speed and decisiveness,” as the Journal misleadingly suggested. It kicks in only once the fetters are securely fastened on prisoners.

Further, President Harry S. Truman signed, and the Senate ratified, the Geneva treaties knowing full well that they applied only in “armed conflicts” (including both conflicts between two states and conflicts involving only one state). The White House and the Congress entered into the treaties—and even made “grave breaches” of Geneva violations of American criminal law—knowing full well that Geneva’s restrictions applied only when American servicemen’s lives were at stake. Every time Geneva kicks in, it is because American soldiers are in the line of fire. Equally, every time American soldiers walk into battle, they know that an intricate and detailed web of legal protections shield them from abuse and ill-treatment.

But didn’t the Supreme Court hold that these detailed rules about sports and food rationing apply to alleged al-Qaida and Taliban members as well as to U.S. forces? Isn’t the Journal correct to say that American soldiers and alleged al-Qaida member captured on the Afghan battlefield are being equally ranked? Absolutely not. A captured American soldier and an alleged al-Qaida member picked up during combat are almost certainly subject to different rules and protections, and the Court’s ruling did not change that. It is the Journal’s failure to understand Geneva that fosters confusion.

Geneva protects the American soldier in two ways. First, he is entitled to “combatant immunity.” That is, he cannot be tried for his acts as a soldier, carrying and using a gun, killing others. Second, because he is a “lawful combatant” under Geneva, he benefits from more than one hundred detailed rules for the treatment of “Prisoners of War,” or POWs, that are listed in the Third Geneva Convention. These are the rules on food rations, barracks arrangements, and sports Yingling and Ginnane negotiated in 1949.

But the al-Qaida fighter likely gets neither benefit if he has not followed Geneva’s demanding rules for POW entitlement. If the al-Qaida member fails to meet these rules—and there’s a reasonable argument many of them did fail—they do not rank as POWs, and do not obtain the benefits of that status, including combatant immunity. The al-Qaida fighter, in other words, can be tried and convicted criminally as a result of his failure to follow the laws of war. Unlike the American service member, the al-Qaida fighter is not a “lawful” combatant under Geneva.

But Geneva is a comprehensive framework for everyone captured in warfare. Hence, it has a minimal baseline standard for any person captured during wartime, a baseline that precludes “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment,” and also criminal trials outside of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This is “Common Article 3.”

“Common Article 3”—so-called because it appears in each of the four Conventions—is the point beyond which no nation can go without losing its claim to dignity and honor. Geneva’s drafters (including the United States), President Truman, and the U.S. Senate concluded that the limit on torture and unfair trials formed such bare essentials.

It is solely Common Article 3 that was at issue in Hamdan. It was solely this irreducible floor that the Supreme Court found applied to military commission procedures as a matter of Congress’s command. The court simply did not hold that members of the Taliban rank automatically with U.S. soldiers, or that they benefit from “combatant immunity.”

Further, there is good cause—in strictly counter-terrorism terms—to apply Common Article 3 to alleged members of the Taliban and al-Qaida. It is generally believed around the world that many of those detained at Guantánamo are in fact innocent of all connection with either the Taliban or al-Qaida. It is hard to imagine how a trial that does not respect “the judicial guarantees which are recognized as indispensable by civilized peoples” could convince others that Guantánamo detainees are properly detained. Unfair trials will make it more difficult to win the ideological battle at the heart of counter-terrorism.

Common Article 3 is especially important now because there is real doubt about whether substantial numbers of Guantánamo detainees have any connection to al-Qaida or the Taliban. Geneva tells states to take the common-sense measures of holding swift hearings on the battlefield to distinguish combatants from those swept in accidentally. But the administration decided to forego these essential procedures “to make a point—that the president can designate them all enemy combatants if he wants to.” Congress and the American public are still slowly learning that Guantánamo detainees are in fact innocent of all conduct, that we have been frittering away our money, manpower and reputation not on the “worst of the worst,” but on shepherds and farmers because the administration declined to sort the innocent from the guilty.

In any case, we know that “military necessity” has nothing to do with resistance to Common Article 3. As Jane Mayer recently explained in the New Yorker, military lawyers were wholly excluded from the rule-making process for military commissions. One military lawyer called the commissions “a political stunt. The administration clearly didn’t know anything about military law or the laws of war.” Those who knew most about “military necessity,” in short, played no role in the decision to deviate from Common Article 3.

Adherence to Common Article 3, in line with the Supreme Court’s decision in Hamdan, is thus not the blow to counter-terrorism measures that the Journal claims. It is a necessary, eminently practical tool in a difficult, long-term battle. It is the line we cannot cross without losing our claim to moral and political leadership. And it is a standard we fall short of at our own risk.