Like most with an interest in the issue, I am just beginning to skim the Supreme Court’s opinions on the habeas corpus rights of unlawful combatants detained in Guantanamo Bay (the case getting the buzz) and US citizens detained in Iraq (which is not getting much buzz at all).
Michelle Malkin has already provided a good round up of early reactions, but folks including Ed Morrissey may be overstating things by suggesting that the “Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents.” The ruling does not directly address situations outside Gitmo, but the ruling seems to turn on the prior opinions of the Justices in Rasul v. Bush, 542 U.S. 466 (2004), that Gitmo is within “the territorial jurisdiction†of the United States — as explained briefly by Orin Kerr. Even more briefly, it has to do with the exact extent and nature of the jurisdiction or dominion exercised by the US over a territory.
Similar reasoning seems to be at work in the other habeas case decided today, involving US citizens detained in Iraq.  The Court decided unanimously that US citizens held by the US military in Iraq have a right to file habeas cases, but federal courts do not have the authority to bar their transfer to Iraqi authorites for prosecution under Iraqi laws. The first half of that rests on the plain language of the habeas statute, which applies to persons held “in custody under or by color of the authority of the United States.â€Â (The Gitmo case involved the Detainee Treatment Act.) It also appears to rely in part on the fact that the petitioners are US citizens. The second half relies on the sovereign authority of the Iraqi government within its territory.
The Acrobat downloads of the opinions in Boumediene v. Bush (the Gitmo case) and Munaf v. Geren (the Iraq case) are linked for those who want to study at home.
Update: AoSHQ’s Gabriel Malor has useful additional thoughts regarding what happens next.
Basically, the net result is that the US military is not permitted to take prisoners; they can only arrest detainees.
The simplest solution to that is to simply shoot them out of hand. It’ll make our guys a bit more fearsome, but I don’t think that’s what Justice Kennedy had it mind, and it’ll take a while for the mindset to percolate.
Regards,
Ric
Ric, the problem with just shooting them is that people like John Murtha would be bringing our soldiers up for murder if there is even a hint that the combatants were somehow not engaged in agression, i.e., caught on video firing an AK47 directly at US troops. If the enemy is firing weapons from a mosque, they’ll be considered clerics calling worshipers to prayer. This is just insanity! It’s bad enough we have to fight the congressional dhimms, the UN, Iran, and now SCOTUS, in order to win the war in Iraq.
Actually, the cases seem to leave open the possibility that the US can detain non-US citizens somewhere other than Gitmo (e.g., Afghanistan), depending on how much control the US has over the territory.
Karl, doesn’t the ruling set a precedent that any non-US citizen anywhere can request a hearing contesting their detention, and status, in US courts.
No, what the SCOTUS decided was that it was going to reject the farce that Gitmo is not US territory for purposes of the writ. Scalia, who seems to be quite big on going outside the record on this one, neglects to mention that Gitmo was chosen over the US precisely because Bush et al believed habeas wouldn’t apply there. They were wrong. The idea that Gitmo is Cuban is absurd. Would you let them take it back without nuking place? Doubt it, which is exactly my point.
Cry a river. The Court merely upheld the law in the face of extreme lawlessness enabled in large part by Congress. At the end of the day, Congress and the Executive can enact any law they want – the Court gets to be the final say on whether that law is constitutional. The MCA ain’t, least not as it relates to habeas.
Accept and get over it.
Roboc,
My preliminary skim suggests perhaps not, which was really the reason for the post. Much of the Gitmo case turns around the unique degree of control the US has over Guantanamo Bay under its unique “lease.” In the Iraq case, CJ Roberts specifically notes that habeas is equitable relief that turns in part on whether the petitioner is a US citizen. Thus, the Court leaves open the issue of a non-citizen held someplace where the US has less dominion and control over the territory.
po,
The notion that Gitmo was different was so absurd that the case was a 5-4 decision. Justice Jackson once remarked that if there was a court above the Supreme Court, it would be reversed with some frequency — because they take many non-absurd cases.
It’s a lease. They’re landlords. The relationship with the current regime isn’t very good, but to claim it’s ours and not, ultimately, theirs — that would be lawless.
Justice Kennedy and his good-time buddies on SCOTUS don’t seem to understand that, in their rush to offer habeas corpus to unlawful combatants, they may have inadvertently laid the groundwork for Wehrmacht-style “Vernichtungskriege” (wars of annihilation). ACLU’ers think decisions like these will hamstring future military operations, but, I suspect, they might have precisely the opposite effect: military commanders will avoid getting bogged down in legalities by intensifying the pace of offensive operations in order to quickly crush and scatter the enemy…and present legal second-guessers with a fait accompli.
“Gee whillikers, counselor, I’m REALLY sorry about wiping out all those guys before I read them their Miranda rights. It was all a terrible accident you see–they just got in the way of our tanks. However, now that we’ve won the war, what do you suggest we do? Give all that territory back to the enemy? Yeah, riiiiiiight.”
