Supreme Court Rules Bush's Military Tribunals Illegal

[Astronuc]

http://news.yahoo.com/s/ap/20060629/ap_on_go_su_co/scotus_guantanamo_trials_4;_ylt=AnAA3ePu334f9K110LZV6yg3NiUi;_ylu=X3oDMTBiMW04NW9mBHNlYwMlJVRPUCUl

http://news.yahoo.com/fc/world/guantanamo_detainees

WASHINGTON - In a 5-3 ruling (with Chief Justice John Roberts recusing himself), the Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees. The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

It's about time.

Imagine that - this president doing something illegal! Who'd've thought.

Sad though that three Justices sided with the administration.

 

[arildno]

I guess Tony Scalia opposed that ruling..:

 

[Rach3]

This is interesting:

WASHINGTON - 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.

http://news.yahoo.com/fc/world/guantanamo_detainees

It's illegal under both U.S. law and the Geneva Conventions, but he seeking to work around that with new legislation. But how can he legislate around the Geneva Conventions, which are international treaties, without effectively withdrawing from them?

 

[SOS2008]

Damn liberal activist judges (except three ). What are they thinking, supporting the Rule of Law and all. Geneva convention? We don't need no stinking Geneva convention. I thought we threw that out! < sarcasm >

 

[BobG]

This is interesting:

http://news.yahoo.com/fc/world/guantanamo_detainees

WASHINGTON - 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.

It's illegal under both U.S. law and the Geneva Conventions, but he seeking to work around that with new legislation. But how can he legislate around the Geneva Conventions, which are international treaties, without effectively withdrawing from them?

His comment is in response to Justice Breyer's opinion, which he prepared separately, even though siding with the majority:

http://www.msnbc.msn.com/id/13592908/

In his own opinion siding with the majority, Justice Stephen Breyer said that “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.

One thing I've noticed is that the justices don't seem to get along very well anymore. Thomas read his dissenting opinion from the bench - something that's rarely done and never by Thomas before. In the Kansas death penalty case, Souter's and Scalia's opinions seemed to go off on a personal debate between the two that had little, if any, relevance to the case at hand. There was another case very recently where the dissenting opinion was read from the bench, but I can't recall which case, now.

 

[Bystander]

SCOTUS says, "Take no prisoners." So be it.

 

[Rach3]

Wow this is screwed up, look at what Clarence Thomas did:

Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

http://www.nytimes.com/2006/06/29/w...&en=1aa0983620edfa9b&ei=5094&partner=homepage

Is that out of place or what?

 

[SOS2008]

The Myth of Al Qaeda Bolstered by Torture

Legality aside, these prisons are a waste of tax dollars and most of all America's reputation--including the "black" or secret prisons. Many journalists have debunked the Bush/Cheney/Rumsfeld myth of Al Qeada and the so-called war on terror. A must read is Ron Suskind's most recent book "THE ONE PERCENT DOCTRINE." From one of many reviews:

One example out of many comes in Ron Suskind's gripping narrative of what the White House has celebrated as one of the war's major victories: the capture of Abu Zubaydah in Pakistan in March 2002. Described as al-Qaeda's chief of operations even after U.S. and Pakistani forces kicked down his door in Faisalabad, the Saudi-born jihadist was the first al-Qaeda detainee to be shipped to a secret prison abroad. Suskind shatters the official story line here.

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. ...Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like.

..."I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/19/AR2006061901211.html?sub=AR

June 28, 2006 - The capture of Ibn Al-Shaykhal-Libi was said to be one of the first big breakthroughs in the war against Al Qaeda. It was also the start of the post-9/11 mythologizing of the terror group. According to the official history of the Bush administration, al-Libi (a nom de guerre meaning "the Libyan") was the most senior Al Qaeda leader captured during the war in Afghanistan after running a training camp there for Osama bin Laden. Al-Libi was sent on to Egypt, where under interrogation he was said to have given up crucial information linking Saddam Hussein to the training of Al Qaeda operatives in chemical and biological warfare. His story was later used publicly by Secretary of State Colin Powell to justify the war in Iraq to the world.

