Confused
The SCOTUS gets one right, I think. Actually, it’s a bit confusing:
The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.
The ruling, a strong 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.
Said Justice Kennedy:
“Trial by military commission raises separation-of-powers concerns of the highest order,” Kennedy wrote in his separate opinion. “Concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution’s three-part system is designed to avoid.”
So if they try him, they have to take him to federal court — but they don’t have to try him? What?
More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda.
June 29th, 2006 at 3:23 pm
I’m with you. I’ve read a bunch of analysis that’s popped up, and I’m still unsure what the end result is.
I need more info on how Common Article 3 applies. Look at Counterterrorism Blogs entry also at
http://counterterrorismblog.org/2006/06/prediction_bush_congress_will.php
June 29th, 2006 at 4:01 pm
What I don’t get is, I thought the Geneva Convention didn’t apply to terrorists/insurgents/non uniformed fighters.
Is this not the case?
June 29th, 2006 at 5:39 pm
It’s not so much a blow to the Gitmo prisons as it is to the unitary executive theory. Sure, Congress can pass a new law authorizing what the administration has been doing, but the administration’s [bullshit] argument all along has been that they don’t need to do that; that the Constitution gives the executive all the authority he needs. Thus, if I understand it correctly, this really is a big blow to the administration, but not in the way you’d initially think.
Glenn Greenwald has the scoop.
June 29th, 2006 at 5:41 pm
Also, my understanding is that the court didn’t rule the tribunals violated just the Geneva Conventions, but also the UCMJ. Those two, put together, might be yielding the confusing result.
And the decision is muddied by the fact that Kennedy concurred only in part, and in some confusing ways, as I understand it.
June 30th, 2006 at 12:30 am
Rustmeister is right and SCOTUS is wrong.
June 30th, 2006 at 1:18 am
Well, let’s see…in the past two years this Supreme Court, in a series of 5-4 rulings:
— with the Kelo decision, turned every citizen who isn’t at least a millionaire into serfs who can be kicked off their land at the whim of our masters and betters;
— overturned the death sentence of a brutal Missouri killer not because his prosecution was flawed or unconstitutional…but rather because the “consensus judgement” of international law was that the death penalty was immoral (and remember this one when the Supremes get around to ruling on the next Second Amendment case);
— and now in Hamdan the same usual five suspects (in what would have been another 5-4 ruling if Chief Justice Roberts hadn’t recused himself) just extended the protections of the Geneva Conventions to a bunch of headhacking, babykilling rapists and terrorist thugs who, by their actions and under the terms of the Geneva Conventions, are not subject to its protections and in fact are unlawful enemy combatants liable to summary execution as spies, saboteurs and terrorists. Let me repeat myself: the Supreme Court just unilaterally rewrote an 80-year-old treaty to give Al Qaeda terrorists, in effect, more protection than our soldiers will receive should they fall into enemy hands. Aren’t making and ratifying treaties the Constitutionally-mandated resposibilities of the Executive and Legislative branches of government? And isn’t the President the commander-in-chief of the armed forces? So there’s a definite seperation-of-powers issue with Hamdan, too.
Not to mention that fact that in saying that this President did not have the authority to order military tribunals for captured jihadis, these five Supremes casually ignored over a century and a half of existing constitutional precedents that said otherwise. Stare decisis, anyone? Or is that reserved only for Roe v. Wade? In fact, one of the points the Gang of Five made in the Hamdan decision was that Congress had not authorized this President to organize military tribunals…which means that future Presidents – maybe even Mr. Bush, in the final two years of his term – will be unable to effectively prosecute a war because he’ll be fighting for control of the wheel with 535 would-be Congressional CINCs…with five would-be emperors in black judicial robes sticking their oars into the mess as well. This may end up being the worst Supreme Court decision since Dred Scott sparked the Civil War…and the consequences of Hamdan may turn out to be just as bloody.
And Justices Stevens, Kennedy, Souter, Ginsburg and Breyer have the nerve to accuse the President of overstepping his constitutional boundaries? These five yahoos demonstratably don’t give a rat’s ass about the Constitution. How’s that for a Constitutional crisis?
June 30th, 2006 at 12:03 pm
Umm, I don’t think the phrase unlawful enemy combatants exists anywhere in any of the Geneva Conventions.
But I agree with you about the summary execution part. The reason we have uniforms is for the protection of civilians. If the combatants don’t conform to the rules of warfare, everyone is just going to have to accept a higher level of of civilian casualties.
After all, children and unarmed females can make dandy spotters and human shields. Guerrilla fighters can’t exits without at least a blind eye being turned by the civilians. I acknowledge and accept just about everything short of shooting little kids in the back of the head. War is hell.
However, once the prisoner is in our custody, it’s absurd and dangerous to liberty to allow a government to utterly ignore any rights the prisoner has. We are a nation of laws, not men. We are the good guys. Holding someone without trial for the entire extent of the perpetual war on terror is wrong.
One of the three guys that just hung themselves down in Gitmo was due to be released. Apparently he had been held theses past five years in error. Whoops. Seems that even though he was to be released, he wasn’t even told that. Of course, his suicide was an act of “asymmetrical warfare” and wasn’t at all about despair over perpetual imprisonment. Believe the USA propaganda.
if they can do that, then they can pick up just any José at say Chicago’s O’Hare International Airport, call him an “enemy combatant” and hold him until the perpetual war on terror is over. Regardless of his citizenship.
If it can happen to José Doe #2, why do you think it can’t happen to you?
June 30th, 2006 at 1:25 pm
Dang, SA.
That’s more than even my ego can handle…
Wonder if I can get folks to kiss my ring now?