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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
Full Version: Hamdan v. Rumsfeld, Secretary of Defense
Common Ground Common Sense > Issues that Affect Our Lives > U.S. Military Issues > U.S. Military Issues Archive
This is the Executive Summary of the Supreme Court Opinion. Go to the foregoing link for the entire opinion. It is being included here because of the extensive discussion regarding rights associated with military tribunals.
http://laws.findlaw.com/us/000/05-184.html
Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.
Held: The judgment is reversed, and the case is remanded.
415 F. 3d 33, reversed and remanded.
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.
Body of the Opinion can be found at the above link.
http://laws.findlaw.com/us/000/05-184.html
Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.
The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed. Although it declined the Government's invitation to abstain from considering Hamdan's challenge, cf. Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte Quirin, 317 U. S. 1, foreclosed any separation-of-powers objection to the military commission's jurisdiction, and that Hamdan's trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the Geneva Conventions.
Held: The judgment is reversed, and the case is remanded.
415 F. 3d 33, reversed and remanded.
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.
Body of the Opinion can be found at the above link.
Post's Barbash Explains Supreme Court GITMO Ruling
http://www.washingtonpost.com/wp-dyn/conte...errer=emaillink
http://www.washingtonpost.com/wp-dyn/conte...errer=emaillink
http://www.military.com/NewsContent/0,13319,103540,00.html
High Court Limits Gitmo Tribunals
Associated Press | June 29, 2006
WASHINGTON - The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.
Bush said there might still be a way to work with Congress to sanction military tribunals for detainees and the American people should know the ruling "won't cause killers to be put out on the street."
The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. law and the Geneva conventions.
The ruling raises major questions about the legal status of the approximately 450 men still being held at the U.S. military prison in Cuba 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.
Justice John Paul Stevens, writing for the court, said the Bush administration lacked the authority to take the "extraordinary measure" of scheduling special military trials for inmates, in which defendants have fewer legal protections than in civilian U.S. courts.
The decision blocked a trial for 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.
It was a broad defeat for the government, which two years ago suffered a similar loss when the high court held the president lacked authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers.
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 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 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 - had 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 from Thursday's ruling 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 dissented.
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.
Justices also rejected the Bush administration's claim that the case should be thrown out on grounds that a new law stripped the justices' authority to consider it, and that Hamdan should not have been allowed to appeal until after the conclusion of his trial.
"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 has claimed he is innocent and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.
Stevens suggested that the administration would be best off trying Hamdan and others before regular military courts-martial trials.
The case is Hamdan v. Rumsfeld, 05-184.
Copyright 2006 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
High Court Limits Gitmo Tribunals
Associated Press | June 29, 2006
WASHINGTON - The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees, saying in a strong rebuke that the trials were illegal under U.S. and international law.
Bush said there might still be a way to work with Congress to sanction military tribunals for detainees and the American people should know the ruling "won't cause killers to be put out on the street."
The court declared 5-3 that the trials for 10 foreign terror suspects violate U.S. law and the Geneva conventions.
The ruling raises major questions about the legal status of the approximately 450 men still being held at the U.S. military prison in Cuba 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.
Justice John Paul Stevens, writing for the court, said the Bush administration lacked the authority to take the "extraordinary measure" of scheduling special military trials for inmates, in which defendants have fewer legal protections than in civilian U.S. courts.
The decision blocked a trial for 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.
It was a broad defeat for the government, which two years ago suffered a similar loss when the high court held the president lacked authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers.
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 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 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 - had 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 from Thursday's ruling 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 dissented.
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.
Justices also rejected the Bush administration's claim that the case should be thrown out on grounds that a new law stripped the justices' authority to consider it, and that Hamdan should not have been allowed to appeal until after the conclusion of his trial.
"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 has claimed he is innocent and worked as a driver for bin Laden in Afghanistan only to eke out a living for his family.
Stevens suggested that the administration would be best off trying Hamdan and others before regular military courts-martial trials.
The case is Hamdan v. Rumsfeld, 05-184.
Copyright 2006 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
http://www.defenselink.mil/news/Jun2006/20060629_5548.html
Officials Study Implications of Supreme Court Ruling on Tribunals
By Donna Miles
American Forces Press Service
WASHINGTON, June 29, 2006 – Today's Supreme Court decision specifically invites the administration to work with Congress to change the law so it can try some detainees through military tribunals, senior officials from the Departments of Justice and Defense said today.
The Supreme Court ruled 5-3 this morning that military commissions for detainees charged with war crimes would violate the Uniform Code of Military Justice as well as four Geneva Conventions.
While ruling against military tribunals for detainees at Guantanamo Bay, Cuba, as they currently stand, the court's decision notes that "nothing prevents the administration from going to Congress to seek the authorities it feels are necessary," an official told reporters via teleconference.
In fact, Justice Stephen Breyer offered "an implicit invitation" encouraging the administration to do so, he noted.
President Bush said this morning he would explore this option in hopes of determining a way forward. Defense and Justice officials called the Supreme Court ruling "a very significant decision" and said they are studying it to assess its full implications. "The Supreme Court has spoken," an official said. "We are carefully reviewing that decision."
In the meantime, "all options are on the table" regarding the next course of action, an official said. Today's decision directly affects only 14 detainees at Guantanamo Bay. Ten of them were already facing commissions on charges of violating the laws of war. Charges had been prepared for another four detainees, but they had not yet been arraigned, a defense official said.
However, officials said today the decision could ultimately affect 40 to 80 detainees who are expected to be charged in the future.
Nothing in the decision takes issue with the detention of some 450 prisoners at Guantanamo Bay, officials emphasized. "The court recognizes that this is a unique conflict against a unique enemy and in fact a dangerous one," an official said.
"The court was not questioning" the right to detainee these enemy combatants during hostilities, he said. White House Press Secretary Tony Snow issued a similar sentiment during today's White House briefing. "Nobody gets a 'get out of jail free card,'" he said of the decision.
Snow acknowledged that the war on terror poses new considerations. "This is a different kind of war and I think it creates a different kind of legal atmosphere," he said.
Today's decision was based on the case Hamdan v. Rumsfeld, filed on behalf of Salim Ahmed Hamdan. A former driver and bodyguard for al Qaeda leader Osama bin Laden, Hamden was picked up in Afghanistan in late 2001 and turned over to U.S. officials. He has been detained at Guantanamo Bay since 2002.
Hamdan challenged the legality of the U.S. government trying him for alleged war crimes before a military commission under a presidential order. Hamdan argued that he was entitled to a court-martial convened under the U.S. Code of Military Justice or a civilian trial before a federal judge.
Officials Study Implications of Supreme Court Ruling on Tribunals
By Donna Miles
American Forces Press Service
WASHINGTON, June 29, 2006 – Today's Supreme Court decision specifically invites the administration to work with Congress to change the law so it can try some detainees through military tribunals, senior officials from the Departments of Justice and Defense said today.
The Supreme Court ruled 5-3 this morning that military commissions for detainees charged with war crimes would violate the Uniform Code of Military Justice as well as four Geneva Conventions.
While ruling against military tribunals for detainees at Guantanamo Bay, Cuba, as they currently stand, the court's decision notes that "nothing prevents the administration from going to Congress to seek the authorities it feels are necessary," an official told reporters via teleconference.
In fact, Justice Stephen Breyer offered "an implicit invitation" encouraging the administration to do so, he noted.
President Bush said this morning he would explore this option in hopes of determining a way forward. Defense and Justice officials called the Supreme Court ruling "a very significant decision" and said they are studying it to assess its full implications. "The Supreme Court has spoken," an official said. "We are carefully reviewing that decision."
In the meantime, "all options are on the table" regarding the next course of action, an official said. Today's decision directly affects only 14 detainees at Guantanamo Bay. Ten of them were already facing commissions on charges of violating the laws of war. Charges had been prepared for another four detainees, but they had not yet been arraigned, a defense official said.
However, officials said today the decision could ultimately affect 40 to 80 detainees who are expected to be charged in the future.
Nothing in the decision takes issue with the detention of some 450 prisoners at Guantanamo Bay, officials emphasized. "The court recognizes that this is a unique conflict against a unique enemy and in fact a dangerous one," an official said.