The reality, as we have learned since—far too late, of course, to avert the war in Iraq—is that al-Libi made up that story of Iraq connections, probably because he was tortured by the Egyptians (or possibly Libyan intelligence officers who worked with them). But there's even more to this strange tale that hasn't been revealed. According to Numan bin-Uthman, a former fellow jihadi of al-Libi's who has left the movement and is based in London, al-Libi was never a member of Al Qaeda at all.

http://www.msnbc.msn.com/id/13600653/site/newsweek/

In the meantime scores of prisoners have been released after years of detention because evidence was lacking. Yet Justice Thomas said: "the decision hobbles the president's ability to wage war against a stateless enemy fighting on a new landscape for combat." To hell with Justice Thomas and Bush. There is no excuse. We can combat terrorism and still abide by the Rule of Law and international treaties. Indeed we must, or we are no better than the lawless terrorists we condemn.

 

[Skyhunter]

Yet Justice Thomas said: "the decision hobbles the president's ability to wage war against a stateless enemy fighting on a new landscape for combat." To hell with Justice Thomas and Bush. There is no excuse. We can combat terrorism and still abide by the Rule of Law and international treaties. Indeed we must, or we are no better than the lawless terrorists we condemn.

What is hobbling Americas efforts against stateless enemy fighters is the huge distraction of Iraq. Thomas should read the paper sometime.

http://www.kentucky.com/mld/heraldleader/news/world/14926687.htm

U.S. losing war on terror, experts say
By Bob Deans
COX NEWS SERVICE
WASHINGTON - The United States is losing its fight against terrorism and the Iraq war is the biggest reason why, more than eight of 10 American terrorism and national security experts concluded in a poll released yesterday.

One participant, a former CIA official who described himself as a conservative Republican, said the war in Iraq has provided global terrorist groups with a recruiting bonanza, a valuable training ground and a strategic beachhead at the crossroads of the oil-rich Persian Gulf and Turkey.

They are being generous when they say 8 of 10, 87% say the Iraq war is hurting the war on terror effort.

 

[Gokul43201]

He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

Wow! Unbelievable!

 

[kyleb]

Heh, that is nothing compared to what he said here:

The plurality’s willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.

 

[Gokul43201]

Heh, that is nothing compared to what he said here:

In that statement, he is addressing a matter that at least ties into the legality of the case.

The other statement (the one quoted by Rach) has nothing to do with the legality. Instead he appears to be assigning merit on the basis of factors other than legality.

 

[kyleb]

I agree on your assessment of what Rach presented. But as for what I quoted, I'm not sure how that can be taken as anything but an outright denial of his responsibly to check and balance the power of the other branches.

 

[Astronuc]

an outright denial of his responsibly to check and balance the power of the other branches.

Well, Rove's plan is a one-party state, where his party controls Executive, Legislative and Judicial branches of the Federal and State governments. One would have to concede that it would be more efficient - no need for elections.

 

[BobG]

Wow this is screwed up, look at what Clarence Thomas did:

Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

http://www.nytimes.com/2006/06/29/w...&en=1aa0983620edfa9b&ei=5094&partner=homepage

Is that out of place or what?

Polarization within SCOTUS? It almost looks like the Supreme Court has been reduced to one person: Justice Kennedy. A lot of 5 vote majorities will cause a lot of frustration with the other eight.

It would probably be unfair to compare Roberts in his first year as Chief Justice to someone who held the position for years, but it will probably be a stormy court for a while.

 

[NOideaWHATimDOING]

Agreed

The fact that most Americans aren't tracking the sum of all the changes at once concerns me the most, seeing only a spreckle here and there. Let's add it up...

Police no longer need to announce themselves when serving warrants.
When arrested, we don't get an atty for up to 12 weeks
They can tap any phone line THEY deem worthy, without judicial oversight
They have pulled the complete history on more than 30,000 libraries/without any judicial device i.e. warrants or subpeona JUST the NSA letter head
The wrong look or name can get you blocked from travel
They are obviously in the banking industry more fully than before

When do they issue the SS for police officers?

Rove, who got 95% of this country to agree on a war with a country that had no Navy, Air Force or a MBT main battle tank. Ya, that was a SERIOUS threat to our freedom.

Former Navy (FCT) Suface Warfare
Voter
Todd

 

[Gokul43201]

SCOTUS says, "Take no prisoners."

How did you arrive at that?

