The Bush administration’s plan to try Guantanamo Bay detainees before military commissions violates both military law and the Geneva Conventions, the Supreme Court ruled today. The finding could have a lasting and far-reaching impact, The Washington Post reported, because it dealt with:
* “The power of Congress and the executive to strip the federal courts and the Supreme Court of jurisdiction.
* “The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one’s accusers and the right to judicial appeal.
*‚”The applicability of international treaties — specifically the Geneva Conventions on the treatment of prisoners of war — to the government’s treatment of those it deems ‘enemy combatants.’”
Posted by Phillip Brownlee
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26 Comments
This shoots down the administration’s argument–
How do we know they deserve to be in Gitmo prison? Because they’re terrorists.
How do we know they’re terrorists? Because they’re in Gitmo prison, the prison for terrorists.
See! It’s so simple if you just turn your brain off.
It was obvious from Day 1 that this was illegal, mean-sprited revenge that violated every American standard of decency. We think of ourselves as the good guys, then the *&%&(*( Bushies pulled that stunt. Even if it is creeping toward the right, the SCOTUS called it correctly on this one. Finally.
So what did Breyers mean when he wrote outside the majority that President Bush could pursue a solution with Congress?
I mean, what’s the solution? Any lawyers out there? GMC?
Surely Breyer doesn’t mean to suggest that Bush’s solution would be for Congress to pass a law repudiating our status as signatory to the Geneva conventions – or does he?
I heard Bush on NPR when he first commented on the ruling — he said something that led me to believe that he thought there was a way around the ruling. Not sure if he was commenting on what Breyer said or not.
Ha! Beat ya to it, Phillip. *grin*
So now what’s W to do? Wanna bet that whatever it is takes a loooooong time? The White House is checking into the legal aspect of this. I can’t believe they didn’t have this researched to the max, but maybe they didn’t expect this kind of ruling? hmmmmm
I predict an announcement about the “release” of some of the Gitmo inmates during the runup to the 08 elections. Any sooner than that, and a “we’re looking into it” answer should suffice. Right?
teehee
From a comment to the the WSJ’s Lawblog:
Wow, this case looks like one of those that is devastating to the executive power. That is, until you read it. This is not a constitutional case in any way whatsoever. Katyal lost on every part of the constitutional issues because the court refused to hear it and Kennedy seemed disinclined to accept it.
Here are the holdings after my reading:
1) This is probably going to be a one-time case because Congress has stripped federal court review of anyone in Guatanamo, other than those who are currently pending tribunal (all four of them, including Hamdan).
2) Reaffirms that Congress can allow President to convene military tribunals and indeed has allowed him to through various enactments. This, however, was not expanded by the AUMF after September 11.
3) The President controls, at nearly unlimited discretion, the rules of a court-martial. However, the rules of a tribunal must nearly match the rules of a court-martial unless he can prove impracticability.
4) Conspiracy is not a war crime.
5) Geneva Convention gives some protection to those who are capture in a conflict that is not between nations. However, this is not nearly the level of protection afforded between signatories of the convention agreement.
6) Court simply said that a few small procedures need to be changed in the tribunal. However, Court specifically said that they did not rule on whether or not Hamdan could be excluded from parts of his own trial.
7) The best part of Kennedy’s concurrence, to which three of the majority joined and, if forced to, I am sure the dissenters would join: “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.” Congress merely has to say that no longer do tribunals have to be consistent with the laws of war, and that’s that.
A major loss to the President? Not even close. I bet he is secretly enjoying it, because this in no way limited his actual Executive Power to try individuals in the war on terror.Comment by Tim – June 29, 2006 at 11:59 am
http://blogs.wsj.com/law/2006/06/29/law-blog-lawyer-of-the-day-neal-katyal/#comment-5193
Latest.
I’m providing cheeseburgers/fixins. Brats. Momma made cookies, don’t know what kind (she hid them). She also made pasta salad.
I’ve got about a case of Cokes, half a case of Sprite, momma made some tea and we have a few cans of lemonade. I’ve also got about a case of various light beers (confiscated from the college kids).
gster is bringing hamburger buns (with seeds)
XXX is bringing Hot Dog buns
Damoon is bringing watermelon or something.
Julie is bringing brownies/cookies.
RD is bringing a side dish.
Looks like we’ll have plenty to eat and drink!
Looking forward to seeing you all again. cell 641-6347
Hank
PS. It’s still an open invitation, if you are reading this you’re invited!