"The court was not questioning" the right to detainee these enemy combatants during hostilities, he said. White House Press Secretary Tony Snow issued a similar sentiment during today's White House briefing. "Nobody gets a 'get out of jail free card,'" he said of the decision.
Snow acknowledged that the war on terror poses new considerations. "This is a different kind of war and I think it creates a different kind of legal atmosphere," he said.
Today's decision was based on the case Hamdan v. Rumsfeld, filed on behalf of Salim Ahmed Hamdan. A former driver and bodyguard for al Qaeda leader Osama bin Laden, Hamden was picked up in Afghanistan in late 2001 and turned over to U.S. officials. He has been detained at Guantanamo Bay since 2002.
Hamdan challenged the legality of the U.S. government trying him for alleged war crimes before a military commission under a presidential order. Hamdan argued that he was entitled to a court-martial convened under the U.S. Code of Military Justice or a civilian trial before a federal judge.
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."
Copyright © 2006 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.
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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."
Copyright © 2006 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.
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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.
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.
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.
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?
--------------------------------------------------------------------------------
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.
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?
--------------------------------------------------------------------------------
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.
--------------------
Pentagon Lawyers Fought Hard-Liners on Rules of War
--------------------
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
Pentagon Lawyers Fought Hard-Liners on Rules of War
--------------------
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
http://www.voanews.com/english/2006-06-29-voa70.cfm
US Court Decision on Guantanamo Receives International Praise
By Stephanie Ho
Washington
29 June 2006
World reaction to the U.S. Supreme Court's ruling involving military tribunals for detainees being held at the Guantanamo Bay facility was predominantly positive.
Washington lawyer Gene Fidell, who has worked on cases involving Guantanamo detainees, says the treatment of prisoners of the war on terrorism has increasingly drawn international criticism, even from close U.S. allies. "Our co-partner in the coalition in Iraq, the UK, has grown increasingly vocal on the subject. Other friendly powers have, as well," he said
British Prime Minister Tony Blair, America's strongest ally in the war on terror, had no immediate reaction to the court ruling that the proposed military tribunals violate U.S. and international law. But Britain's top justice official, Attorney General Peter Goldsmith has criticized Guantanamo, calling it a symbol of injustice.
Europe's premier human rights watchdog, the 46-nation Council of Europe, issued a statement calling the ruling a "victory for justice in the campaign against error, ineptitude and hypocrisy." The statement called on the United States to use the decision as an opportunity to close the detention facility at Guantanamo Base, Cuba.
The Supreme Court ruled that military tribunals are illegal under U.S. law and the Geneva Conventions, which govern international treatment of prisoners of war, in a case brought by Salim Ahmed Hamdan, a former bodyguard and driver for Osama bin Laden.
British lawyer Zachary Katz-Nelson, of the London-based human rights group, Reprieve, said this judgment will have significant implications. "And the Court made clear that the Geneva Conventions today applies to anyone who is made a prisoner, in the war on terror. Anywhere around the world, the Geneva Convention will apply, no matter if they're al Qaida, no matter what their background is," he said.
Lawyers for terror suspects from Australia and Germany, who are among the more than 400 people being held at Guantanamo, praised the ruling.
US Court Decision on Guantanamo Receives International Praise
By Stephanie Ho
Washington
29 June 2006
World reaction to the U.S. Supreme Court's ruling involving military tribunals for detainees being held at the Guantanamo Bay facility was predominantly positive.
Washington lawyer Gene Fidell, who has worked on cases involving Guantanamo detainees, says the treatment of prisoners of the war on terrorism has increasingly drawn international criticism, even from close U.S. allies. "Our co-partner in the coalition in Iraq, the UK, has grown increasingly vocal on the subject. Other friendly powers have, as well," he said
British Prime Minister Tony Blair, America's strongest ally in the war on terror, had no immediate reaction to the court ruling that the proposed military tribunals violate U.S. and international law. But Britain's top justice official, Attorney General Peter Goldsmith has criticized Guantanamo, calling it a symbol of injustice.
Europe's premier human rights watchdog, the 46-nation Council of Europe, issued a statement calling the ruling a "victory for justice in the campaign against error, ineptitude and hypocrisy." The statement called on the United States to use the decision as an opportunity to close the detention facility at Guantanamo Base, Cuba.
The Supreme Court ruled that military tribunals are illegal under U.S. law and the Geneva Conventions, which govern international treatment of prisoners of war, in a case brought by Salim Ahmed Hamdan, a former bodyguard and driver for Osama bin Laden.
British lawyer Zachary Katz-Nelson, of the London-based human rights group, Reprieve, said this judgment will have significant implications. "And the Court made clear that the Geneva Conventions today applies to anyone who is made a prisoner, in the war on terror. Anywhere around the world, the Geneva Convention will apply, no matter if they're al Qaida, no matter what their background is," he said.
Lawyers for terror suspects from Australia and Germany, who are among the more than 400 people being held at Guantanamo, praised the ruling.
http://www.voanews.com/english/2006-06-29-voa70.cfm
US Court Decision on Guantanamo Receives International Praise
By Stephanie Ho
Washington
29 June 2006
World reaction to the U.S. Supreme Court's ruling involving military tribunals for detainees being held at the Guantanamo Bay facility was predominantly positive.
Washington lawyer Gene Fidell, who has worked on cases involving Guantanamo detainees, says the treatment of prisoners of the war on terrorism has increasingly drawn international criticism, even from close U.S. allies. "Our co-partner in the coalition in Iraq, the UK, has grown increasingly vocal on the subject. Other friendly powers have, as well," he said
British Prime Minister Tony Blair, America's strongest ally in the war on terror, had no immediate reaction to the court ruling that the proposed military tribunals violate U.S. and international law. But Britain's top justice official, Attorney General Peter Goldsmith has criticized Guantanamo, calling it a symbol of injustice.
Europe's premier human rights watchdog, the 46-nation Council of Europe, issued a statement calling the ruling a "victory for justice in the campaign against error, ineptitude and hypocrisy." The statement called on the United States to use the decision as an opportunity to close the detention facility at Guantanamo Base, Cuba.
The Supreme Court ruled that military tribunals are illegal under U.S. law and the Geneva Conventions, which govern international treatment of prisoners of war, in a case brought by Salim Ahmed Hamdan, a former bodyguard and driver for Osama bin Laden.
British lawyer Zachary Katz-Nelson, of the London-based human rights group, Reprieve, said this judgment will have significant implications. "And the Court made clear that the Geneva Conventions today applies to anyone who is made a prisoner, in the war on terror. Anywhere around the world, the Geneva Convention will apply, no matter if they're al Qaida, no matter what their background is," he said.
Lawyers for terror suspects from Australia and Germany, who are among the more than 400 people being held at Guantanamo, praised the ruling.
US Court Decision on Guantanamo Receives International Praise
By Stephanie Ho
Washington
29 June 2006
World reaction to the U.S. Supreme Court's ruling involving military tribunals for detainees being held at the Guantanamo Bay facility was predominantly positive.
Washington lawyer Gene Fidell, who has worked on cases involving Guantanamo detainees, says the treatment of prisoners of the war on terrorism has increasingly drawn international criticism, even from close U.S. allies. "Our co-partner in the coalition in Iraq, the UK, has grown increasingly vocal on the subject. Other friendly powers have, as well," he said
British Prime Minister Tony Blair, America's strongest ally in the war on terror, had no immediate reaction to the court ruling that the proposed military tribunals violate U.S. and international law. But Britain's top justice official, Attorney General Peter Goldsmith has criticized Guantanamo, calling it a symbol of injustice.
Europe's premier human rights watchdog, the 46-nation Council of Europe, issued a statement calling the ruling a "victory for justice in the campaign against error, ineptitude and hypocrisy." The statement called on the United States to use the decision as an opportunity to close the detention facility at Guantanamo Base, Cuba.
The Supreme Court ruled that military tribunals are illegal under U.S. law and the Geneva Conventions, which govern international treatment of prisoners of war, in a case brought by Salim Ahmed Hamdan, a former bodyguard and driver for Osama bin Laden.
British lawyer Zachary Katz-Nelson, of the London-based human rights group, Reprieve, said this judgment will have significant implications. "And the Court made clear that the Geneva Conventions today applies to anyone who is made a prisoner, in the war on terror. Anywhere around the world, the Geneva Convention will apply, no matter if they're al Qaida, no matter what their background is," he said.