From what I've understood, the jist of what SCOTUS said is that prisoners taken during the war must be given all the PoW privileges afforded by Geneva. If an prisoner is not a PoW, s/he must be afforded the rights given to a US citizen. And further, that the Congress has not given Bush the power to hold prisoners that can be denied protection under both Geneva as well as the US legal system.

 

[selfAdjoint]

The fact that most Americans aren't tracking the sum of all the changes at once concerns me the most, seeing only a spreckle here and there. Let's add it up...

Police no longer need to announce themselves when serving warrants.
When arrested, we don't get an atty for up to 12 weeks
They can tap any phone line THEY deem worthy
They have pulled the complete history on more than 30,000 libraries/without any judicial device i.e. warrants or subpeona JUST the NSA letter head
The wrong look or name can get you blocked from travel
They are obviously in the banking industry more fully than before

When do they issue the SS for police officers?

Rove, who got 95% of this country to agree on a war with a country that had no Navy, Air Force or a MBT main battle tank. Ya, that was a SERIOUS threat to our freedom.

Former Navy (FCT) Suface Warfare
Voter
Todd

Swell post! Al Qaeda wanted to scare us, panic us, and he did it! My own test case was the reaction of Dahlia Lithwick, the supreme court interpreter over at Slate, to the Patriot Act. Although she has the rep of a real devotee of the Constitution, she was critically soft on the Patriot Act and its (to me ) unconstitutional provisions. And the reason she gave, reading between her lines, was that she was in an al Qaeda funk and ready to buy any bunkum anti-al Qaeda nostrum the Bush administration offered.

"I do not know when fascism will come to the US, but I know that when it comes it will be called Americanism." A rough memory of Will Rogers.

 

[selfAdjoint]

How did you arrive at that?

From what I've understood, the jist of what SCOTUS said is that prisoners taken during the war must be given all the PoW privileges afforded by Geneva. If an prisoner is not a PoW, s/he must be afforded the rights given to a US citizen. And further, that the Congress has not given Bush the power to hold prisoners that can be denied protection under both Geneva as well as the US legal system.

Even Bush is now quoted as saying the decision "Doesn't mean the terrorists will be put out on the street." Get with the program, Bystander!

 

[Bystander]

How did you arrive at that?

You sum up the sources of the conclusion pretty well in your next paragraph:

From what I've understood, the jist of what SCOTUS said is that prisoners taken during the war must be given all the PoW privileges afforded by Geneva. If an prisoner is not a PoW, s/he must be afforded the rights given to a US citizen. And further, that the Congress has not given Bush the power to hold prisoners that can be denied protection under both Geneva as well as the US legal system.

The lacunae in jus gentium under which the situation must be examined are the same as those under which the Lafayette Escadrille of WW I, the International Brigade of the Spanish Civil War, the American Eagle Squadron and AVG of WW II, several thousand Canadians in U. S. service during the Vietnam era, the FFL in several conflicts, and who knows how many others operated: citizens of "neutral" third foreign powers engaged in armed conflicts; the "neutral" foreign powers recognizing those citizens, but not barring/banning their participation in the conflicts unless they had been taken as PoWs and repatriated to be interned; and, one difference, the conflicts taking place between organized, recognized political or demographic entities (nations), or at least some semblance of same (SCW).

Geneva and Hague recognize "free agents" to the extent that occupying powers are expected to maintain law and order, public services, and whatnot for resident noncombatants during their occupations; this is called "martial law." Hundred years ago, "military tribunals" were composed of two privates and a Pfc; take a prisoner and check for uniform, ID, and arms; "No" to first two questions and "Yes" to third? Bang. Every tenth or hundredth would get a public tribunal and execution for purposes of "deterrence."

Until such time as Geneva and Hague revisit the questions of "martial law," piracy, brigandage, freebooting, and general hoodlum behavior within the context of the laws of war, SCOTUS is doing the world a disservice by sticking its noses into the issue. This is an international issue, not domestic. What do you do with a bunch of hoodlums who get together in Afghanistan or Iraq, or elsewhere, to shoot people, kidnap people and demand ransom, and generally raise hell to no point or purpose beyond their own entertainment.

"Take no prisoners?" Troops have very little time to read rulings and dissenting opinions --- they tend to "condense" things to the kernel, particularly when "in contact." Has it got the potential to get completely out of hand in the field? Certainly. Again, very poorly thought through by the "best legal minds in the country."