Ultimately, this decision will result in one of two outcomes.
1) The military will advocate that these unlawful combatants be given the full extent of their rights under the Geneva convention (written by nations with organized armed forces, the Geneva convention doesn’t have much in the way of a sense of humor for free-lancing irregulars, at least on paper); or,
2) The military will establish prison overseas. If pushed, they will simply put the prisoners in the hands of local allies.
Actually, the most simple solution would be to have a Turkish (apply any allied country with interesting penal procedures here) observer assigned to each US Division. Said “observer” would then take custody of any “detainee” and transfer to their own pokey for hijinks and shennanigans. We’re already doing this…you know.
Personally, I think this decision brings down a world of hurt on future detainees…instead of the three square, snappy orange jumpsuit, tropical climate vacation that these clowns are experiencing in Gitmo.
The fights over these court cases aren’t about the status of the prisoners so much as the fight over whether or not what happened to them will be heard in a US Courthouse or some military tribunal where the records can be kept secret. And the reason this decision is so political is that it has a tremendous chance of making the Bush Administration look like a bunch of legbreaking sadists with goonery as its standard way of getting things done. It’s all about image.
Yes, 5 to 4 along party lines, just like most things in Congress these days. Like I said, if the Cubans wanted to take Gitmo back tomorrow, the US wouldn’t let them because Gitmo is ours. De Facto v. De Jure. Either way, habeas applies if it ain’t too hard to make it apply. Thus says the SCOTUS and that pronouncement still leaves plenty of wiggle room for places like Afghanistan, Iraq and wherever else “they who must kill to get what they want” decide to unleash our military.
Wouldn’t the transfer of detainees be construed as some form of “rendition”. It just seems that some clever lawyer could just tear apart anything our military does in regard to detaining an enemy combatant.
The fight is precisely about the status of the prisoners. W et al says that if they say someone is an enemy combatant they are and are subject to indefinite detention and review by whatever they are calling the kangaroo court at Gitmo these days. These people who would dare protest are saying, wait one minute, we aren’t even enemy combatants, you’ve got the wrong guy. You folks who think this decision is soooooo bad just can’t fathom the thought that W might be wrong about some (most) of those the US is holding at Gitmo. That is the crux of this problem and the debate over habeas. In W eyes, the decision has been made. To the rest of us, we’re a bit more skeptical given W’s track record.
jon,
In your world, I’m sure that is exactly what it’s about. To others it’s about not giving unlawful combatants the legal protectiions due POWs under the Geneva Conventions, because to do so ultimately subverts the Geneva Conventions, resulting the sorts of outcomes MarkJ, Dread Cthulhu and JR are floating.
It must be easier to live in your world, where the real enemy will be leaving office next year. It’s a convenient fiction that allows you to hide from the nastiness of the rest of the world.
Why are you people afraid of the law?
Extending [human] rights to prisoners at Gitmo is dangerous how? We have the highest rate of incarceration in the Western World, clearly we don’t have have problems tossing guilty people in jail.
So po, I guess you’re saying that if caught fighting our troops without some identifying uniform, they can drop their weapons and say “It wuddn’t me”, we’ll need to have video tape of them with the gun, grenade launcher, etc. in order to detain them. Would an affidavit from the capturing troops be good enough, or would our troops have to be deposed in court?
Heck Ron, even with the protections afforded US citizens arrested int he good ol’ USofA prosecutors have no trouble convicting innocent people and having them sentenced to death for crimes they didn’t commit. I’m with you, what then can those who find habeas soooo wrong be complaining about?
Karl: “In your world, I’m sure that is exactly what it’s about. To tohers it’s about not giving unlawful combatants the legal protectiuions due POWs under the Geneva Conventions, because to do so ultimately subverts the Geneva Conventions, resulting the sorts of outcomes MarkJ, Dread Cthulhu and JR are floating.”
No subversion necessary, Karl. Like I said, the Geneva Convention takes a dim view of certain varieties of combatant, including mercenaries and irregulars. The convention lays out criteria to be considered lawful combatants and the likes of Al Qaeda do not qualify. This does not mean they do not qualify for humane treatment, just that they are not entitled to the same rights as a true prisoner of war.
However, if the process does become too onerous, there is nothing to prevent the military from deciding they are out of the holding prisoner business and repatriate the prisoners to their countries of origin, save where another country has a prior legal claim.
Somehow I have the feeling that if the folks at Gitmo were getting their legs broken, we would have heard about by now. That place is the most the talked about, photographed, visited, well staffed prison in the world. Now if these guys were hauled off to some Pakistani prison where they really were tortured, no one would care.
“. To others it’s about not giving unlawful combatants the legal protectiions due POWs under the Geneva Conventions, because to do so ultimately subverts the Geneva Conventions, resulting the sorts of outcomes MarkJ, Dread Cthulhu and JR are floating.”
I read the syllabus, and it looks like this isn’t about pow legal protections. The case seems to be just about whether they can go to a court. It doesn’t say what legal protections they’ll get from that court.