Lawyers for terror suspects from Australia and Germany, who are among the more than 400 people being held at Guantanamo, praised the ruling.
http://www.cdi.org/program/document.cfm?Do..._page=index.cfm
June 29, 2006
Supreme Court Rejects Guantanamo Bay Military Tribunals
The U.S. Supreme Court in a 5-3 decision on June 29, 2006, brought a halt to military commissions at the Guantanamo Bay (GTMO) prison and interrogation camp with its decision in Hamdan v. Rumsfeld.
[click here for the 185-page pdf of the opinion, and check back with this web site for more in-depth analysis] - go to link
It appears the crux of the decision focused on whether the operation of the military commissions conformed to requirements of the Uniform Code of Military Justice and the Geneva Convention relative to the Treatment of Prisoners of War of 1949. In the bench opinion, writing for the majority, Justice John Paul Stevens reportedly declared: “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 on the treatment of prisoners of war and U.S. military laws.[1]
Chief Justice John Roberts, who had voted to uphold the commissions while sitting on the U.S. Court of Appeals for the D.C. Circuit, even before the commissions were approved after-the-fact by the Graham-Levin amendment to the fiscal year (FY) 2006 Defense Authorization bill, recused himself from the case, or the vote conceivably might have been 5-4.
The military commissions were intended to prosecute detainees for war crimes. If convicted, a detainee’s status would be converted from something akin to enemy prisoner of war to something quite different, a convicted criminal, subject to incarceration or execution as a punitive measure, i.e., as punishment for a crime, as opposed to the concept of removing a combatant from hostilities and attempting to interrogate him.
The Guantanamo Bay (GTMO) prison and interrogation camp is operated by Joint Task Force Guantanamo (JTF-GTMO) at the U.S. Naval Station, Guantanamo Bay, Cuba. It has been the subject of controversy over questions of detainee treatment, interrogation methods, and the legal frameworks governing the detentions. The Hamdan case addresses only military commissions, and not the detentions generally or the Combatant Status Review Tribunals (CSRT), which are used to determine whether a detainee is an enemy combatant, or Administrative Review Boards (ARB), used to revisit whether an alleged enemy combatant continues to pose a threat or offers intelligence value.
The Supreme Court in the Rasul v. Bush decision of June 28, 2004, held 5-4, with different membership, that GTMO detainees had habeas corpus rights to challenge their detentions in civilian federal court, but Congress acted with the Graham-Levin amendment to amend the habeas corpus statute to attempt to supersede the Rasul decision, which would have forced the Supreme Court to revisit the matter on solely constitutional grounds.
[1] James Vicini, “Supreme Court rejects Guantanamo military tribunal,” Reuters, June 29, 2006, http://today.reuters.com/news/newsArticle....ANAMO-COURT.xml
Author(s): Steven C. Welsh
June 29, 2006
Supreme Court Rejects Guantanamo Bay Military Tribunals
The U.S. Supreme Court in a 5-3 decision on June 29, 2006, brought a halt to military commissions at the Guantanamo Bay (GTMO) prison and interrogation camp with its decision in Hamdan v. Rumsfeld.
[click here for the 185-page pdf of the opinion, and check back with this web site for more in-depth analysis] - go to link
It appears the crux of the decision focused on whether the operation of the military commissions conformed to requirements of the Uniform Code of Military Justice and the Geneva Convention relative to the Treatment of Prisoners of War of 1949. In the bench opinion, writing for the majority, Justice John Paul Stevens reportedly declared: “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 on the treatment of prisoners of war and U.S. military laws.[1]
Chief Justice John Roberts, who had voted to uphold the commissions while sitting on the U.S. Court of Appeals for the D.C. Circuit, even before the commissions were approved after-the-fact by the Graham-Levin amendment to the fiscal year (FY) 2006 Defense Authorization bill, recused himself from the case, or the vote conceivably might have been 5-4.
The military commissions were intended to prosecute detainees for war crimes. If convicted, a detainee’s status would be converted from something akin to enemy prisoner of war to something quite different, a convicted criminal, subject to incarceration or execution as a punitive measure, i.e., as punishment for a crime, as opposed to the concept of removing a combatant from hostilities and attempting to interrogate him.
The Guantanamo Bay (GTMO) prison and interrogation camp is operated by Joint Task Force Guantanamo (JTF-GTMO) at the U.S. Naval Station, Guantanamo Bay, Cuba. It has been the subject of controversy over questions of detainee treatment, interrogation methods, and the legal frameworks governing the detentions. The Hamdan case addresses only military commissions, and not the detentions generally or the Combatant Status Review Tribunals (CSRT), which are used to determine whether a detainee is an enemy combatant, or Administrative Review Boards (ARB), used to revisit whether an alleged enemy combatant continues to pose a threat or offers intelligence value.
The Supreme Court in the Rasul v. Bush decision of June 28, 2004, held 5-4, with different membership, that GTMO detainees had habeas corpus rights to challenge their detentions in civilian federal court, but Congress acted with the Graham-Levin amendment to amend the habeas corpus statute to attempt to supersede the Rasul decision, which would have forced the Supreme Court to revisit the matter on solely constitutional grounds.
[1] James Vicini, “Supreme Court rejects Guantanamo military tribunal,” Reuters, June 29, 2006, http://today.reuters.com/news/newsArticle....ANAMO-COURT.xml
Author(s): Steven C. Welsh
http://www.theage.com.au/news/world/ruling...1174396035.html
Ruling prompts Bush to press for new laws to try Cuba detainees
Michael Gawenda, Washington
July 1, 2006
tTHE Bush Administration and senior Republicans will press Congress to pass laws so that Guantanamo Bay detainees, including David Hicks, can be tried by military tribunals that do not offer the same legal rights as US courts or courts martial.
The move comes after the US Supreme Court's landmark ruling that the military commissions set up after September 11, 2001, to try "enemy combatants" contravened the Geneva Convention and the American Military Code of Justice.
Administration officials have made it clear that President George Bush is determined to push ahead with tribunals that offer "terrorist killers and war criminals" less than the protections and rights available at courts martial and in US courts.
The officials said that the court's decision was "narrowly based" and was not a judgement on the limits of presidential powers in war time. But few legal experts agreed with them.
Some Administration officials admitted that the ruling throws into doubt the whole strategy for fighting the so-called war on terror. That includes the CIA prisons where senior al-Qaeda members are held with no access to lawyers, and interrogation techniques approved by Defence Secretary Donald Rumsfeld and other officials.
Senior Republicans said they would push Congress to pass laws that would allow Mr Bush, in the words of Senate Majority Leader Bill Frist, "to keep America safe in the war on terror".
But Senate Armed Services Committee chairman John Warner said there would have to be an "acceleration of efforts to return detainees to their own countries".
Mr Bush, clearly stunned by the ruling, said that "to the extent that there is latitude to work with Congress … we will do so".
Senior Democrats responded cautiously to the proposal that Congress should pass laws for military tribunals. But Senate Minority Leader Harry Reid said they would not support legislation that failed to take into account the court's ruling.
Some Democrats said that any new laws were likely to be challenged in the courts.
The Supreme Court ruled that Mr Bush had no power to set up the military commissions without Congressional approval and legislation. Additionally, the commissions contravened US and international law.
Military defence lawyers for Guantanamo detainees were jubilant. Major Michael Mori, the military lawyer for David Hicks, said Hicks was always prepared to be tried by a proper court martial or in a federal court.
"Today, the Supreme Court found that the system Australia supports is illegal and fails to provide basic fundamental rights required for a criminal justice system," he said.
The ruling that even al-Qaeda suspects are entitled to the protection of the Geneva Convention is likely to have the biggest long-term impact on the Bush Administration. It limits Mr Bush's power to wage the war on terror and may affect other Bush-sanctioned programs, including the phone-tapping operation run by the National Security Agency without court approval.
Andrew McBride, a former federal prosecutor and an Administration supporter, said the decision was a blow for the President. "It takes a very narrow view of the President's authority," he said.
Ruling prompts Bush to press for new laws to try Cuba detainees
Michael Gawenda, Washington
July 1, 2006
tTHE Bush Administration and senior Republicans will press Congress to pass laws so that Guantanamo Bay detainees, including David Hicks, can be tried by military tribunals that do not offer the same legal rights as US courts or courts martial.
