High court blocks military tribunals

[E-Nice]

High court blocks military tribunals

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




WASHINGTON (CNN) -- The U.S. Supreme Court on Thursday ruled that the Bush administration did not have the legal authority to go forward with military tribunals for detainees at the Guantanamo Bay military base in Cuba.

The 5-3 ruling means officials will either have to come up with new procedures to prosecute at least 10 so-called enemy combatants awaiting trial, or release them from U.S. military custody.

The case was a major test of President Bush's authority as commander in chief in a wartime setting. Bush has aggressively asserted the power of the government to capture, detain, and prosecute suspected terrorists in the wake of the 9/11 attacks.

The high court was ruling on the case of Ahmed Salim Hamdan, a Yemeni native captured in Afghanistan in 2001, shortly after the September 11 attacks. He is accused of conspiracy, which his lawyers say is not an internationally approved charge.

His lawyers argued that President Bush exceeded his authority by setting up military commissions to try terrorist suspects, whom the administration terms "enemy combatants," rather than prisoners of war. The term means the suspects do not have the rights traditonally afforded prisoners of war, as outlined in the Geneva Conventions.

Three issues were before the high court: whether the planned tribunals are a proper exercise of presidential authority; whether detainees facing prosecution have the right to challenge the procedures of those tribunals and their detentions; and whether the Supreme Court even has the jurisdiction to hear such appeals.

The administration argued the president has long enjoyed wide discretion in his role as commander in chief.

The detention center opened in 2002, after the war in Afghanistan, and is still holding indefinitely about 460 men termed "enemy combatants" suspected of links to al Qaeda and the Taliban.

The designation of enemy combatant also means the suspect can be held without charges in a military prison without the protections of the U.S. criminal justice system, such as the right to counsel.

"This is the president invoking an authority that he's exercised in virtually every war that we've had," Solicitor General Paul Clement told the justices. He argued that the Guantanamo detainees are enemy combatants, who are not afforded the rights of prisoners of war in the traditional sense, since terrorists do not fight on behalf of a country or recognized army.

Late last year, Congress passed and President Bush signed the Detainee Treatment Act, which ostensibly limited court intervention over the prisoner issue.

Hamdan's attorney, Neal Katyal, told the justices, "If you adopt the government's reading here, they have said they want to try 75 military commission cases or so in the first wave, you will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are operating under."

Katyal said the government's charge of conspiracy against Hamdan is not allowed under international standards of law for prisoners of war, and that earlier federal courts had rejected that standard as well, since it was too broadly defined.

President Bush on Wednesday said he was considering shutting the overseas prison at Guantanamo, and was to decide after the court made its decision. "I'd like to end Gitmo, like it to be over with," he said at a European Union summit in Vienna.

"One of the things we will do is that we will send people back to their homes countries. We have about 400 people left 200 have been sent back. There are some who need to be tried in U.S. courts. They are cold-blooded killers. They will murder somebody if they are let out on the street. And yet we believe there ought to be a way forward in the court of law."

Many world leaders have pressured Bush to close the camp.
Chief Justice John Roberts did not participate in the Hamdan case. He had ruled against the government last year when the case was argued in a lower federal appeals court.

[Ash]

pwnt

[The Real Rick Springfield]

Originally Posted by E-Nice

"This is the president invoking an authority that he's exercised in virtually every war that we've had," Solicitor General Paul Clement told the justices. He argued that the Guantanamo detainees are enemy combatants, who are not afforded the rights of prisoners of war in the traditional sense, since terrorists do not fight on behalf of a country or recognized army.

when did Congress officially declare war?

john

[PETA]

Originally Posted by E-Nice

High court blocks military tribunals

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




WASHINGTON (CNN) -- The U.S. Supreme Court on Thursday ruled that the Bush administration did not have the legal authority to go forward with military tribunals for detainees at the Guantanamo Bay military base in Cuba.

The 5-3 ruling means officials will either have to come up with new procedures to prosecute at least 10 so-called enemy combatants awaiting trial, or release them from U.S. military custody.

this may well have been a victory that took those ten right the hell out of the frying pan and directly into the fire

Originally Posted by john_vella

when did Congress officially declare war?

john

There need be no officially declared war for the President to exercise war powers - Viet Nam was never a declared "war."

We didn't declare war on Afganistan, afaik - could be wrong though

the funding of the war effort by congress is tacit approval though if you're looking for that kind of thing

that's how the system was set up to work - the Executive because he has the single vote in the decision is in a better place to begin military action if/when necesary. Congress should they wish to check that action may withhold funding for the war thus preventing the executive from having too much rope. Traditionally, the Congress defers to the executive on these matters.