I wonder if this is likely to lead to more usage of the Clinton administration favored tool of rendition. I don’t think anyone wins in that case, but I can’t see where the court is leaving much in the way of an alternative.
Ron (and Dread and andrea, really):
The GC — as I have suggested — gives much greater protections to uniformed regular forces to discourage asymmetric warfare and protect civilians. Giving unlawful combatants those protections thus undermines the tradition GC protections in the long run, and encourages a “take no prisoners” attitude w/regard to civilian populations.
Of course, we are here dealing with the trigger question of whether someone is an unlawful combatant. Congress set up a system — including federal court review — to allow detainees to challenge any such determination. The Supremes have ruled it’s not good enough, but as Roberts (iirc) points out, doesn’t give a clue as to what the habeas rights of aliens captured abroad actually are, thus ensuring that their proceedings drag out for years to come. The greater rights they end up with, the greater risk of eroding the distinctions set up in the GC.
It’s a decision that makes people like jon feel warm and fuzzy because “Bush lost,” but there are larger issues, like what the decision will do over time to the GC and what it actually does to the Gitmo detainees.
Fuck off, Ron Burgundy.
JD,
I think the correct salutation is “Go fuck yourself.” At least, that’s what’s on the TelePrompTer.
The simple fact, and it is a fact, is that the likes of Po and Ron Jeremy hate President Bush, and do not trust the military, so they will see this as a victory against their enemy, as Karl stated well above. They care not one iota what the practical and real world applications are. The onerous burden that will be carried by the military will be a feature, not a bug, to their ilk.
Oustanding, Karl.
If I’m a detainee:
1)faced with repatriation to my country of origin, I ask for “political asylum”.
2)faced with legal claims from a country not of my origin, I scream “rendition”.
3)faced with evidence that I fought against US troops, I say my capture was done with “excessive force”.
Oh, I forgot, if all else fails, I claim the war was “illegal”.
Why would we subject our soldiers and military to such idiocy? Seems natural that the end result is that the taking of prisoners will be curtailed, and these people will be meeting the business end of the American military, rather than becoming prisoners.
Karl: “The GC  as I have suggested  gives much greater protections to uniformed regular forces to discourage asymmetric warfare and protect civilians. Giving unlawful combatants those protections thus undermines the tradition GC protections in the long run, and encourages a “take no prisoners†attitude w/regard to civilian populations.”
Agreed — in the long run, this decision, unless a sudden burst of sanity prevails somewhere in the process, we are back to the tactics of Sherman and von Clauswitz.
Karl: “Of course, we are here dealing with the trigger question of whether someone is an unlawful combatant. ”
Comme ci, comme ca — while the convention does not define what an “illegal combatant” is, is does define what constitutes a “legal combatant.” Now, you may quibble in some marginal cases, such as the Taliban, most of the irregulars, under the GC’s definitions, do not qualify as lawful combatants and as such, should be deemed as unlawful combatants, with any marginal or questionable cases being granted POW status until such time as their final status can be determined, as per the GC.
Karl: “It’s a decision that makes people like jon feel warm and fuzzy because “Bush lost,†but there are larger issues, like what the decision will do over time to the GC and what it actually does to the Gitmo detainees.”
Short-sightedness is not exactly an uncommon failing in certain political sets.
However, the simplest solution to this Gordian knot would simply be to allow non-American formations to handle the prisoners. Repatriation and Rendition becomes the words of the day.
I guess it really is a suicide pact after all. That would make the usurper wing of the USSC a little band of Dr. Kevorkians, no?
Yup, I’m not a big fan of the Unitary Executive. being a lawyer, I find the rule of law, not to mention the Bill of Rights, to be something to preserve and protect. My dad did 25+ years in the military. Neither trust nor distrust it. Think the fact that the US military is subservient to civilian authorities is great. Also realize that the civilians who control the military are politicians and politicians do things for all sorts of reasons.
No this decision is not a victory over the enemy. It is a victory for the Constitution and what it stands for (or at least stood for for many, m any decades).
Gitmo is a guilty until proven innocent (and we’ll get around to letting you prove your innocence when hell freezes over) kind of world. It’s un-American and, what’s more, totally unnecessary. The Irish, during the Troubles, handled things pretty well. Why do we have to flush our entire system and our very being down the toilet just because 19 Sauds with boxcutters got lucky while no one was paying much attention?
JD: “Why would we subject our soldiers and military to such idiocy? Seems natural that the end result is that the taking of prisoners will be curtailed, and these people will be meeting the business end of the American military, rather than becoming prisoners.”
Because the lunatics want the run of the asylum and what they cannot get through elections and the legislative process, they seek to acquire incrementally through the judicial process. If they can’t do a better job of leading, they seek to bury the process in bureaucratic red tape.
Dread,
When I wrote, “Of course, we are here dealing with the trigger question of whether someone is an unlawful combatant,†I only meant in a particular case — I agree that the GC is pretty clear about who is lawful/unlawful in general.