The move comes after the US Supreme Court's landmark ruling that the military commissions set up after September 11, 2001, to try "enemy combatants" contravened the Geneva Convention and the American Military Code of Justice.
Administration officials have made it clear that President George Bush is determined to push ahead with tribunals that offer "terrorist killers and war criminals" less than the protections and rights available at courts martial and in US courts.
The officials said that the court's decision was "narrowly based" and was not a judgement on the limits of presidential powers in war time. But few legal experts agreed with them.
Some Administration officials admitted that the ruling throws into doubt the whole strategy for fighting the so-called war on terror. That includes the CIA prisons where senior al-Qaeda members are held with no access to lawyers, and interrogation techniques approved by Defence Secretary Donald Rumsfeld and other officials.
Senior Republicans said they would push Congress to pass laws that would allow Mr Bush, in the words of Senate Majority Leader Bill Frist, "to keep America safe in the war on terror".
But Senate Armed Services Committee chairman John Warner said there would have to be an "acceleration of efforts to return detainees to their own countries".
Mr Bush, clearly stunned by the ruling, said that "to the extent that there is latitude to work with Congress … we will do so".
Senior Democrats responded cautiously to the proposal that Congress should pass laws for military tribunals. But Senate Minority Leader Harry Reid said they would not support legislation that failed to take into account the court's ruling.
Some Democrats said that any new laws were likely to be challenged in the courts.
The Supreme Court ruled that Mr Bush had no power to set up the military commissions without Congressional approval and legislation. Additionally, the commissions contravened US and international law.
Military defence lawyers for Guantanamo detainees were jubilant. Major Michael Mori, the military lawyer for David Hicks, said Hicks was always prepared to be tried by a proper court martial or in a federal court.
"Today, the Supreme Court found that the system Australia supports is illegal and fails to provide basic fundamental rights required for a criminal justice system," he said.
The ruling that even al-Qaeda suspects are entitled to the protection of the Geneva Convention is likely to have the biggest long-term impact on the Bush Administration. It limits Mr Bush's power to wage the war on terror and may affect other Bush-sanctioned programs, including the phone-tapping operation run by the National Security Agency without court approval.
Andrew McBride, a former federal prosecutor and an Administration supporter, said the decision was a blow for the President. "It takes a very narrow view of the President's authority," he said.
I guess that settles that.
I wonder why they wanted there treatment downgraded to POW status?
I wonder why they wanted there treatment downgraded to POW status?
http://seattlepi.nwsource.com/national/276109_swift01.html
QUOTE
Saturday, July 1, 2006
Gitmo win likely cost Navy lawyer his career
'Fearless' defense of detainee a stinging loss for Bush
By PAUL SHUKOVSKY
P-I REPORTER
Lt. Cmdr. Charles Swift -- the Navy lawyer who beat the president of the United States in a pivotal Supreme Court battle over trying alleged terrorists -- figures he'll probably have to find a new job.
Of course, it's always risky to compare your boss to King George III.
Swift made the analogy to the court, saying President Bush had overstepped his authority when he bypassed Congress and set up illegal military tribunals to try Guantanamo detainees such as Swift's alleged al-Qaida client, Salim Ahmed Hamdan.
The justices agreed, ruling 5-3 Thursday in favor of dismantling the current tribunal system.
Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.
"I may be one of the most influential lawyers in America," the Seattle University Law School graduate said, "but I won't be in the military much longer. That irony did strike me."
Swift's future in the Navy now rests with another promotion board that is expected to render its decision in the next couple of weeks. Under the military's system, officers need to be promoted at regularly scheduled intervals or their service careers are essentially over.
"The way it works, the die was cast some months ago," he said. "The decision has been made. I don't know what it is yet." But he thinks his chances are slim.
Asked if he believes he was passed over for promotion last year for political reasons, Swift would not speculate.
"I don't know," he said. "I'm not going to worry about it. I didn't volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could."
Swift has worked under two officers as a member of the small team of lawyers defending "enemy combatants" being held at Guantanamo Bay. Both of them spoke highly of Swift Friday and said they gave him very high ratings on his annual review, called a fitness report.
"He's doing a fantastic job," said Swift's current boss at the Office of Military Commissions (tribunals), Marine Col. Dwight Sullivan.
Sullivan spoke of the crucial importance of the case decided Thursday by the Supreme Court. "It's a fundamental constitutional question about the powers of the president," Sullivan said. Asked about Swift's aggressive legal challenge of the commander in chief, Sullivan saluted Swift's "moral courage."
"He has been absolutely fearless is pursuing his client's interests. And also he has exhibited an extraordinary level of legal skill. His legal strategy has been brilliant.
"We all take an oath to protect and defend the Constitution of the United States and he has certainly done that, literally."
Swift spoke Friday about his "immense pride" in the military justice system. "I don't feel that because you join the military you should lose rights. If there is anyone who deserves the protection of those rights, it's the people who are willing to lay down their lives for it."
So the question is will Swift lay down his career because of his vigorous defense of a Yemeni tribesman who was Osama bin Laden's driver in Afghanistan.
Swift's first supervisor at the Office of Commissions was Col. Will Gunn, who said Friday that he gave Swift two annual fitness reports and "I gave him very high ratings overall."
Asked whether he thought politics might have played a role in Swift being bypassed for promotion, Gunn focused on Swift's atypical career as a military lawyer. "Charlie has spent a lot of time as a litigator, a trial advocate. That's really unusual in the JAG. You find that people in the more senior ranks have moved around and proved themselves in a variety of settings."
Most of Swift's career has been spent in the courtroom.
"While Charlie is a brilliant guy, a tenacious litigator, he does not have all the blocks checked like some other folks have," Gunn said. He called it a "breadth-of-experience" issue.
Swift clearly believes that his vigorous defense of Hamdan was, in a very real way, a vigorous defense of military justice and the Constitution.
"If they are calling the commissions (tribunals) military justice, it's got to live up to what military justice is. It means something. It's about the law, not what the leaders want. The greatest thing about the JAG Corps is ... I had the opportunity to work every day in a system I believe in."
Swift figures he'll hear around the second week of the month whether he's been passed over for promotion again. If so, he says, it will be time to dust off the resume.
He doesn't know what might be next, but when asked if he might move back to the Puget Sound area, he said: "I lived in Seattle for 6 1/2 years. I love Seattle."
He proceeded to reminisce fondly about sitting in the Kingdome's outfield bleachers watching the Mariners play. "And my wife is an airplane pilot. She could live anywhere."
QUOTE
Saturday, July 1, 2006
Gitmo win likely cost Navy lawyer his career
'Fearless' defense of detainee a stinging loss for Bush
By PAUL SHUKOVSKY
P-I REPORTER
Lt. Cmdr. Charles Swift -- the Navy lawyer who beat the president of the United States in a pivotal Supreme Court battle over trying alleged terrorists -- figures he'll probably have to find a new job.
Of course, it's always risky to compare your boss to King George III.
Swift made the analogy to the court, saying President Bush had overstepped his authority when he bypassed Congress and set up illegal military tribunals to try Guantanamo detainees such as Swift's alleged al-Qaida client, Salim Ahmed Hamdan.
The justices agreed, ruling 5-3 Thursday in favor of dismantling the current tribunal system.
Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.
"I may be one of the most influential lawyers in America," the Seattle University Law School graduate said, "but I won't be in the military much longer. That irony did strike me."
Swift's future in the Navy now rests with another promotion board that is expected to render its decision in the next couple of weeks. Under the military's system, officers need to be promoted at regularly scheduled intervals or their service careers are essentially over.
"The way it works, the die was cast some months ago," he said. "The decision has been made. I don't know what it is yet." But he thinks his chances are slim.
Asked if he believes he was passed over for promotion last year for political reasons, Swift would not speculate.
"I don't know," he said. "I'm not going to worry about it. I didn't volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could."
Swift has worked under two officers as a member of the small team of lawyers defending "enemy combatants" being held at Guantanamo Bay. Both of them spoke highly of Swift Friday and said they gave him very high ratings on his annual review, called a fitness report.
"He's doing a fantastic job," said Swift's current boss at the Office of Military Commissions (tribunals), Marine Col. Dwight Sullivan.