[hepkatmama]

Originally Posted by E-Nice

[B][SIZE=4]
Hamdan's attorney, Neal Katyal, told the justices, "If you adopt the government's reading here, they have said they want to try 75 military commission cases or so in the first wave, you will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are operating under."

Katyal said the government's charge of conspiracy against Hamdan is not allowed under international standards of law for prisoners of war, and that earlier federal courts had rejected that standard as well, since it was too broadly defined.

There are some who need to be tried in U.S. courts. They are cold-blooded killers. They will murder somebody if they are let out on the street. And yet we believe there ought to be a way forward in the court of law."

xian, explain this to me. why is there no forward for these criminals?

if they were being held unjustly because the govt. didn't try them, wouldn't bringing up charges in criminal (not military) court make them be held "justly"?

no comprendo

[PETA]

Originally Posted by hepkatmama

xian, explain this to me. why is there no forward for these criminals?

if they were being held unjustly because the govt. didn't try them, wouldn't bringing up charges in criminal (not military) court make them be held "justly"?

no comprendo

hehe - me either - I'd need to read the case - I'll try to get to it as soon as

here's my off the cuff though: The detainee was improperly held and not subject to military rtibunals - additionally - domestic criminal law as it currently stands provides no sanction for his acts in Afganistan nor Padilla for conspiracy as his co-conspirators are all foreign nationals acting in foreign states.... I think it was suggesting an extraterritorrial problem -- but I'm not sure

this is a pretty goofy area of law - we've got some US citizens in Gitmo an lot more who aren't US citizens. Few if any were captured in the US. Most cannot be considered lawful combatants under the applicable Geneva protocols (to which we are signatories and which have not been subsequently overriden). Can the US try the non-lawful enemy combatants before tribunals? I dunno - I think so. Can they try the US citizens before military tribunals? Apparently not. Can US criminal law reach criminal acts commited by US nationals commited abroad? - - that's what I thnink may be the sticky wicket - but - that's a guess





link to case

http://caselaw.lp.findlaw.com/cgi-bi...0&invol=05-184

[The Real Rick Springfield]

Originally Posted by xian

There need be no officially declared war for the President to exercise war powers - Viet Nam was never a declared "war."

does there need to be an official declaration of war for the geneva protocols to be in effect?

john

[PETA]

Originally Posted by john_vella

does there need to be an official declaration of war for the geneva protocols to be in effect?

john

I don't think that the lack of an official declaration relieves the obligations of Geneva protocols from US Soldiers (that's a guess - but I think a pretty good one) There may be exceptions when the enemy is a non-signatory state for example - or maybe not

[The Real Rick Springfield]

Originally Posted by xian

I don't think that the lack of an official declaration relieves the obligations of Geneva protocols from US Soldiers (that's a guess - but I think a pretty good one) There may be exceptions when the enemy is a non-signatory state for example - or maybe not

way to pin down an answer there, x.

john

[Nyteshade]

The Geneva Convention applies to our military whether war is officially declared or not. However, illegal enemy combatants (i.e. insurgents, terrorists) do not have those rights since they do not represent any country's military. Apparently the Supreme Court is aiming to change that.

[PETA]

I haven't read all of this but it was pretty interesting

http://balkin.blogspot.com/2006/06/h...-decision.html

Yale prof's take on the ruling

[The Real Rick Springfield]

Originally Posted by xian

I haven't read all of this but it was pretty interesting

http://balkin.blogspot.com/2006/06/h...-decision.html

Yale prof's take on the ruling

so the SC basically has said, "what you did wasn't against the constitution, but it was against the rules."

over-simplified?

john

[PETA]

Originally Posted by Nyteshade

The Geneva Convention applies to our military whether war is officially declared or not. However, illegal enemy combatants (i.e. insurgents, terrorists) do not have those rights since they do not represent any country's military. Apparently the Supreme Court is aiming to change that.

Patrick - if the law doesn't say what you want it to say just convince a judge to rewrite it.

If the opinion effects and extention of POW status to those who were intentionally left outside the protections of the Treaty is elevating terrorists to the status of a US Marine. Anyone find that troubling? I do.

[PETA]

Originally Posted by john_vella

so the SC basically has said, "what you did wasn't against the constitution, but it was against the rules."

over-simplified?

john

uh, yeah, if you could just quit asking me that'd be great





ducks and hides - I can't give you a decent answer just yet - haven't read even the whole of that Prof's blog entry to say nothing of the case

let me read the case and a few other commentaries on it and I'll try to give my boiled down opinion

[The Real Rick Springfield]

Originally Posted by xian

uh, yeah, if you could just quit asking me that'd be great

ducks and hides - I can't give you a decent answer just yet - haven't read even the whole of that Prof's blog entry to say nothing of the case

let me read the case and a few other commentaries on it and I'll try to give my boiled down opinion

"touch base" with me when you get a chance....
(see attached document)

john