No this decision is not a victory over the enemy. It is a victory for the Constitution and what it stands for (or at least stood for for many, m any decades).
Other than the Exception Clause, which the Court trampled (to the empowerment of the judicial branch). The USSC just declared itself superior to the Constitution, really.
I’m enjoying the irony of po talking about Gitmo being a “guilty until proven innocent” sort of place at the same time that he adopts the assumption that most of the people at Gitmo have been wrongfully detained, because of well, Smirky McChimpler. Not to mention his imposition of the ordinary criminal law paradigm on a battlefield, though that’s to be expected.
Oh, a wonderful decision, as full of Good Things as a Nutt is of Meat.
Number one: The Geneva Conventions are a dead letter. We revert to the system used before those treaties, in which captured combatants are treated according to the national law of the force doing the capturing. This is, and has been, the position of the people we’re fighting all along; as is usual nowadays, the decision simply confirms the judgement(s) of the Islamists.
The military will adapt. “You folks who think this decision is soooooo bad just can’t fathom the thought that W might be wrong about some (most) of those the US is holding at Gitmo” declareth po. What he and his allies never comprehended is that “Gitmo” exists because “W” (or, more properly, the military forces in the field) might be wrong. Those guys were captured as part of the swirl of battle; the traditional way of dealing with them has always been to shoot them out of hand. The whole reason for detaining them was to take time to determine whether or not that was really appropriate. Since it is no longer permissible to do that, we can simply revert to the older protocol — which Justice Kennedy has explicitly endorsed, by suggesting that they might be turned over to local “law”.
Second, American global hegemony is now not merely confirmed but Constitutionally required. American citizens who join the enemy and commit acts of war against US interests and/or allies enjoy the full protections of any other citizen. If parallels with the Roman Empire do not occur to you, you have no imagination.
And third, Guantanamó is now U.S. territory, lease be damned. Most interesting, if as nothing more than confirmation of “progressive” imperialism.
More will occur in future, no doubt.
Regards,
Ric
OK, let’s hear it! George Bush lied about the war, and is therefore, a war criminal! It must be the inevitable conclusion, right!
Gitmo is a guilty until proven innocent (and we’ll get around to letting you prove your innocence when hell freezes over) kind of world.
When did we start applying American criminal law standards to warfare?
Po also ignores that this isn’t a defeat for the Chimpy Katrinaburton regime, but for Congress. It was precisely the system the Court said had to be set up for them to bless it that they struck down. The Executive was proceeding down the path the Court laid out and which Congress had enacted.
There’s celebration in Osamaville tonight.
What kind of law do you practice, po?
Let me guess, Personal Injury?
Getting warmer, I’d guess, Roboc. Just a hunch his ATLA dues are paid up. ACLU as well.
Gitmo is a guilty until proven innocent (and we’ll get around to letting you prove your innocence when hell freezes over) kind of world.
The guy was guilty enough for me to shoot him, but I only winged him so we patched him up and put him in Gitmo where he’ll now be presumed innocent in a trial to see if he was actually shooting at when I shot him ‘cuz he was shooting at me?
What. The. Fuck?
Are they going to have to pull troops out of the field or put them back on Active Duty to testify at these trials?
What a bonanza…tens of thousands of plaintiffs flooding the bar at once, all of them with either petrodollars or the bottomless pocket of the federales paying the tab. BMW dealers everywhere in America smile.
“BMW dealers everywhere in America smile.”
Yup. There’s some corks a-poppin’ and some high-fivin’ today in the numerous Trial Bar law offices.
it’s not my assumption that most people at gitmo do not need to be there, its the decision made by those that brought them there. We’ve released the majority of folks that were once held there and would release many, many more if only their nations would take them back. Stay abreast of the developments down there is difficult, I know. But, it’s true. Too bad those countries won’t take their people back because of what we’ve done to them and the security risk they now pose. Who’d have thunk it, beat people down for years and eventually they come to resent it.
And po doesn’t ignore that it’s a defeat for Congress. That’s part of the good. Congress, especially the GOP controlled Congress that enable the UE for 6 years, knew what it was doing was wrong, but did it anyway. Just because Congress and the President agree doesn’t make the law a good one.
Why do you all hate the law so much? Why? I know it’s inconvenient to read and to follow, but it’s what’s kept you and yours in power for a long time. What, you just don’t like it when you have to follow it?
What, you just don’t like it when you have to follow it?
According to the Law of Land Warfare, they could have been shot on the spot as armed rabble as they are not in any military they have no standing under the GC.
We were nice and rounded them up instead of legal summary execution.
My Geneva Convention ID card says “Category II” on it. What did theirs say, Po?
If I’m a POW, then I’m not a criminal and cannot be put on trial–I am a legal combatant.
If they are entitled to a trial, then they cannot have POW status as that is precluded to POWs. If they cannot be taken as Prisoners of War, they they are armed criminals and have no standing under the Geneva Conventions….