 

[selfAdjoint]

You sum up the sources of the conclusion pretty well in your next paragraph:



The lacunae in jus gentium under which the situation must be examined are the same as those under which the Lafayette Escadrille of WW I, the International Brigade of the Spanish Civil War, the American Eagle Squadron and AVG of WW II, several thousand Canadians in U. S. service during the Vietnam era, the FFL in several conflicts, and who knows how many others operated: citizens of "neutral" third foreign powers engaged in armed conflicts; the "neutral" foreign powers recognizing those citizens, but not barring/banning their participation in the conflicts unless they had been taken as PoWs and repatriated to be interned; and, one difference, the conflicts taking place between organized, recognized political or demographic entities (nations), or at least some semblance of same (SCW).

Geneva and Hague recognize "free agents" to the extent that occupying powers are expected to maintain law and order, public services, and whatnot for resident noncombatants during their occupations; this is called "martial law." Hundred years ago, "military tribunals" were composed of two privates and a Pfc; take a prisoner and check for uniform, ID, and arms; "No" to first two questions and "Yes" to third? Bang. Every tenth or hundredth would get a public tribunal and execution for purposes of "deterrence."

Until such time as Geneva and Hague revisit the questions of "martial law," piracy, brigandage, freebooting, and general hoodlum behavior within the context of the laws of war, SCOTUS is doing the world a disservice by sticking its noses into the issue. This is an international issue, not domestic. What do you do with a bunch of hoodlums who get together in Afghanistan or Iraq, or elsewhere, to shoot people, kidnap people and demand ransom, and generally raise hell to no point or purpose beyond their own entertainment.

"Take no prisoners?" Troops have very little time to read rulings and dissenting opinions --- they tend to "condense" things to the kernel, particularly when "in contact." Has it got the potential to get completely out of hand in the field? Certainly. Again, very poorly thought through by the "best legal minds in the country."

I see here you have a somewhat more nuanced and rational objection to the decision than your earlier post would have suggested, and I apologize for my snarky response to that post.

But I think you are mistaken even so. The Lafayette Ecadrille and the Abraham Lincoln Brigade were uniformed units in a legitimate state's armed forces. Note that in the case of the Spanish Civil war, the socialists were the legitimate elected government and Franco's forces were the rebels. The paricipation of different Nations in a coalition force, such as the "Iraqi Freedom" force, is also not at all problematical either in US law or in international law.

Perhaps some of the current detainees fall into these categories, for instance fighting as recognized forces of the Taliban while it was still the government of Afghanistan. But the al Qaida members as such do not qualify for that, since al Qaida is not recognized by any legitimate state. It may indeed be true that we need new legal doctrine to handle this NGO/asymmetric warfare innovation, but whatever we devise should not vary from the legal principles that we and all civilized nations have devised for warriors.

Your animadversions on the early days of modern warfare are in the first place not completely accurate ("Two privates and a corporal" is surely a fantasy?), and in the second place beside the point. What has happened both in early times and in all conflicts to date is that some soldiers in the heat of battle will massacre prisoners. For a couple of centuries now that has been defined as a War Crime. And the use of torture and humilation of prisoners is forbidden by both the US Constitution ("Cruel and unusual punishment") and the common law of nations, the Geneva convention.

Resting their decision on these bases put the majority on very solid ground.

 

[Astronuc]

Troops have very little time to read rulings and dissenting opinions --- they tend to "condense" things to the kernel, particularly when "in contact." Has it got the potential to get completely out of hand in the field? Certainly. Again, very poorly thought through by the "best legal minds in the country."

This is a good point, and one for concern in the current military action in Iraq and Afghanistan.

Troops under fire do not have time to check policy - they must react immediately if to survive.

However, it is up to the military authorities and the national government to 'train' the troops to understand their responsibilities in the field. Then the issue becomes one of - does the current administration observe 'appropriate conduct' in the battlefield - or does the current administration condone and encourage 'anything goes'? Certainly, the current administration has arranged for thousands of 'mercenaries' (private contractors) who they claim are not constrained by US law or the Geneva convention.

Most of the detainees at Guantánamo have been released, which would seem to indicate that they weren't terrorists, but rather innocent people arbitrarily swept up. That in itself would seem to constitute 'terrorism'.