Sullivan spoke of the crucial importance of the case decided Thursday by the Supreme Court. "It's a fundamental constitutional question about the powers of the president," Sullivan said. Asked about Swift's aggressive legal challenge of the commander in chief, Sullivan saluted Swift's "moral courage."
"He has been absolutely fearless is pursuing his client's interests. And also he has exhibited an extraordinary level of legal skill. His legal strategy has been brilliant.
"We all take an oath to protect and defend the Constitution of the United States and he has certainly done that, literally."
Swift spoke Friday about his "immense pride" in the military justice system. "I don't feel that because you join the military you should lose rights. If there is anyone who deserves the protection of those rights, it's the people who are willing to lay down their lives for it."
So the question is will Swift lay down his career because of his vigorous defense of a Yemeni tribesman who was Osama bin Laden's driver in Afghanistan.
Swift's first supervisor at the Office of Commissions was Col. Will Gunn, who said Friday that he gave Swift two annual fitness reports and "I gave him very high ratings overall."
Asked whether he thought politics might have played a role in Swift being bypassed for promotion, Gunn focused on Swift's atypical career as a military lawyer. "Charlie has spent a lot of time as a litigator, a trial advocate. That's really unusual in the JAG. You find that people in the more senior ranks have moved around and proved themselves in a variety of settings."
Most of Swift's career has been spent in the courtroom.
"While Charlie is a brilliant guy, a tenacious litigator, he does not have all the blocks checked like some other folks have," Gunn said. He called it a "breadth-of-experience" issue.
Swift clearly believes that his vigorous defense of Hamdan was, in a very real way, a vigorous defense of military justice and the Constitution.
"If they are calling the commissions (tribunals) military justice, it's got to live up to what military justice is. It means something. It's about the law, not what the leaders want. The greatest thing about the JAG Corps is ... I had the opportunity to work every day in a system I believe in."
Swift figures he'll hear around the second week of the month whether he's been passed over for promotion again. If so, he says, it will be time to dust off the resume.
He doesn't know what might be next, but when asked if he might move back to the Puget Sound area, he said: "I lived in Seattle for 6 1/2 years. I love Seattle."
He proceeded to reminisce fondly about sitting in the Kingdome's outfield bleachers watching the Mariners play. "And my wife is an airplane pilot. She could live anywhere."
Guantanamo's Legal And Medical Challenges
By César Chelala and Alejandro Garro
In 2004, Dr. Robert Jay Lifton reported “increasing evidence that doctors, nurses and medics have been compliant in torture and other illegal procedures in Iraq, Afghanistan and Guantánamo Bay.” The ICRC charged that US interrogators engaged the participation of medical personnel in what the committee called “a flagrant violation of medical ethics.”
http://www.informationclearinghouse.info/article13807.htm
By César Chelala and Alejandro Garro
In 2004, Dr. Robert Jay Lifton reported “increasing evidence that doctors, nurses and medics have been compliant in torture and other illegal procedures in Iraq, Afghanistan and Guantánamo Bay.” The ICRC charged that US interrogators engaged the participation of medical personnel in what the committee called “a flagrant violation of medical ethics.”
http://www.informationclearinghouse.info/article13807.htm
Signing Away the Constitution?
By William Fisher
"Many of the laws that Bush has decided to bypass or overwrite by this method involve the military, where he once again invokes the idea that as commander-in-chief he can ignore any law that seeks to regulate the military."
http://www.informationclearinghouse.info/article13806.htm
By William Fisher
"Many of the laws that Bush has decided to bypass or overwrite by this method involve the military, where he once again invokes the idea that as commander-in-chief he can ignore any law that seeks to regulate the military."
http://www.informationclearinghouse.info/article13806.htm
Guardian finds Afghan witnesses US couldn't :
The case illustrates the egregious flaws that have discredited Guantánamo-style justice and which led the US supreme court to declare such trials illegal on Thursday in a major rebuke to the Bush administration.
http://www.guardian.co.uk/guantanamo/story...1809981,00.html
The case illustrates the egregious flaws that have discredited Guantánamo-style justice and which led the US supreme court to declare such trials illegal on Thursday in a major rebuke to the Bush administration.
http://www.guardian.co.uk/guantanamo/story...1809981,00.html
http://www.nytimes.com/2006/07/01/us/01geneva.html
Detainees May Test Reach of Guantánamo Ruling
By NEIL A. LEWIS
Published: July 1, 2006
WASHINGTON, June 30 — Federal courts will soon have to grapple with the reach of the Supreme Court's ruling this week on terror suspects, including whether detainees at Guantánamo Bay and elsewhere may move to assert their rights under the Geneva Conventions, several human rights officials and academics said Friday.
Video: Ruling on Detainees Nearly all the more than 400 petitions filed by Guantánamo prisoners challenging their detention include a claim that American authorities have violated their rights under what is known as Common Article 3 of the Geneva Conventions, which prohibits torture and cruel, inhumane and degrading treatment.
In its 5-to-3 ruling on Thursday, the court majority said that Common Article 3 could be invoked by an inmate at Guantánamo to challenge the Bush administration's use of military commissions to try him for war crimes.
Bill Goodman, the legal director of the Center for Constitutional Rights, a New York group that has coordinated efforts to file motions known as habeas corpus petitions on behalf of most Guantánamo detainees, said the court ruling provided new impetus to challenge the detentions.
"We think the Supreme Court's statements about the Geneva Conventions revitalizes those petitions," Mr. Goodman said. "It should give them more traction."
Mr. Goodman said that his group would soon file a supplemental motion with the federal appeals court based in Washington that is considering whether Guantánamo detainees may bring habeas corpus challenges to their detentions. He said the motion would emphasize the Supreme Court's holding that individuals may invoke the Geneva Conventions protections against mistreatment.
The Supreme Court ruling overturned a firmly worded opinion from the same federal appeals court that Guantánamo detainees had no recourse to the Geneva Conventions.
In addition to the impact the Supreme Court's ruling may have on the habeas corpus petitions of Guantánamo inmates, lawyers may use it in other ways.
Kenneth Roth, the executive director of Human Rights Watch, a worldwide advocacy group, said that the ruling might be used to challenge detentions at the Bagram Air Base in Afghanistan and perhaps even those of senior officials of Al Qaeda being held in secret jails around the world run by the Central Intelligence Agency.
"What's truly striking about the ruling is that all detainees, even Al Qaeda members, are entitled to the protections of Geneva," Mr. Roth said.
He contended that the detention center at Bagram Air Base north of Kabul was, like Guantánamo, a fixed site unquestionably under American control, meaning that it could be subject to the same rationale used by the court in the Guantánamo ruling. The so-called high value detainees, the senior Qaeda officials, might not be held at a fixed location, he said, but they were permanently in American custody.
Some legal scholars questioned whether the ruling would have that reach but said its greatest impact was in destroying the administration's claims that it could unilaterally decide when coercive treatment was permissible and also assure interrogators they would not be liable for following instructions.
Harold Hongju Koh, the dean of the Yale Law School and an authority on national security law, said that while the ruling had broad implications in allowing individuals who were denied rights guaranteed by treaty to bring lawsuits, there was a more important consequence. The ruling provides "a stunning rejection of the government's approach going back to just after Sept. 11 that it did not have to respond within the framework of international and constitutional law," Mr. Koh said.
He said the court's opinion would strengthen the hand of government officials who had unsuccessfully resisted the administration policymakers who created a system in which the executive branch could impose its policies unilaterally, ignoring treaties and precedents.
Prof. Neal K. Katyal of the Georgetown University Law School, who successfully argued the Guantánamo case before the court, said he was reluctant to conclude that the ruling would have a great impact on other cases. Mr. Katyal said the ruling that the military commissions were unlawful "did not create some kind of free-standing claim in which a detainee can walk into court tomorrow and say, 'Hey, I'm being held in violation of Geneva.' "
But he said the ruling would, nonetheless, "dramatically change the way the administration conducts detention and interrogation operations." He said that even if there was no opportunity to use the Geneva treaties to bring a lawsuit in other areas, officials would now be wary of engaging in behavior that could violate Common Article 3.
"If you're a C.I.A. officer, an interrogator, you have to worry about your liability," Mr. Katyal said. "This administration may not prosecute, but it also cannot inoculate you from the decisions of some future administration. I think individuals are not going to risk that kind of liability."