Now what?
Po: “Why do you all hate the law so much? Why?”
It is not the law, Po — the law may be an ass, but you do not hate a thing for being itself…
The problem isn’t the law, it’s the lawyers.
No one hates the law po, it’s just that war is a difficult enough for the soldier on the ground to determine who the enemy is when they(enemy) hide among the population, and now they’ll have to try and collect evidence in order to prosecute the combatants. Please, most people here are reasonable(maybe a little sarcastic), but I for one am tired of seeing our troops put at risk to protect the rights of someone who’d behead them if the shoe were on the other foot.
po No. 1:
po No.2:
I missed Hell freezing over.
OH, really?
Moreover,the suggestion that most of the detainees are innocent is highly questionable.
But we thank po for revealing that he believes that the US has turned them into terrorists. Nice window into po’s noggin.
Andrea, I asked that question in post #18. Would an affidavit from the capturing troops be sufficient? I received no answer. I guess it wasn’t relevant to this discussion.
Breathtaking.
Dammit, Andrea, that’s exactly the point. The soldiers did say how the guy was captured: while under arms, out of uniform, in association with battle. If po and the rest were willing to accept that, and accept the content of the Geneva Conventions as written and ratified, there would be no question whatever. Their detention in Guantanamó (or elsewhere) would be almost unquestionably legal, and the question, where it existed, would be whether or not we were too kind to them in contravention of the reciprocity required by the GC.
po, while sliming all ’round the point, is saying that those soldiers are liars — that the prisoners are all innocent victims of American aggression called for by
SauronGeorge W. Bush. If he and his allies weren’t calling the soldiers liars there would be no issue.Regards,
Ric
po:
Believe it or not, you are not the only guy who believes in the Constitution. But I think this has more to do with politics than the law. And ofcourse there is the notoriety and the money that blood sucking attorneys can make shilling for the enemy.
Ric, you forgot that Georg Bush lied in order to get authorization for the war. Therefore, the war is illegal, ipso facto, the US troops were operating under the false premise that the innocent goatherders shooting at them were actually, enemy combatants. Heretoforthwith, any eyewitness testimony is irrelevant.
I don’t have time to look it up, but didn’t I read somewhere that the Geneva Convention prohibits exposing PoWs to civil courts?
“Too bad those countries won’t take their people back because of what we’ve done to them and the security risk they now pose.”
Extra tasty comment that.
Po – As noted in a comment above, many detainee do not want to go back home because they will be prosecuted. Apart from those, the one who will not be taken back by their home countries because of the things we have done to them – is it the higher standard of living the detainees have become accustomed to at GITMO to is embarrassing to their home countries? It can’t be torture, because no credible stories of torture have come out of GITMO.
What exactly are you talking about here? Can you give us a concrete example or two?
Do you think we should begin printing up Miranda Warning cards for all our soldiers to have on hand to read to future prisoners as a precaution?
Do you think habeas corpus applies to prisoners of war taken by American forces anywhere in the world or just the ones held at GITMO?
Would you let them take it back without nuking place? Doubt it…
Exactly, we’d never get our security-deposit back.
You know, I think Glenn Greenwald just came in his own ass over this ruling.
[…] Protein Wisdom – A brief note on the Supreme Court habeas corpus cases [Karl] […]
Some very bad people will walk free along with the innocent because Bush administration tried to fool around domestic and international law, creating new designation of “unlawful combatant” so that they could either hide detainees from due process indefinitely or, failing that, conduct kangaroo courts.
If they’d just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW’s already. If found guilty, the death penalty would have been warranted in some cases. I would personally have had no problem with that. That it hasn’t happened is a failure of the Bush administration, no-one else. They have proven themselves incompetent to shepherd America’s national security.
sashal, how can you execute goatherders defending their flock in an illegal war?
President Obama will give them gym uniforms and musical instruments.
The Gymnastic Minstrels, I like the way that sounds!
sashal,
The term unlawful combatant has been around for about 100 years.
MayBee – Since Future President-Elect Obama has already stopped the oceans from rising, the shepherds can put their minds ay ease that their flocks are no longer endangered cataclysmic flooding from Chimpy McKatrinaburton’s failure to sign the Kyoto Treaty.
This ruling allows the detainees to question their detention, argue that the evidence against them is bogus, and ask what that evidence is. If they were caught with guns in hand, then I don’t think the government should have a hard time justifying their detainment. If they were named by people who were tortured, then the government has a tougher time making its case. Why is that so deplorable?
Oh yeah, some certain people will look very bad. And it won’t just be a bunch of hairy foreigners.
If they were caught with guns in hand, then I don’t think the government should have a hard time justifying their detainment.
If you don’t have a picture with the gun in their hands, how do you prove it? Once again, will an affidavit from the capturing troops be sufficient, or will the soldier who witnessed the enemy combatant need to be deposed?
Operatio OIF has been the most over-lawyered war ever fought. Topping only Desert Storm. Topping only Kosovo. Topping only…well, you see where I’m going with this, right?