The Bush administration exhibits contempt for due process, the rule of law, and the Constitution - even to the point of attempting to make 'legal' something which the Supreme Court has determined is illegal.

 

[Bystander]

Article I, Section 8, lines 9, 10, 11, The Congress shall have the power:

9) To constitute tribunals inferior to the Supreme Court;
10) To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
11) To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;​

(snip)But I think you are mistaken even so. The Lafayette Ecadrille and the Abraham Lincoln Brigade were uniformed units in a legitimate state's armed forces.

Correct. The point being that in most legal codes it is not illegal for citizens to participate in wars in which their nation is not involved; it is, therefore, damned difficult to intern, detain, prosecute, deport, repatriate, or otherwise handle third party nationals under the best of circumstances (when they do conduct themselves within the strictures of international law).

(snip)Perhaps some of the current detainees fall into these categories, for instance fighting as recognized forces of the Taliban while it was still the government of Afghanistan.

In which case, they're PoWs, and covered by Geneva and Hague, and are to be detained until the Taliban formally surrenders. Ain't no mo' Taliban --- Geneva and Hague do not provide for the existence of cultures lacking even the structural permanence and cohesion of L.A.'s street gangs. Apply Article I, Section 8, line 10? None of SCOTUS' business.

But the al Qaida members as such do not qualify for that, since al Qaida is not recognized by any legitimate state. It may indeed be true that we need new legal doctrine to handle this NGO/asymmetric warfare innovation, but whatever we devise should not vary from the legal principles that we and all civilized nations have devised for warriors.

"Innovation?" Nothing new --- Republican Rome chased bandits and pirates, Imperial Rome chased bandits and pirates, as did every nation before and since. "Warriors?" Since when are ski-masked murderers and kidnappers "warriors?" This is already covered in Geneva and Hague under maintaining public order, safety, and services for noncombatants in occupied territories, "martial law."

Your animadversions on the early days of modern warfare are in the first place not completely accurate ("Two privates and a corporal" is surely a fantasy?),

They most certainly are accurate. Don't kid yourself for a minute that troops are going to fart around four years on a Moussaoui; depending on conditions, standing orders change from "shoot on sight" to "apprehend for formal sentencing" and back. "Two privates and a private first class" constitute a "formal" tribunal under "fluid" circumstances --- two fingers and a thumb in Flanders during WW I. Third parties, amateurs, freelancers, freebooters, call 'em what you wish --- ain't welcome on a battlefield --- can't trust 'em, can't depend on 'em, can't turn your back on 'em, and if they're "on your side," they're going to piss off the opposition more often than not to the point that things get really nasty --- at which point, Geneva and Hague conventions are applied in the most expeditious manner possible.

and in the second place beside the point.

It's exactly THE point --- Geneva and Hague provide for the dispositions of the detainees (hemp, sisal, nylon, or 9mm) --- they do not provide for delays of the length that have occurred in the present instance. That needs to be spelled out in an international venue; "individuals detained for criminal activities in war zones or occupied territories shall be tried and sentenced, if found guilty, within six months, or repatriated" --- something along those lines.

(snip)Resting their decision on these bases put the majority on very solid ground.

Article I, Section 8, lines 9, 10 reserve jurisdiction for Congress; the establishment of tribunals is implicit in a declaration of war, and that authority is invested in the troops; "legal due process" is served through the judgments of the individuals charged with its exercise. The "majority" have been to law school, they've read the Constitution, they're politicking, or legislating from the bench --- no surprise. There hasn't been a qualified individual on that bench for 60-70 years --- again, no surprise, given that they've got to be approved by the Senate. The majority decision reads like a kindergarten essay on "The Joys of Being a Lamebrained Liberal," and the dissents read like some second graders confabulation of Grimm's Fairy Tales, Aesop's Fables, and a late 20th century high school government book written by a panel of M. Eds. and Ed. Ds.. They are all senile incompetents. The lawyers who presented arguments have to be likewise totally incompetent. This is the state of the judiciary in the U. S. going into the 21st century --- pathetic.