Deborah N. Pearlstein, a lawyer with Human Rights First and a visiting scholar at Princeton, said that the reach of the ruling had yet to be determined. "The court has squarely teed up the question: What does it mean that the president is bound by the Geneva Conventions and what does it mean for detainees who are now seeking some remedy for the torture and abuse they may have suffered?" Ms. Pearlstein said.
She said that the ruling could give added ammunition to the civil lawsuits brought against American officials like Defense Secretary Donald H. Rumsfeld by Iraqi and Afghan detainees who say they were tortured.
She said it also meant the end of a debate over whether a new Army field manual could include a classified set of abusive interrogation techniques.
Detainees May Test Reach of Guantánamo Ruling
By NEIL A. LEWIS
Published: July 1, 2006
WASHINGTON, June 30 — Federal courts will soon have to grapple with the reach of the Supreme Court's ruling this week on terror suspects, including whether detainees at Guantánamo Bay and elsewhere may move to assert their rights under the Geneva Conventions, several human rights officials and academics said Friday.
Video: Ruling on Detainees Nearly all the more than 400 petitions filed by Guantánamo prisoners challenging their detention include a claim that American authorities have violated their rights under what is known as Common Article 3 of the Geneva Conventions, which prohibits torture and cruel, inhumane and degrading treatment.
In its 5-to-3 ruling on Thursday, the court majority said that Common Article 3 could be invoked by an inmate at Guantánamo to challenge the Bush administration's use of military commissions to try him for war crimes.
Bill Goodman, the legal director of the Center for Constitutional Rights, a New York group that has coordinated efforts to file motions known as habeas corpus petitions on behalf of most Guantánamo detainees, said the court ruling provided new impetus to challenge the detentions.
"We think the Supreme Court's statements about the Geneva Conventions revitalizes those petitions," Mr. Goodman said. "It should give them more traction."
Mr. Goodman said that his group would soon file a supplemental motion with the federal appeals court based in Washington that is considering whether Guantánamo detainees may bring habeas corpus challenges to their detentions. He said the motion would emphasize the Supreme Court's holding that individuals may invoke the Geneva Conventions protections against mistreatment.
The Supreme Court ruling overturned a firmly worded opinion from the same federal appeals court that Guantánamo detainees had no recourse to the Geneva Conventions.
In addition to the impact the Supreme Court's ruling may have on the habeas corpus petitions of Guantánamo inmates, lawyers may use it in other ways.
Kenneth Roth, the executive director of Human Rights Watch, a worldwide advocacy group, said that the ruling might be used to challenge detentions at the Bagram Air Base in Afghanistan and perhaps even those of senior officials of Al Qaeda being held in secret jails around the world run by the Central Intelligence Agency.
"What's truly striking about the ruling is that all detainees, even Al Qaeda members, are entitled to the protections of Geneva," Mr. Roth said.
He contended that the detention center at Bagram Air Base north of Kabul was, like Guantánamo, a fixed site unquestionably under American control, meaning that it could be subject to the same rationale used by the court in the Guantánamo ruling. The so-called high value detainees, the senior Qaeda officials, might not be held at a fixed location, he said, but they were permanently in American custody.
Some legal scholars questioned whether the ruling would have that reach but said its greatest impact was in destroying the administration's claims that it could unilaterally decide when coercive treatment was permissible and also assure interrogators they would not be liable for following instructions.
Harold Hongju Koh, the dean of the Yale Law School and an authority on national security law, said that while the ruling had broad implications in allowing individuals who were denied rights guaranteed by treaty to bring lawsuits, there was a more important consequence. The ruling provides "a stunning rejection of the government's approach going back to just after Sept. 11 that it did not have to respond within the framework of international and constitutional law," Mr. Koh said.
He said the court's opinion would strengthen the hand of government officials who had unsuccessfully resisted the administration policymakers who created a system in which the executive branch could impose its policies unilaterally, ignoring treaties and precedents.
Prof. Neal K. Katyal of the Georgetown University Law School, who successfully argued the Guantánamo case before the court, said he was reluctant to conclude that the ruling would have a great impact on other cases. Mr. Katyal said the ruling that the military commissions were unlawful "did not create some kind of free-standing claim in which a detainee can walk into court tomorrow and say, 'Hey, I'm being held in violation of Geneva.' "
But he said the ruling would, nonetheless, "dramatically change the way the administration conducts detention and interrogation operations." He said that even if there was no opportunity to use the Geneva treaties to bring a lawsuit in other areas, officials would now be wary of engaging in behavior that could violate Common Article 3.
"If you're a C.I.A. officer, an interrogator, you have to worry about your liability," Mr. Katyal said. "This administration may not prosecute, but it also cannot inoculate you from the decisions of some future administration. I think individuals are not going to risk that kind of liability."
Deborah N. Pearlstein, a lawyer with Human Rights First and a visiting scholar at Princeton, said that the reach of the ruling had yet to be determined. "The court has squarely teed up the question: What does it mean that the president is bound by the Geneva Conventions and what does it mean for detainees who are now seeking some remedy for the torture and abuse they may have suffered?" Ms. Pearlstein said.
She said that the ruling could give added ammunition to the civil lawsuits brought against American officials like Defense Secretary Donald H. Rumsfeld by Iraqi and Afghan detainees who say they were tortured.
She said it also meant the end of a debate over whether a new Army field manual could include a classified set of abusive interrogation techniques.
http://www.military.com/blog/featured
Why All The Clapping?
Jul 02, 2006
I will never figure out why the Left is always so happy when our fight against Terrorism suffers setbacks:
The victory dances on the left are veering into hyperventilation, which almost always induces dizziness.
I'm talking about the reaction from lefties to the Supreme Court ruling on the Gitmo detainee Hamdan.
One of the comments on the far left Daily Kos , in which writers purported to analyze the Supreme Court's decision — fair and balanced of course — one writer actually said:
"Per today's decision, the administration appears to have been engaged in war crimes, which are subject to the death penalty."
Can you believe this? We actually have Looney Lefties that swoon when confirmed, captured Terrorists win a hollow legal victory; and instead condemn the United States as "war criminals". Do I understand this correctly? This armed Terrorist organization literally planned and carried out attacks on innocent American civilians at home and abroad, and we're called "war criminals" for wanting to try the armed Terrorist organization members in Military Tribunals? Being called "war criminals", by American Citizens?
What madness is this?
It gets better:
"Though I don't support the death penalty, I would like to see Bush, Cheney and Rummy working the license plate assembly line for, say, 100 years or so."
These are people who evidently would think it is a victory and a cause for celebration if several hundred terrorists walk free. Their hatred for George W. Bush is so strong they seem to actually wish for these terrorists to be returned to their wartime activities in order to be made whole after the degradation and abuse of Gitmo.
If the Gitmo detainees were to return to the U.S. piloting another hijacked plane headed for the new tower on 8th Avenue that houses The New York Times, they might try to wave the terrorists off to another building, but otherwise we deserve it. So come on, jihadis, work your magic.
Once again the lefties are seen cheering terrorists' victories and seem to be pulling for the wrong side. How else is one supposed to interpret jubilation that Gitmo detainees might be released because there is not enough evidence for trial, or the evidence was gained by intelligence methods that cannot be exposed?
Am I living in some alternate reality...?
Why All The Clapping?
Jul 02, 2006
I will never figure out why the Left is always so happy when our fight against Terrorism suffers setbacks:
The victory dances on the left are veering into hyperventilation, which almost always induces dizziness.
I'm talking about the reaction from lefties to the Supreme Court ruling on the Gitmo detainee Hamdan.
One of the comments on the far left Daily Kos , in which writers purported to analyze the Supreme Court's decision — fair and balanced of course — one writer actually said:
"Per today's decision, the administration appears to have been engaged in war crimes, which are subject to the death penalty."
Can you believe this? We actually have Looney Lefties that swoon when confirmed, captured Terrorists win a hollow legal victory; and instead condemn the United States as "war criminals". Do I understand this correctly? This armed Terrorist organization literally planned and carried out attacks on innocent American civilians at home and abroad, and we're called "war criminals" for wanting to try the armed Terrorist organization members in Military Tribunals? Being called "war criminals", by American Citizens?
What madness is this?
It gets better:
"Though I don't support the death penalty, I would like to see Bush, Cheney and Rummy working the license plate assembly line for, say, 100 years or so."
