Justices Rebuke Bush's Anti-Terror Policy

[JokeyLoki]

http://www.cnn.com/2006/LAW/06/29/sc...als/index.html

"The military commission at issue is not expressly authorized by any congressional act," said Justice John Paul Stevens, writing for the majority. The tribunals, he said, "must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law."

"Congress has not issued the executive a 'blank check,'" Justice Stephen Breyer wrote in a concurring opinion. "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."

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

Huzzah. It might take them longer to get trials, but at least it'll be done through proper channels.

It's about time someone stopped the man from taking more power.

[JokeyLoki]

Oops, I posted this in the wrong forum... please move to the political science board.

[BlueStar]

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

By William Branigin
Washington Post Staff Writer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[JokeyLoki]

http://forums.netphoria.org/showthread.php?t=122072

[sleeper]

corganist will not be pleased with this one bit

[sleeper]

this is awesome

at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case.

A principal flaw the court found in the commissions was that the president had established them without Congressional authorization.

The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantánamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing" and "remarkable."

Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, "It doesn't get any better."

and

"The ruling destroys one of the key pillars of the Guantánamo system," said Gerald Staberock, a director of the International Commission of Jurists in Geneva. "Guantánamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole."

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

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

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

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

[BlueStar]

Some more reactions...

Liberal Judges Fire another Bullet into US Anti-Terrorist Efforts

Apparently celebrating its first major victory over the US citizenry (SCOTUS’ Kelo decision to do away with the 5th Amendment to the US Constitution and allow private developers to steal American citizens’ property was only a year ago), on Thursday the US Supreme Court ruled that the President of the United States cannot order terrorist enemy combatants to be tried before a military tribunal. The court wrongly cited the rules according to the Geneva Convention. This unfathomable reasoning, using the Geneva Convention as the basis for its decision, does not apply to this situation.

The Geneva Convention applies to its signatories and those who wear the uniform of a recognized country. Neither of these scenarios is applicable to the current crop of terrorists at Guantanamo. But, the liberal contingent of the US Supreme Court used it anyway. This is simply and clearly yet another instance of courts—and now even the US high court—making up decisions as they go along, in order to justify their own ideologies. Although these decisions fly in the face of the US Constitution, these liberal courts have determined that they are far above the laws of the land.

Several pertinent questions come to mind. If foreign terrorists are now to be afforded all of the rights of US citizens, and will have their cases tried in US domestic courts, will US troops now be required to Mirandize them? Will our soldiers have to “read them their rights” on the battlefield, when taking them “into custody”?

http://www.theconservativevoice.com/article/15731.html

Ruling Leaves Uncertainty at Guantánamo

GUANTÁNAMO BAY, Cuba, June 29 — As the Supreme Court prepared to rule on the Bush administration's plan to try terror suspects before special military tribunals here, the commander of Guantánamo's military detention center was asked what impact the court's decision might have on its operations.

If they rule against the government, I don't see how that is going to affect us," the commander, Rear Adm. Harry B. Harris, said Tuesday evening as he sat in a conference room in his headquarters. "From my perspective, I think the direct impact will be negligible."

The Defense Department repeated that view on Thursday, asserting that the court's sweeping ruling against the tribunals did not undermine the government's argument that it can hold foreign suspects indefinitely and without charge, as "enemy combatants" in its declared war on terror.

For the moment, the effect of the court's ruling on the detention and interrogation operations at Guantánamo is likely to be as political as it is practical.

http://www.nytimes.com/2006/06/30/wa...rssnyt&emc=rss

[Nimrod's Son]

Originally Posted by BlueStar

The court wrongly cited the rules according to the Geneva Convention. This unfathomable reasoning, using the Geneva Convention as the basis for its decision, does not apply to this situation.

The Geneva Convention applies to its signatories and those who wear the uniform of a recognized country. Neither of these scenarios is applicable to the current crop of terrorists at Guantanamo.

Say whatever you guys want, but there's no getting around this issue

[DeviousJ]

Originally Posted by sleeper

corganist will not be pleased with this one bit

But don't you see? They didn't have rights, now the law has stated that they do have rights. The law has empowered them, it has given them rights they didn't have before. If it weren't for Guantanamo this precedent wouldn't have been set, overall the last 4 years have been a victory for human rights

I don't get how Supreme Court Justices are allowed to abstain from a vote, especially an important one like this. I mean they're there to weigh in with their opinions on these things, specially appointed to a very limited circle - how the hell can one of them just say 'hey count me out of this guys, I only account for what, 11% of the vote'. What grounds did this guy have to recuse himself here?

[DeviousJ]

Originally Posted by Nimrod's Son

Say whatever you guys want, but there's no getting around this issue

That's not true at all. At least, they're not the ONLY people covered

[sleeper]

Originally Posted by DeviousJ

I don't get how Supreme Court Justices are allowed to abstain from a vote, especially an important one like this. I mean they're there to weigh in with their opinions on these things, specially appointed to a very limited circle - how the hell can one of them just say 'hey count me out of this guys, I only account for what, 11% of the vote'. What grounds did this guy have to recuse himself here?

i think it was some kind of confict of interests thing where he had to recuse himself. i forget the exact details

[BlueStar]

Originally Posted by DeviousJ

I don't get how Supreme Court Justices are allowed to abstain from a vote, especially an important one like this. I mean they're there to weigh in with their opinions on these things, specially appointed to a very limited circle - how the hell can one of them just say 'hey count me out of this guys, I only account for what, 11% of the vote'. What grounds did this guy have to recuse himself here?