Bush’s Gitmo is getting dangerously close to something FDR would do.
Unfortunately, GW Bush doesn’t hold a candle to FDR.
If Bush had even a tenth of FDR’s candlepower (brains + charm + open mind + communications skills) the US would be united not divided today.
Make that bitterly divided.
Precisely because Republicans are the only party that the public trusts with national security, the Democrats are the only party that declare and then *effectively* lead the nation in war.
There’s a reason for that. When will you guys learn it?
*sigh*
Should be: the Democrats are the only party that can declare and then *effectively* lead the nation in war.
“Should be: the Democrats are the only party that can declare and then *effectively* lead the nation in war.”
….especially Viet Nam.
If they weren’t terrorist when they went in, you can bet they are now!
Yeah, Patriot, but I didn’t write that Democrats *always* lead wars effectively. I wrote that *only* Democrats can lead wars effectively.
If you want to negate my point, then one way to do so would be to provide a counterexample, e.g., an example of a Republican who’s effectively led a war.
I don’t think you’ll find one since Lincoln.
Why? Because Americans demand a leader who’s smart, charming, has great communication skills, and – perhaps most importantly – has an mind open to *all* solutions to any problems war may present.
There may be such a Republican today, but your problem is that those in charge of the GOP are too busy calling them RINO’s and Democrats rather than employing them as leaders.
$0.02
“I wrote that *only* Democrats can lead wars effectively.”
flike: It only takes one exception to defeat a generalization. You defeated your own by mentioning Lincoln.
Mark Twain had it right when he said, “All generalizations are dangerous, especially this one”.
Sure and yours would be a great point, outlander, if Bush were anywhere near the leader Lincoln was.
He isn’t, unfortunately. He has ideas, sure, but lead Americans?
Not seeing that, frankly.
I’ve got some extra bedsheets if the poor dears down there need some.
The only ‘rights’ these vermin should have should be the right to dangle at the end of a rope, or the right to have a bullet between the eyes.
Congress will pass a law allowing the President to conduct tribunals.
Next?
Joe?Before the ‘06 elections? Most likely not… Repubs will run from this issue as fast as they can. Even you, must know that will be true.
Congress will pass a law allowing the President to conduct tribunals.
Next?
Joe not if there is a God in heaven and a honest government left to this country.
Done!
Here is a provocative op-ed piece in today’s LA Times about the Supreme Court’s holding that Article 3 of the Geneva Convention IS governing law in the detention of “enemy combatants”, despite the Administration’s insistence that it ISN’T (or wasn’t before yesterday’s ruling).
http://www.latimes.com/news/opinion/commentary/la-oe-brooks30jun30,0,339573.column?coll=la-news-comment-opinions
I have to aggree with Joe. As the liberals gather in little circles and celebrate this victory for the terrorist’s bill of rights surely, it must soon occur to them that in an election year, they will soon have to decide if they want to defend the terrorists or the American people.
Hank
As a liberal, I lump Bush in with the rest of the terrorists.
This whole admnistration has used “terrorism” to terrorize the people of the United States. Everything is done in the name of “protecting you from terrorists,” which is nothing more than a way to screw people who have their heads where the sun doesn’t shine.
RD
Do I agree with that?
Ed,
Can you see the sun shining? If so, you agree. *wink*
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Does this mean that, as people, the haves are more important than the have-nots? That they have more right to happiness, life, and liberty (especially liberty)…because they have?
When you get right down to it, the Declaration was even more for the have-nots, the little people, than it was for the haves, the wealthy landowners. The poor were imprisoned in England. It was a world of what you had and who you knew. I’m seeing glaringly similar things going on here now–exactly what the Founding Fathers fought against.
Being afforded a fair trial is one of the landmarks of this (once) great country we live in. Other nations around the world have looked up to us, because we are supposed to have a judicial system that assumes people innocent until proven guilty. Excuse me, but the latter part of that sentence should really be stated in the past tense, especially when applied to all those “terrorists” in Gitmo.
Good grief! Even the Nuremburg Trials gave the accused the chance to speak and be heard. Yet our administration has decided they can change that at their whim.
A fair trial should be the right of any human being. If they (these terrorists) are found guilty in a court of law, fine. They should receive a penalty equal to their “crime.” If not, then, Houston, we have a problem.
The BushdaBum Righties assume that anyone caught up in a sweep is automatically a terrorist. It has already been shown that many people are simply in the wrong place (like their homes) at thye wrong time (like when we invade)