These are people who evidently would think it is a victory and a cause for celebration if several hundred terrorists walk free. Their hatred for George W. Bush is so strong they seem to actually wish for these terrorists to be returned to their wartime activities in order to be made whole after the degradation and abuse of Gitmo.
If the Gitmo detainees were to return to the U.S. piloting another hijacked plane headed for the new tower on 8th Avenue that houses The New York Times, they might try to wave the terrorists off to another building, but otherwise we deserve it. So come on, jihadis, work your magic.
Once again the lefties are seen cheering terrorists' victories and seem to be pulling for the wrong side. How else is one supposed to interpret jubilation that Gitmo detainees might be released because there is not enough evidence for trial, or the evidence was gained by intelligence methods that cannot be exposed?
Am I living in some alternate reality...?
http://seattlepi.nwsource.com/national/115...ush_Powers.html
SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/national/115...ush_Powers.html
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.
SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/national/115...ush_Powers.html
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.
Is our enemy the "terrorists" signatory to the Geneva Convention?? How does it apply to those who are not?? I understand the UCMJ for our people but I don't see where it fits for the enemy.
EUROPEANS WELCOME SUPREME COURT GUANTANAMO RULING, SAY EUROPE MUST HELP CLOSE FACILITY ECCENTRIC STAR (JUNE 30)
http://eccentricstar.typepad.com/public_di...eans_welco.html
GUANTANAMO GRUMBLINGS - VICTOR DAVIS HANSON (WASHINGTON TIMES, JULY 1): Guantanamo is an easy scapegoat through which Europeans can vent their much larger love-hate frustrations with their protector and rival, the hyper-power America.
http://www.washtimes.com/functions/print.p...30-084942-6645r
A SUPREME COURT BLOW FOR BUSH BUT, STILL, "BUSINESS AS USUAL"? EDWARD M. GOMEZ (WORLD VIEWS, SF GATE, JUNE 30)
http://sfgate.com/cgi-bin/blogs/sfgate/det...5&entry_id=6653
ALL EYES ON GUANTANAMO: MOVIE, COURT RULING INTENSIFY FOCUS ON MILITARY PRISONS - JONATHAN CURIEL (SAN FRANCISCO CHRONICLE, JULY 2)
http://www.sfgate.com/cgi-bin/article.cgi?...&type=printable
GUANTANAMO DETAINEES: WHY THEY'RE STILL THERE - CAROL J. WILLIAMS (LOS ANGELES TIME, JULY 2):
http://www.latimes.com/news/printedition/a...1,7335864.story
SEE ALSO
http://www.commondreams.org/views06/0701-23.htm
http://www.dailystar.com.lb/article.asp?ed...597&categ_id=17
http://online.wsj.com/article/SB1151880352...ew_and_outlooks (paid subscription)
http://www.latimes.com/news/printedition/l...1,6299750.story
http://www.tnr.com/doc.mhtml?i=w060626&s=sunstein063006
HURDLE TO CLOSING GUANTANAMO: WHERE TO PUT INMATES - JOSH WHITE (WASHINGTON POST, JULY 2)
http://www.washingtonpost.com/wp-dyn/conte...0100943_pf.html
AT GUANTANAMO, DYING IS NOT PERMITTED: A TIME INVESTIGATION: THE SUPREME COURT HANDED THE PRISONERS AT GITMO A VICTORY, BUT AUTHORITIES THERE CONTINUE TO USE HARSH METHODS TO BREAK ONE OF THEIR MOST COMMON METHODS OF PROTEST -- THE HUNGER STRIKE - ADAM ZAGORIN (TIME, JUNE 30)
http://www.time.com/time/nation/printout/0...1209530,00.html
INSIDE GUANTÁNAMO'S MILITARY TRIBUNAL: DOWN BY LAW - SPENCER ACKERMAN (NEW REPUBLIC, JUNE 30): Thanks to the Supreme Court, if I ever observe a trial of an enemy combatant, I'll see a familiar, comforting sight: justice.
http://www.tnr.com/docprint.mhtml?i=w060626&s=ackerman063006
SUPREME COURT'S WAR ... AND EFFECTS - MARK STEYN (WASHINGTON TIMES, JULY 3): The United States Supreme Court has now blown a hole in an animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals.
http://www.washtimes.com/functions/print.p...02-102209-3151r
http://eccentricstar.typepad.com/public_di...eans_welco.html
GUANTANAMO GRUMBLINGS - VICTOR DAVIS HANSON (WASHINGTON TIMES, JULY 1): Guantanamo is an easy scapegoat through which Europeans can vent their much larger love-hate frustrations with their protector and rival, the hyper-power America.
http://www.washtimes.com/functions/print.p...30-084942-6645r
A SUPREME COURT BLOW FOR BUSH BUT, STILL, "BUSINESS AS USUAL"? EDWARD M. GOMEZ (WORLD VIEWS, SF GATE, JUNE 30)
http://sfgate.com/cgi-bin/blogs/sfgate/det...5&entry_id=6653
ALL EYES ON GUANTANAMO: MOVIE, COURT RULING INTENSIFY FOCUS ON MILITARY PRISONS - JONATHAN CURIEL (SAN FRANCISCO CHRONICLE, JULY 2)
http://www.sfgate.com/cgi-bin/article.cgi?...&type=printable
GUANTANAMO DETAINEES: WHY THEY'RE STILL THERE - CAROL J. WILLIAMS (LOS ANGELES TIME, JULY 2):
http://www.latimes.com/news/printedition/a...1,7335864.story
SEE ALSO
http://www.commondreams.org/views06/0701-23.htm
http://www.dailystar.com.lb/article.asp?ed...597&categ_id=17
http://online.wsj.com/article/SB1151880352...ew_and_outlooks (paid subscription)
http://www.latimes.com/news/printedition/l...1,6299750.story
http://www.tnr.com/doc.mhtml?i=w060626&s=sunstein063006
HURDLE TO CLOSING GUANTANAMO: WHERE TO PUT INMATES - JOSH WHITE (WASHINGTON POST, JULY 2)
http://www.washingtonpost.com/wp-dyn/conte...0100943_pf.html
AT GUANTANAMO, DYING IS NOT PERMITTED: A TIME INVESTIGATION: THE SUPREME COURT HANDED THE PRISONERS AT GITMO A VICTORY, BUT AUTHORITIES THERE CONTINUE TO USE HARSH METHODS TO BREAK ONE OF THEIR MOST COMMON METHODS OF PROTEST -- THE HUNGER STRIKE - ADAM ZAGORIN (TIME, JUNE 30)
http://www.time.com/time/nation/printout/0...1209530,00.html
INSIDE GUANTÁNAMO'S MILITARY TRIBUNAL: DOWN BY LAW - SPENCER ACKERMAN (NEW REPUBLIC, JUNE 30): Thanks to the Supreme Court, if I ever observe a trial of an enemy combatant, I'll see a familiar, comforting sight: justice.
http://www.tnr.com/docprint.mhtml?i=w060626&s=ackerman063006
SUPREME COURT'S WAR ... AND EFFECTS - MARK STEYN (WASHINGTON TIMES, JULY 3): The United States Supreme Court has now blown a hole in an animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals.
http://www.washtimes.com/functions/print.p...02-102209-3151r
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.
Copyright © 2006 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.
Copyright © 2006 Yahoo! Inc. All rights reserved.
Questions or Comments
Privacy Policy -Terms of Service - Copyright/IP Policy - Ad Feedback
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.
Copyright © 2006 The Associated Press. All rights reserved. The information contained in the AP News report may not be published, broadcast, rewritten or redistributed without the prior written authority of The Associated Press.
Copyright © 2006 Yahoo! Inc. All rights reserved.
Questions or Comments
Privacy Policy -Terms of Service - Copyright/IP Policy - Ad Feedback
QUOTE(khesanhvet @ Jul 3 2006, 09:52 AM)
Is our enemy the "terrorists" signatory to the Geneva Convention?? How does it apply to those who are not?? I understand the UCMJ for our people but I don't see where it fits for the enemy.
I repeat my question.
http://www.prospect.org/web/page.ww?sectio...articleId=11698
Congress's Turn
To demagogue Hamdan or not to demagogue Hamdan? That is the question.