You do understand the nature of the legal problems vis a vis jus gentium, and federal code? The detainees can NOT be released under international law, Geneva, or Hague --- their home nations are in most cases unable or unwilling to supervise their internment properly --- that is, they're apt to be back in the war zone tout de suite, constituting a "threat to life," therefore, verboten. (There may be supervision of internment through exercise of execution, mutilation, or who knows what else by "cooperative" governments --- again, G. & H. problems for the U. S..) They aren't PoWs in any real sense of the word, just a buncha punks out raising hell --- Geneva and Hague are written on the premise that even freebooters have the sense god gave garbanzos, and will align themselves with a political entity that has some formal recognition within the international community; implicit in the structure and language of Geneva and Hague is the assumption that piracy, brigandage, and international outlawry are extinct --- don't ask me where the framers of the documents picked up such an idea, but my inference is that that is the assumption they've made --- incorrectly it appears --- going to have to be addressed. Same problem with federal code --- Congress has never sat down and defined "piracy, brigandage, freebooting," and whatever else might fall under Article I, Section 8, line 10 --- they are going to have to do that --- in a sane, sensible, rational fashion? Which Congress we talkin' 'bout?

Troops have very little time to read rulings and dissenting opinions --- they tend to "condense" things to the kernel, particularly when "in contact." Has it got the potential to get completely out of hand in the field? Certainly. Again, very poorly thought through by the "best legal minds in the country."

This is a good point, and one for concern in the current military action in Iraq and Afghanistan.

It's a "point for concern" in any military action --- hence, Article I, Section 8, lines 9-11, reserving such power to Congress.

(snip)However, it is up to the military authorities and the national government to 'train' the troops to understand their responsibilities in the field. Then the issue becomes one of - does the current administration observe 'appropriate conduct' in the battlefield - or does the current administration condone and encourage 'anything goes'?

We'll give Willy his share of the credit here --- large part of his $50 billion surplus was posted at the expense of training (and weeding) the white trash guard and reserve units that screwed up at Abu Graib. "We'd spend the next week going over the UCMJ and Hague and Geneva conventions, but the budget won't cover it, so you do what you think's right." Is that what you mean by "anything goes?"

Certainly, the current administration has arranged for thousands of 'mercenaries' (private contractors) who they claim are not constrained by US law or the Geneva convention.

Interesting question --- just what is the status of a "soldier of fortune?" 'Nother thing for Geneva and Hague redux.

Most of the detainees at Guantánamo have been released, which would seem to indicate that they weren't terrorists, but rather innocent people arbitrarily swept up.

This is a "leap of faith" (or politics), rather than logic. "Rat out" a cache, safehouse, or hideout, and "get out of jail free" --- anybody's guess.

(snip)The Bush administration exhibits contempt for due process, the rule of law, and the Constitution - even to the point of attempting to make 'legal' something which the Supreme Court has determined is illegal.

--- as does SCOTUS --- eminent domain decision plus pathetic dissents, this decision plus pathetic dissents. You're looking at nine people who are desperately in need of a career change.

 

[Gokul43201]

According to what I heard over the radio (NPR, perhaps) a couple days ago, the Military Tribunals are set up such that:

The defendant is not permitted to be present during the hearing, and hence, may not refute any of the evidence produced against him/her;

Neither is the defendant's legal counsel; and

Neither the defendants nor their counsel are even granted access to the "incriminating evidence".

What really, is the point of such a tribunal?

 

[Bystander]

(snip)What really, is the point of such a tribunal?

Staffed with law school graduates, probably nothing --- facts exist whether or not they are "admissable" as evidence --- the "discovery" process, "Miranda," assorted SCOTUS rulings on collection of evidence, "probable cause," and the other rituals of "due process" that get Elizabeth Manning and Danny Aravelo off with 2 yrs. for infanticide aren't "traditions" within the field of "martial law;" you can not assume that since that legal area has not been "civilized" to the point that the U. S. streets "aren't safe" (exaggeration --- too many weirdos loose, just the same), that it is incapable of arriving at "just" dispositions of cases.

 

[Gokul43201]

But this doesn't even fall in with traditional process for military law, does it? For instance, if a Naval Officer is being tried (and defended?) by the OJAG, the defense is afforded a whole lot more power to present its case than these special tribunals give the Gitmo inmates.

...you can not assume that since that legal area has not been "civilized" to the point that the U. S. streets "aren't safe" (exaggeration --- too many weirdos loose, just the same), that it is incapable of arriving at "just" dispositions of cases.

I don't assume it's impossible, but I do find it hard to believe that a "just" verdict is overwhelmingly likely under the setup of the special tribunals.