Thank Gaia we have po(s) and many more po(s) in-waiting around.
I really can’t wrap my mind around the notion that the better we treat our POWs with newly minted supra-constitutional rights, it would somehow lead to some reciprocity somewhere from our openly-admitted enemies. But then, I’m not a pure and perfect progressive. I mean, after 30 years of “Death to America,” it would be untoward to take them at their word, right?
Dammit, Sashal, YOU CANNOT “TRY” POWS! THIS IS FUNDAMENTAL TO THE GENEVA CONVENTIONS! What you have established is that you (a) don’t know what you’re talking about and (b) are prepared to parrot the Party Line. Comrade Dzerzezhinsky would approve.
Regards,
Ric
The next war we fight, we should draft all the lawyers, give ’em rifles and uniforms, and send them in
withas the first wave.Fixed that for myself.
How about a federal law that confers on every new Law Exam passer a duty to serve in the armed forces of the United States (in a position of the armed forces choosing, provided that position is not lawyering) along with the right to practice law after discharge. Filling the ranks of the military with whip smart grunts and reducing the ultimate number of lawyers in the country all in one fell swoop. No tickee, no washee.
“…Ole Billy was right,
Let’s kill all the lawyers,
Kill ’em tonight.”
Funny how a hard core lefty like Don Henley could still hate lawyers. Poetic license, I guess.
Karl, was this in the legal terms?
As part of the law?
Sashal
Google ‘Ex Parte Quirin’ and work your way backward from there.
I would love for jon to support his claims from the language of the opinion.
Karl
You mean that little bit’o business about ‘torturing’?
NO. IT DOES NOT DO ANY SUCH THING.
It does so for these particular detainees. In the case of future offenders of the same class, it says that they should either be shot out of hand — the previous procedure, perfectly legal under the Laws of War, including the Geneva Conventions — or turned over to the tender mercies of local authorities.
I say again: The whole point of Guantanamó was, from the beginning, an attempt to gain time to separate sheep from goats. In the confusing swirl of combat and its associated activities, innocents and minor players will inevitably be swept up in the confusion. You just said we can’t do that, which means that judgements on such matters must and will be made on the spot, in the middle of the mess, by people with other priorities (bullets wheeing past their heads, e.g.). Yeah, you can, and probably will, hunt down the soldiers involved and try them for “War Crimes”, with maximum media circus, but Hamzid the Goatherder will still be dead, instead of being inconvenienced for a while.
If you’re really seeing this as a civil rights matter, you make Mr. Magoo look like Nostradamus.
Regards,
Ric
“Once again, will an affidavit from the capturing troops be sufficient, or will the soldier who witnessed the enemy combatant need to be deposed?”
American servicemembers don’t lie on affidavits, do they?
sashal,
No, but that’s not the end of the story. Consult Knut Dörmann (a Legal Advisor at the Legal Division of the International Committee of the Red Cross):
The whole article should be of interest.
“You just said we can’t do that, which means that judgements on such matters must and will be made on the spot, in the middle of the mess, by people with other priorities (bullets wheeing past their heads, e.g.”
It sounds like he’s saying the judgments should be made in courts. Which is quite far from the spot and allows quite a bit of time to sort people out.
sashal: “Some very bad people will walk free along with the innocent because Bush administration tried to fool around domestic and international law, creating new designation of “unlawful combatant†so that they could either hide detainees from due process indefinitely or, failing that, conduct kangaroo courts.”
“Unlawful combatant” is, at the very worst, a de facto designation created by the Geneva convention. By defining the criteria for an irregular “lawful combatant,” they created the alternate category — an irregular combatant who did not qualify as a lawful combatant (i.e. one entitled to the protections of prisoner of war status), they defined “unlawful combatants” — combatants not entitled to the protections of a legitimate prisoner of war.
Sdferr,
No, I’m referring to jon’s rather psychic predictions as to what the contours of habeas protections will be for aliens captured and detained abroad.
Rick, 73, comrade Dzerzhinsky would never approved of me.
And you know that.
c’mon.
Can we reserve the unsubstantiated personal attacks to the sites like Daily Koss or little green footballs ?
thanks , Karl 83, I bookmarked the link
Uh, regards guy, apparently the Supreme Court disagrees with your rather silly assertion of what the Geneva Conventions say: Justice Kennedy in Hamdan specifically addresses your assertion that legal black holes exist in the world where we can toss citizens of other countries. Sorry, I know you still wish this were 2004, but it ain’t. You lost your argument long ago.
And to Kelly, since po is right and you are wrong, what law he practices is immaterial. You remain wrong even if he’s on TV during Springer begging accident victims to get their fair share.
Karl, do you ever read legal analysis that doesn’t come from Scalia’s prodigious ass?
HPennypacker,
The outcome of a 5-4 case is legally binding and must be obeyed. It is not necessarily right, however — or do I need to run down a list of cases that were wrongly decided, later overruled, etc.?