By Harold Meyerson
Web Exclusive: 07.06.06
If Democrats are divided, as Republicans gleefully note, about what to do in Iraq, Republicans have reacted to last week's Supreme Court decision striking down the administration's military tribunals in a way that makes clear that they themselves are divided about the rule of law in America.
The majority and concurring opinions in Hamdan v. Rumsfeld told the Bush administration in no uncertain terms that if it wanted to establish some distinct procedures for trying the kinds of prisoners interned at Guantanamo Bay, Congress had to stipulate what those procedures should be. But the opinions said more than that. Writing for the majority, Justice John Paul Stevens also said that whatever procedures were adopted had to comport with Common Article 3 of the Geneva Conventions, which mandates humane treatment for prisoners of war and entitles them to some rights at trial -- such as their, and their attorneys', right to actually attend.
In February 2002, President Bush signed an order saying that the Geneva Conventions did not apply to our war on terrorism, since it was not a war against a nation as such. A memo from the White House counsel one month before had called the Conventions "quaint" and "obsolete." (Good thing nobody asked the office for its assessment of the Bill of Rights.) But the court ruled flatly that Bush's order was wrong. Article 3, Stevens noted, explicitly says that its terms apply even in a "conflict not of an international character." Justice Anthony Kennedy, in his concurring opinion, even had the bad manners to point out that violations of Article 3 were war crimes subject to severe punishment under statutes passed by Congress.
That's a point that the hitherto all-powerful Cheney-Rumsfeld axis has fiercely dismissed. Cheney's chief of staff, David Addington, and Rumsfeld's undersecretary for intelligence, Stephen Cambone, have blocked the Army from issuing a revised field manual for treatment and interrogation of prisoners because it cited Article 3. Overwhelmingly, the military's judge advocates general favored the provision, but if there's one thing the Cheney-Rumsfeld folks have consistently ignored, it's the informed judgment of military professionals.
Now, these battles will shift to Congress -- more particularly, to congressional Republicans. They seem to agree, with the Democrats, that some kind of congressionally sanctioned policy is necessary. But when it comes to drafting laws that comport with the second of the court's mandates -- that the procedures follow Geneva's stipulations on the rights and treatment of prisoners -- they seem, initially, to be all over the map.
On the one hand, some key Republican senators actually feel bound to follow the court's statement of what the law says. Virginia's John Warner, who chairs the Armed Services Committee, has expressed the eminently reasonable concern that if Congress simply ratifies the administration's tribunals and neglects to affirm the Geneva stipulations, the new law will surely be struck down. His colleague, South Carolina's Lindsey Graham, who was a military attorney before he entered politics, has said, "My nation needs both parties working in collaboration with the executive branch to solve the military commission problem."
But what Warner and Graham are saying runs counter to their party's fundamental election strategy this year.
According to Karl Rove -- the guy who actually decrees the strategy -- Republicans will maintain their hold on Congress come November by stressing at every turn that the Democrats are a pre-Sept. 11 party while the Republicans are a post-September 11 party.
The Democrats are concerned with such quaint and obsolete concepts as the rule of law. None of that for the Republicans; they're too tough and realistic.
And so, when Democratic House leader Nancy Pelosi had the temerity to welcome the court's decision, Republican House leader John Boehner responded with a press release that attacked her for advocating "special privileges for terrorists."
Echoing Boehner, the talk-radio thugocracy could speak of little else.
So Republicans have a choice. Working with the Democrats, they could craft a legislative response that incorporates both halves of the court's decision, guaranteeing the legality of the new procedures -- but forfeiting a major opportunity to demagogue against Democrats between now and November. Or, as they do roughly 100 times out of 100, they could simply choose to go for the politics. A bill that gives the force of law to the administration's kangaroo courts could surely pass the House with close to unanimous Republican support. In the Senate, so many Republicans might demur that such a bill could fail. No matter: Some Democrats in both houses would surely vote against such a bill, which Rove and Co. would use to brand the party as one big Osama Enabling Society.
And the rule of law? That's so pre-September 11.
Harold Meyerson is editor-at-large of The American Prospect. This column originally appeared in The Washington Post.
© 2006 by The American Prospect, Inc.
Congress's Turn
To demagogue Hamdan or not to demagogue Hamdan? That is the question.
By Harold Meyerson
Web Exclusive: 07.06.06
If Democrats are divided, as Republicans gleefully note, about what to do in Iraq, Republicans have reacted to last week's Supreme Court decision striking down the administration's military tribunals in a way that makes clear that they themselves are divided about the rule of law in America.
The majority and concurring opinions in Hamdan v. Rumsfeld told the Bush administration in no uncertain terms that if it wanted to establish some distinct procedures for trying the kinds of prisoners interned at Guantanamo Bay, Congress had to stipulate what those procedures should be. But the opinions said more than that. Writing for the majority, Justice John Paul Stevens also said that whatever procedures were adopted had to comport with Common Article 3 of the Geneva Conventions, which mandates humane treatment for prisoners of war and entitles them to some rights at trial -- such as their, and their attorneys', right to actually attend.
In February 2002, President Bush signed an order saying that the Geneva Conventions did not apply to our war on terrorism, since it was not a war against a nation as such. A memo from the White House counsel one month before had called the Conventions "quaint" and "obsolete." (Good thing nobody asked the office for its assessment of the Bill of Rights.) But the court ruled flatly that Bush's order was wrong. Article 3, Stevens noted, explicitly says that its terms apply even in a "conflict not of an international character." Justice Anthony Kennedy, in his concurring opinion, even had the bad manners to point out that violations of Article 3 were war crimes subject to severe punishment under statutes passed by Congress.
That's a point that the hitherto all-powerful Cheney-Rumsfeld axis has fiercely dismissed. Cheney's chief of staff, David Addington, and Rumsfeld's undersecretary for intelligence, Stephen Cambone, have blocked the Army from issuing a revised field manual for treatment and interrogation of prisoners because it cited Article 3. Overwhelmingly, the military's judge advocates general favored the provision, but if there's one thing the Cheney-Rumsfeld folks have consistently ignored, it's the informed judgment of military professionals.
Now, these battles will shift to Congress -- more particularly, to congressional Republicans. They seem to agree, with the Democrats, that some kind of congressionally sanctioned policy is necessary. But when it comes to drafting laws that comport with the second of the court's mandates -- that the procedures follow Geneva's stipulations on the rights and treatment of prisoners -- they seem, initially, to be all over the map.
On the one hand, some key Republican senators actually feel bound to follow the court's statement of what the law says. Virginia's John Warner, who chairs the Armed Services Committee, has expressed the eminently reasonable concern that if Congress simply ratifies the administration's tribunals and neglects to affirm the Geneva stipulations, the new law will surely be struck down. His colleague, South Carolina's Lindsey Graham, who was a military attorney before he entered politics, has said, "My nation needs both parties working in collaboration with the executive branch to solve the military commission problem."
But what Warner and Graham are saying runs counter to their party's fundamental election strategy this year.
According to Karl Rove -- the guy who actually decrees the strategy -- Republicans will maintain their hold on Congress come November by stressing at every turn that the Democrats are a pre-Sept. 11 party while the Republicans are a post-September 11 party.
The Democrats are concerned with such quaint and obsolete concepts as the rule of law. None of that for the Republicans; they're too tough and realistic.
And so, when Democratic House leader Nancy Pelosi had the temerity to welcome the court's decision, Republican House leader John Boehner responded with a press release that attacked her for advocating "special privileges for terrorists."
Echoing Boehner, the talk-radio thugocracy could speak of little else.
So Republicans have a choice. Working with the Democrats, they could craft a legislative response that incorporates both halves of the court's decision, guaranteeing the legality of the new procedures -- but forfeiting a major opportunity to demagogue against Democrats between now and November. Or, as they do roughly 100 times out of 100, they could simply choose to go for the politics. A bill that gives the force of law to the administration's kangaroo courts could surely pass the House with close to unanimous Republican support. In the Senate, so many Republicans might demur that such a bill could fail. No matter: Some Democrats in both houses would surely vote against such a bill, which Rove and Co. would use to brand the party as one big Osama Enabling Society.
And the rule of law? That's so pre-September 11.
Harold Meyerson is editor-at-large of The American Prospect. This column originally appeared in The Washington Post.
© 2006 by The American Prospect, Inc.
http://www.tompaine.com/articles/2006/07/0...s_to_hamdan.php
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 fighte
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 fighte