Comments in the actual written opinion are supposed to be limited to issues actually before the court. Sometimes a judge throws in something additional, in the nature of social commentary or personal venting, but that is considered “dictum” – not precedentially binding.
We have not been debating the law. I have been lecturing on it is and there has been some dissent.
To matters lesser than my ego: The decision neatly splits the US into 2 camps: The conservatives, who are against the rule of law; and their opponents, who support it.
I’d like to think you were joking; were you?
But on U.S. territory.
I’ve been noticing your contributions lately. Welcome to the Straight Dope! Hope you hang around!
Shouldn’t we use the standard of justice most likely to determine guilt or innocence? You want to tip the Scales of Justice – just a little – just this time? Is that how we show our patriotism these days? Do we lower the bar before or after we presume they are “innocent”?
I think how one views this depends on just how indifferent one is toward basic human rights.
It looks like the detainees’ lawyers believe that this judgement suggests that the SC will lean towards full recognition of normal rights including GC rights:
*"In compelling the administration to comply with the Geneva convention at its war crimes trials, the court also implicitly outlawed some of the other controversial practices in the war on terror, such as torture and rendition, lawyers for the 460 detainees at Guantánamo said.
Some lawyers said the ruling places limits in other arenas of the war on terror, such as Mr Bush’s order authorising the National Security Agency to monitor the email and telephone calls of Americans without court oversight. The lawyers said the direction from the court for the Bush administration to comply with Geneva convention safeguards for humane treatment would apply not only to Guantánamo, but the dozens of US detention centres around the world.
The court also reaffirmed the rights of hundreds of inmates, held without charge at Guantánamo for four years, to challenge the legality of their detention in US courts.
Lawyers for the detainees were delighted. “What this says is that the administration can no longer simply decide arbitrarily what it wants to do with people,” said Michael Ratner, president of the Centre for Constitutional Rights, which represents about 200 of the men at Guantánamo. But there was no indication that the blow to the White House vision of overarching executive power would hasten the end of a detention regime that has become a symbol of abuse in the war on terror - despite Mr Bush’s comments that he would like to close Guantánamo."*
Not a chance. With their large constituency in the military the conservative US government will remain firmly opposed to the rule of law. e.g. Another reason for conservatives to hate truth.
So it’s a simple either/or:
either
- 1000s of US troops face war crimes tribunals;
or - Geneva Convention and the Rule of Law discarded.
I know which way my bet’s going.
I think that the case suggests that the Supreme Court will limit the President’s asserted power to act unilaterially where there are express statutes on the point, such as some of the telecommunication monitoring issues. On the other hand, Hamdan’s holding was based pretty exclusively on the statutory language of the UCMJ and the provisions of the Geneva Conventions that it incorporated by reference to the laws of war.
Because of the break-down of the Court, I don’t know if this decision can give a good read on how the full Court would decide on a Presidential action taken in absence of a clear law on the subject. The issue of rendition, in particular, is something that, in another context, was approved by the Court, and I don’t know if there are any statutory limits on the practice.
Because it was unnecessary to the Hamdan decision, the Court specifically avoided deciding whether the Geneva Conventions are enforcable on their own, as opposed to as when they have been incorporated by a particular statute (i.e. the UCMJ).
I think that we’ll have to wait and see how this plays out against the rest of the President’s agenda.
US-*administered * territory - but still *Cuban * territory. That’s the attraction of Gitmo to the administration for these purposes - there is no jurisdiction by any pesky civilian legal system. Cuba could claim it, but obviously won’t.
Bush has said several times he wishes he could close the place. Well, George, you’re the Commander in Chief, ain’tcha? Who’s stopping you?
With reference to your final comment, I believe quite strongly that they’re following the second option. “Judicial self-restraint” and minimalist intrusion on “the political branches” spheres of action.
Habeas corpus rulings are a bitch. If the Great Writ is not honored and defended, judges might as well simply retire, collect their pensions, and say, “We never really meant ‘rule of law’; gimme that rubber stamp so I can endorse whatever the criminal justice sy stem wants.” But if it is properly dealt with, the court system is plagued with appellant convicts manufacturing reasons why their valid convictions should be overturned on arguments that would make the What 16th Amendment? nutballs laugh in disgust. So SCOTUS tries to carefully tailor any Habeas Corpus ruling as narrowly as possible.