 

[Bystander]

But this doesn't even fall in with traditional process for military law, does it?

It's not a "TV" trial. It's not the "hearing" from Flight of the Intruder. Traditional? Sure --- "What do we do with this one?"

(snip)I don't assume it's impossible, but I do find it hard to believe that a "just" verdict is overwhelmingly likely under the setup of the special tribunals.

The "verdict" is already in: taken in a war zone; voluntary (or involuntary) surrender; armed or not; in the vicinity of 23 mutilated civilian corpses, or not; or, in the vicinity of a firefight, and looked like a goatherd. The tribunals are reviewing the facts of the individual cases and making determinations of the "dispositions" of the individual prisoners --- "this one looks like a goatherd, acts like a goatherd, doesn't seem to know anyone else here, no one talks to him, we haven't gotten anything from him in interrogations but, 'Wow! Did you see that big noise just before you took me away,' and we might as well send him home with his salatium, and whatever else we can do for him. Okay, next case."

Roy Bean, or Solomon sitting? Both are statistical extremes. "Jack Armstrong," all-American boy? Uh-uh --- odds are, someone who'd rather be home mowing the lawn --- probably overinclined to lenience, but still aware that the job has to be done correctly --- turn the wrong ones loose, and some poor 11B has to hunt 'em down the second time (ain't baseball, no third) --- "tribunal," means three, and they aren't all going to be synchronous in their reactions, moderates severity. "Hang this SOB!" --- going to get reviewed every time, all the way to the White House.

 

[kyleb]

Bystander, in what sense are you suggesting "tribunal" means three?

But as for the basis of your position; yeah, I suppose we don't need to bother with complexities of adhering to our established standards of justice when one can simply appease the need for such integrity though faith.

 

[Amp1]

The SC left open the legislating of powers the Prez wants in conjuntion to tribunals. Even so, this and other admins have exempted itself from the universality of moral and legal mores/standings/requirements that are imposed on other weaker states. A belaboured point is the US terrorist activities against Nicaragua, which were condemed and convicted by the UN and World Court respectively. The US just ignored it and basically disallowed an aplication of the laws and treaties it held other states to ,to apply for US transgressions.

 

[Gokul43201]

The "verdict" is already in: taken in a war zone; voluntary (or involuntary) surrender; armed or not; in the vicinity of 23 mutilated civilian corpses, or not; or, in the vicinity of a firefight, and looked like a goatherd. The tribunals are reviewing the facts of the individual cases and making determinations of the "dispositions" of the individual prisoners --- "this one looks like a goatherd, acts like a goatherd, doesn't seem to know anyone else here, no one talks to him, we haven't gotten anything from him in interrogations but, 'Wow! Did you see that big noise just before you took me away,' and we might as well send him home with his salatium, and whatever else we can do for him. Okay, next case."

First off I'm growing rather disbelieving of these so called facts of the case. "This one was found with an AK-47, and we had to kill him before he shot us". Facts of the case?

Secondly, I think I may be misconstruing your post but would your argument be any different if prisoners were being lined up at Gitmo and "bang-bang-bang"? Would SCOTUS be out of line for ruling on the legality of something like that?

And for more news on this:

2 in Senate urge bill to curb ruling on tribunals


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 Conventions 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 Qaeda.

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."

http://www.chicagotribune.com/news/nationworld/chi-0607030135jul03,1,7229609.story?coll=chi-newsnationworld-hed

 

[Astronuc]

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."

In that regard,

G.I.'s Investigated in Slayings of 4 and Rape in Iraq
By EDWARD WONG

The investigation is the fourth into suspected killings of unarmed Iraqis by American soldiers announced by the military in June.

The investigation is the fourth into suspected killings of unarmed Iraqis by American soldiers announced by the military in June. In May, it was disclosed that the military was conducting an inquiry into the deaths of 24 civilians in Haditha last November.

NY Times, July 1, 2006

Apparently in the latest case, one soldier came forward out of guilt and gave evidence as to the crimes (or alleged crimes).

McConnell's statement seems to reflect an imperious notion that the US should not be subject to any constraints on its behavior - not even international law. In some respects, e.g. using threat of military force to enforce its belief, the Bush administration is acting in a terroristic manner, and that would mean that the US is a terrorist state. That further implies that the admininstration is participating IN the war on/of terrorism as a participating terrorist entity.