Do I read legal analysis other than from Scalia? All day long, most weekdays. Much more than you, based on your e-mail address. And I just referred sashal to some, which shows how much attention you’re paying.
BTW, is this the sock-puppet you’re going to stick with, or will I have to get Jeff’s okay to out all of your various aliases?
American servicemembers don’t lie on affidavits, do they?
I would hope not, but that’s the problem with trying to run a war as a law enforcement issue through a civilian court. When people are shooting at you, I doubt your focus is going to be on the evidence you’ll need to detain your enemy. The battlefield will make for a difficult crime scene as far as collecting evidence. It may not be impossible, but it’s problematic. If standards can be established that a soldier can follow without further risking his/her life, fine. I just don’t want some wah-bulance chaser deposing a service person, who’s lost their sight during a battle, to identify the defendant in court. Sure, it’d be swell if everything would run like an episode of “Law and Order”, but just I don’t see.
Coming this Fall- CSI: Mosul.
With this result, don’t we now go back to the original Bush admin policy?
JD,
Not really. Check the Gabe Malor link in the post for thoughts on that. Plus, more rendition, turning people over to the local authorities (who all have super human rights records), etc. The law of unintended consequences.
JD,
BTW, please note my exchange w/HPennypacker at #91, so you can start playing the home version.
SUPREME COURT OF THE UNITED STATES
BOUMEDIENE
v.
BUSH
Nos. 06-1195 and 06-1196
476 F. 3d 981
The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. The Government can move for change of venue to the court that will hear these
[petitioners detained at Guantanamo Bay ] cases,
Our opinion does not undermine the Executive’s powers as Commander in Chief.
Their [the petitioners detained at Guantanamo Bay ] access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.
It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined.
We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The determination by the Court of Appeals that the {Suspension Clause} and its protections are inapplicable to petitioners was in error.
The judgment of the Court of Appeals is reversed.
The cases are remanded to the Court of Appeals
{Suspension Clause}–here we find the government SNAFU boys boys boys application of an inapplicable doctrine yah hate to see it, a fatal freshman move,
The doctrine is {designated as enemy combatants}
find the exemption doctrine first before you open your mouth in court
It seems to me there is some confusion as to what this judgment means. The not so loyal opposition is so happy about it, they do not realize that this means they are now responsible for these people…and what they do.
I do think that the administration has been trying to find away to resolve all this for some time, but from what I have heard thus far, people can not seem to agree on what this means. The Democrats just think the Bush administration has been slapped and that is all they care about. Screw that whole bumper sticker War on Terror thingee.
I saw an interesting post at Big Lizards and thought I would post an excerpt:
Yes, I completely agree with Sen. Joe Biden’s (D-DE, 75%) commentary on the Boumediene v. Bush Supreme Court decision released today… actually, with part of Biden’s commentary. Well, to be perfectly blunt, I agree 100% with the last two sentences of Biden’s statement:
As we look forward, we must take stock that this decision was five Justices to four. If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.â€Â
Yes sir. One more justice. Contrarywise, if one more justice in the mold of Justices Ruth Bader Ginsburg or Stephen Breyer is appointed to the Court, decisions such as this will likely become commonplace.
Many conservatives wish someone less friendly to illegal immigrants had won the GOP nomination. They could never quite settle on who they wanted; nevertheless, many now threaten to sit out the election, forcing an Obama victory, in order to teach the rest of us a good, hard lesson — bow to their wishes, even when they themselves can’t decide what those wishes are.
I would like to address those conservatives directly: You have now seen what radical judges can do and how devastating that can be to the national security of the United States. You may very well see, in the next administration — particularly if those “sitting out” get their way — the federal courts order the release of top al-Qaeda terrorists back into the wild.
Five justices voted in the majority in Boumediene:
* John Paul Stevens is 88 years old; he was nominated by the unelected and very liberal Republican Gerald R. Ford. I cannot prove this, but I strongly suspect that Ford, like other liberals (Republicans and Democrats), believed in an activist judiciary, given his generally liberal politics;
* Ruth Bader Ginsburg is 75; she was nominated by President Bill Clinton;
* Anthony Kennedy is 71; is the only justice in the majority nominated by a conservative president, Ronald Reagan;
* Stephen Breyer is 69; he was nominated by President Bill Clinton;
* David Souter is 68; he was nominated by liberal Republican George H.W. Bush.
Note I listed them in order of age. Think about this: Nobody lives (or serves) forever; and it’s hardly a revelation that the older a justice is, the more likely he or she is to leave the Court — vertically or horizontally — through simple old age.
All five justices in the majority are senior citizens; three are in their seventies or eighties (Stevens is getting close to his nineties). By contrast, three of the four dissenters is in his fifties; only Antonin Scalia is in his seventies. But there is a very good chance that the next president will replace at least one, probably two, maybe even three justices… mostly liberal judicial activists. It will be an extraordinary opportunity to shape the Court for literally decades to come… and one conservatives will only get if John McCain beats Barack H. Obama in the elections on November 4th.
injustice,
I would respond if you would write in sentences containing formed thoughts. I suspect that my first response in #91 is appropos.