*ahem*

Originally Posted by BlueStar

Chief Justice Roberts, one of the judges who voted against Hamdan's appeal when he served on the appeals court, recused himself from the case.

[Corganist]

Originally Posted by sleeper

corganist will not be pleased with this one bit

Meh. The actual practical result of the decision I can take or leave, because Congress can and probably will fix most of the things the Court fucked up. What does bother me is the blatant violation of seperation of powers that the Court performed here, especially the way they outright ignored Congress's clear stripping of their jurisdiction to even hear the case at all.

Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

'(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba

It just doesn't get any plainer than that. The fact that the Court could even pretend that there was a way around that language is preposterous and insulting.

[Nimrod's Son]

Article II:
"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

I am fairly sure beheading civillians isn't a prt of the convention, so this would then not apply.

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Doesn't apply

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

Doesn't apply

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Doesn't apply

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

Doesn't apply

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

Doesn't apply

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Doesn't apply

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

Doesn't apply

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

Doesn't apply

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Doesn't apply

[Corganist]

Originally Posted by DeviousJ

But don't you see? They didn't have rights, now the law has stated that they do have rights. The law has empowered them, it has given them rights they didn't have before. If it weren't for Guantanamo this precedent wouldn't have been set, overall the last 4 years have been a victory for human rights

Your sarcasm doesn't negate the fact that this paragraph is pretty much true.

[DeviousJ]

Originally Posted by Corganist

Your sarcasm doesn't negate the fact that this paragraph is pretty much true.

Oh my fucking god

[DeviousJ]

Originally Posted by BlueStar

*ahem*

Hmm, I guess that makes sense. Is this guy new?

[Corganist]

Originally Posted by DeviousJ

Hmm, I guess that makes sense. Is this guy new?

Yeah. Roberts replaced Justice Rehnquist, who died last year.

[DeviousJ]

Originally Posted by Nimrod's Son

I am fairly sure beheading civillians isn't a prt of the convention, so this would then not apply.

Doesn't applyDoesn't applyDoesn't applyDoesn't applyDoesn't applyDoesn't applyDoesn't applyDoesn't applyDoesn't apply

So wait, you're saying that NONE of those prisoners are members of the Taliban forces or Taliban-allied militias, or even civilians who've taken up arms to defend their country?

[BlueStar]

Originally Posted by DeviousJ

Hmm, I guess that makes sense. Is this guy new?

Where were you last summer? His nomination was pretty big news and there was a big fight against it.

[sleeper]

Originally Posted by DeviousJ

Oh my fucking god

somebody tell me if i should be laughing or crying

[sleeper]

Originally Posted by Corganist

It just doesn't get any plainer than that. The fact that the Court could even pretend that there was a way around that language is preposterous and insulting.

honestly, i feel naked getting into any debate on all these legal issues because im no lawyer or whatever and you, while, pfft, hardly what i would call a lawyer, know enough to just easily throw sand in my eyes and get away. nevertheless, from what i read, the question was not whether or not that change in jurisdiction is valid in itself, but whether or not that withdrawal of jurisdiction applied to pending cases. they ruled that it didnt. simple as that, i think


and the real worrisome issue here is the executives manic power grabbing, not the judiciary's. you guys are barely even a fucking democracy anymore, its pathetic. things are so broken. if you knew what was good for you youd move to canada and settle down nice.

we dont want you though, so dont.

[Corganist]

Originally Posted by sleeper

somebody tell me if i should be laughing or crying

I share your sentiment. It amazes me how people can pretend like the law has no significance.

[sleeper]

Originally Posted by Corganist

I share your sentiment. It amazes me how people can pretend like the law has no significance.

yeah, i know, cheney makes me sick to my stomach

[sleeper]

Originally Posted by Corganist

It amazes me how people can pretend like the law has no significance.

be warned: im going to throw this quote back in your face every chance i get. youll regret the day you expressed respect for law

[sleeper]

Originally Posted by Corganist

I share your sentiment. It amazes me how people can pretend like the law has no significance.

this is where plausibly deniability, hugely broad interpretations of laws, and unprecedented secrecy comes in though -- thank god.

[Corganist]

Originally Posted by sleeper

honestly, i feel naked getting into any debate on all these legal issues because im no lawyer or whatever and you, while, pfft, hardly what i would call a lawyer, know enough to just easily throw sand in my eyes and get away. nevertheless, from what i read, the question was not whether or not that change in jurisdiction is valid in itself, but whether or not that withdrawal of jurisdiction applied to pending cases. they ruled that it didnt. simple as that, i think

Well, that was their reasoning anyway. The problem is that the part of the act talking about pending cases didn't apply to habeas corpus proceedings. It applied to the hearings that determine the prisoners' status (whether or not they are a 'unlawful combatant') and appeals of final decisions of the military commission trials. Hamdan's case didn't fall under either of those categories. There was no provision keeping pending habeas corpus proceedings alive, so the Court just made one up.

and the real worrisome issue here is the executives manic power grabbing, not the judiciary's.

The executive hasn't grabbed any power that Congress hasn't allowed it to have. Whether or not the legislative branch has been a little too lax in reining in the executive branch is open for debate, but its no issue for the courts.

if you knew what was good for you youd move to canada and settle down nice.

we dont want you though, so dont.

I believe I'll take that advice.

[Nimrod's Son]

Originally Posted by DeviousJ

So wait, you're saying that NONE of those prisoners are members of the Taliban forces or Taliban-allied militias, or even civilians who've taken up arms to defend their country?

Read the parameters above and tell me where they'd fit in.

[DeviousJ]

Originally Posted by Nimrod's Son

Read the parameters above and tell me where they'd fit in.

Well answer that question first and then I will