 

[Gokul43201]

McConnell's statement seems to reflect an imperious notion that the US should not be subject to any constraints on its behavior - not even international law.

I don't think he was making the former point (no constraints), but I do believe he thinks they should not be bound by Geneva. Perhaps, the only requirement he wishes be imposed on them is the pertinent code of conduct for the branch of military they serve in? Or maybe something else - I don't know.

 

[Bystander]

First off I'm growing rather disbelieving of these so called facts of the case. "This one was found with an AK-47, and we had to kill him before he shot us". Facts of the case?

I'm NOT on the tribunals --- I don't have access to the contents of the case files --- you're familiar with "instructional examples?" The capture information is all on record in what were called "spot reports" 35-40 years ago --- "blankth squad, blankth platoon, Co. blank, blankth of the blankth, blankth Bde., blankth Div., on xx-yy-zz at mnop hrs local (ijkl, Zulu), apprehended n personnel identified as follows ----"

Secondly, I think I may be misconstruing your post but would your argument be any different if prisoners were being lined up at Gitmo and "bang-bang-bang"? Would SCOTUS be out of line for ruling on the legality of something like that?

Article I, Section 8, lines 9, 10, 11 --- it IS the province of Congress, NOT of SCOTUS to decide the dispositions of this category of cases. Can Congress be strung up by the numbers by the Hague? Sure.

These are NOT citizens of the United States, nor, aliens present in the U. S. under valid passports and visas, therefore, NOT wards of SCOTUS. These are not agents or members of uniformed services of any recognized government. Very few are citizens of Afghanistan or Iraq. They have no legal status until Congress fulfills its Constitutional obligations, and/or, Geneva and the Hague sit down and deal with definitions, procedures, and acceptable dispositions for "soldiers of fortune," pirates, brigands, and all the other flavors of international outlaws. They are at present rattling back and forth between PoW status and "suspicion of war crimes" just to keep them off the streets.

And for more news on this:
http://www.chicagotribune.com/news/nationworld/chi-0607030135jul03,1,7229609.story?coll=chi-newsnationworld-hed

"... not of an international character ..." Rwanda, Sri Lanka, Myanmar, Basques, not too many others. IRA? Definitely international. Palestine? Who hasn't got a horse, or several horses, in that race? Iraq? If that ain't international, nothing is --- Afghanistan likewise.

 

[selfAdjoint]

Article I, Section 8, lines 9, 10, 11 --- it IS the province of Congress, NOT of SCOTUS to decide the dispositions of this category of cases. Can Congress be strung up by the numbers by the Hague? Sure.

But the Supreme Court, as interpreter of the Constitution, has the power to constrain what Congress decides. And it has done so in mandating that no decision may violate either the Bill of Rights or the Law of the Land, including treaties in force. Perfectly sound.

 

[Bystander]

But the Supreme Court, as interpreter of the Constitution, has the power to constrain what Congress decides.

From Article III, Section 2, Paragraph 2 (wish they'd stuck to a single format from "Article" to "Article."):

... In all the other cases before mentioned (admiralty, piracy, assorted stuff "reserved" to Congress in Article I), the Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make.

And it has done so in mandating that no decision may violate either the Bill of Rights or the Law of the Land, including treaties in force. Perfectly sound.

"Sound?" No --- noisy, perhaps. The Constitution was designed to keep the three branches at each others' throats, or perhaps in pipe dreams working together, through overlap of "reserved powers" --- this is one of the overlap areas. "Bill of Rights vs. Law of the Land vs. treaties?" This court with its "eminent domain" decision is no champion of the "Bill of Rights." This court's staunch defense of sexual predators is NOT indicative of any interest in "Law of the Land." "Treaties?" SCOTUS is not empowered to negotiate, ratify, sign, or enforce treaties.

It's bench politicking. It's divisive interference in the performances of the legislative and executive branches. One could argue that it is a public service in the sense that it serves to "encourage" Congress to take actions that have been ignored for far too long --- there are far more constructive means accessible to the court for such purposes --- is it going to provoke a "Constitutional crisis?" Kinda doubt it. Gaps in my history --- don't know if Congress has ever "booted" justices before --- we may see "tests" of the "shall hold their offices during good behavior" provision in Article III.