Terrye,
Perhaps true, but to play Devil’s Advocate, Johnny Mac probably agreed with today’s result and the result in the cases which led up to it. Privately, if not publicly. Yet he claims he would nominate people like those who dissented. Makes one wonder.
“I would hope not, but that’s the problem with trying to run a war as a law enforcement issue through a civilian court.”
But its determined that it will be a law enforcement issue.
“When people are shooting at you, I doubt your focus is going to be on the evidence you’ll need to detain your enemy.”
I suppose the evidence is that the dude was shooting at you.
andrea argues like actus used to.
Karl – LittlePecker is another one of the gems.
Maybe its time to utilize the KILO decision, and build 5 new federal war detention court buildings…
This decision, applied laws that were not pertinent; ie; a 1779 decision involving Spanish sailors, and ignored
precedent that did apply (ex parte Quirin, Merryman, Milligan, Eisentrager;
the last is most pertinent as it
involved German P.O.W.s in China; throwing out more than 200 hundred years of precedent on military tribunals. Now as pertaining to this case; Boumedienne & Oudah were involved
in an attempted bombing of the US Embassy in Sarajevo back in 2001; the Bosnians turned them over to the military and they were sent to Gitmo, Send them back to Bosnia, or better yet Tunisia would be the immediate remedy
for these two; following the ruling of the companion case, Munaf, involving American involved in insurgent activity
in Iraq. Or let them go, and wait for something else to go boom; remember the last ‘boomer’ waited nearly three years
before he went off in Mosul, last month.
I suppose the evidence is that the dude was shooting at you.
andrea, I posted on this previously:
“The guy was guilty enough for me to shoot him, but I only winged him so we patched him up and put him in Gitmo where he’ll now be presumed innocent in a trial to see if he was actually shooting at when I shot him ‘cuz he was shooting at me?
What. The. Fuck?
Are they going to have to pull troops out of the field or put them back on Active Duty to testify at these trials?”
Soldiers must not become cops and cops must not become soldiers or else enemies start being treated as citizens and citizens start getting treated like the enemy.
Wait until troops start getting ‘stop-lossed’ so they are available and on duty for years and years of procedural delays to testify in front of these trials.
Complete usurpation by the SCOTUS. ONLY Congress can determine the jurisdiction of the Federal Courts, not the Supreme Court, even if it were 9-0.
The proper course would have been to let the President and DoD establish the military tribunals and *then* to have filed appeals in the event of actual abuses or errors. This entire course of pre-emptive appeal (which should never have passed muster for certiorari–lack of cause) has served only to delay proceedings and cause the “until hell freezes over” (false) impression.
This decision fully subverts the purposes of the Geneva Conventions. While they may have before been considered “quaint,” they may now, safely, be considered void.
Dread Cthulhu: All detainees are accorded humane treatment per the Third Common Article, whether or not they are explictly granted that right under the GC. That’s how all of us are trained. Those that fail in this duty are punished.
If you know of cases that have been otherwise, you have a duty to say where, when and who. If you do not know to whom to report this, tell me and I’ll help you.
RE
Karl
“injustice,
I would respond if you would write in sentences containing formed thoughts”
Karl
Thanks
at least somebody got it !!
kon-fuse-ed
court o-pin-eon
This decision fully subverts the purposes of the Geneva Conventions. While they may have before been considered “quaint,†they may now, safely, be considered void.
That’s what it seems to me. I would recommend from now on you interogate as best you can in the field then shoot the bastards. Dead. Right. There.
Dread Cthulhu: All detainees are accorded humane treatment per the Third Common Article, whether or not they are explictly granted that right under the GC. That’s how all of us are trained. Those that fail in this duty are punished.
Okay, dispatch them humanely. Dead. Right. There.
Your Honor, he died of high velocity lead poisoning!
RTO Trainer: “all detainees are accorded humane treatment per the Third Common Article, whether or not they are explictly granted that right under the GC. That’s how all of us are trained. Those that fail in this duty are punished.”
There are different levels of protections, RTOT. Those who do not qualify as “prisoners of war” or “protected persons,” such as mercenaries and non-qualifying irregulars, are not entitled to the same level as individuals serving in regular forces or civilians not taking up arms.
What this decision does is blur the distinctions and undermine the treaty and will, like as not, drag warfare back to the days and tactics of “total war.”
DC: No argument on the outcome.
Did I misunderstand your comment @ 20? It seemed to me you were alleging that basic humane treatment (as in accordance with the 3rd GA) was not observed.
As I wrote on my blog, McCain could – if he goes further – win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.
[…] Protein Wisdom: Like most with an interest in the issue, I am just beginning to skim the Supreme Court’s opinions on the habeas corpus rights of unlawful combatants detained in Guantanamo Bay […]