Bottom line: the Gitmo detainees are largely men who, whether validly or not, are believed to be adherents of a group which has determined to seek revenge for what they feel is desecration of sacred soil by America by any means at their disposal, including terrorism. Whether all of them are actually in this group, or whether many or any of them are in fact adherents of that group, is a completely different issue, one which calls for trials, and ones conducted in the Anglo-American tradition as true investigations into guilt or innocence, not kangaroo court show trials. The Administration, paranoid about security and the Al Qaeda threat to America, is unwilling to confront the accused with the evidence against them, because in doing so they would give away security secrets. But without that confrontation, the accused cannot mount a meaningful defense, as they are entitled to do by law.
I hate to be Captian Obvious here, but I think restating those basic principles is significant to understanding the situation.
Okay, given all that: SCOTUS rules that (1) they deserve a fair trial, one in accord with the Constitution and the Geneva Conventions, (2) there are ways to do this without revealing critical security information, (3) those ways have not been duly authorized by those empowered to authorize them, i.e., the Congress and President, and (4) the President is not empowered to supersede the rule of law singlehandedly, but can implement a method for giving a fair trial that nonetheless does not give away what needs to be kept classified, provided that Congress authorizes him to do so.
And, key to the whole issue, anyone is entitled to a fair trial on what he’s accused of. That trial can be conducted using variants on the standard system appropriate to the unique circumstances of the instant situation. But it must be a fair trial under a relatively flexible standard for defining what one of those is.
So it was a fairly narrow ruling, but one that defended some basic American principles. Nice job, SCOTUS majority!
My take:
There is no congressional statute permitting Bushs idea of trials.
There is no statutory authorization for such trials
They are against the Genava Convention
It rejects the idea that “the war on terror” gives the administration a blank check to do what it wants.
Congress can give thus kind of power and authorization. It has not.
It is illegal to proceed without it.
It says there should be a minimum guarantee for all trials. A base line Bush cant see.
It is against the military justice code and the Geneva Convention.
But in my view to treat prisoners as assumed guilty and without rights is anathema to any system of justice. It is saying Arabs are not worthy of a fair trial. You may read differently but I believe it is so internationally . This ruling restores some concept of American Justice which has been sorely lacking.
What if, hypothetically, Congress does pass a statute authorizing a particular kind of trial or tribunal for the detainees – but the form specified still appears to violate the Geneva Convention?
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How did you see the Constitution playing into their ruling? What specific part of the GC? The ruling did not grant them POW status, as some might think. We too often here talk of the GC as if means just one thing. Everyone is covered by the GC, since it states how to deal even with those who are not signartories. It’s all a matter of which part we’re talking about.
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Yes, and we’ve seen that with Mousssawi.
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Yep, the President must get explicit direction from Congress.
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I don’t think that is a new finding by the Court, but yes that certainly was in there.
Anyway, I think your point #1 gives a much broader reading of this ruling than is warrented.
It was my understanding that most of the military leadership were against special executive tribunals and in favor of Courts Martial following the GC. They want to preserve the GC’s protections for our own servicemen. It is primarily the civilian leadership (Bush and Rumsfeldt) that were pushing against the established rule of law.
I believe your dichotomy is false: they could choose to try abusive soldiers under the UCMJ.
That’s a good question, and one the cynic in me expects may well be answered in the forseeable future. Based on my limited reading of the case and commentary, I suspect that the answer is going to be that the Geneva Conventions are controlling, unless there are further changes in the composition of the SCOTUS.
This is not entirely clear from the ruling. (In fact, there is little that is entirely clear in the ruling, other that the tribunals as currently established won’t fly.) Kennedy’s concurrence (joined by Breyer, Ginsberg & Souter) seems to shed the most light here. His introduction noted the significant separation of powers issues in military commissions controlled entirely by the executive branch. He pointed out that the UCMJ statutory scheme incorporates the Geneva Convention’s requirement that the tribunals be a “regularly constituted court.” He detailed the significant ways in which the tribunals differed from courts martial, including (1) that the appointing authority (a designee of the Secretary of Defense) has much more influence over the proceedings than in a court martial, (2) that there is no requirement to have a military judge as presiding officer, (3) they are not reviewed by the military appeals court system, but by an ad hoc appeal panel (only one of the three members of which need be a judge), and (4) that there is a weaker standard of evidence, replacing the military rules of evidence (modelled on the federal rules of evidence) with a standard allowing anything where “the evidence would have probative value to a reasonable person.” With regard to the reduced evicence standard, it would permit the admission of hearsay, unsworn statements and coerced statements, except those “established to have been made as a result of torture.”
I don’t know what the Court would rule if Congress established tribunal rules which they specifically said would apply notwithstanding the Geneva Convention. The Convention, as a treaty of the U.S., may be abrogated by a subsequent Congressional enactment. However, I find it unlikely that Congress would adopt something that says the U.S. is abrogating the Geneva Convention.
Even if Congress does expressly establish tribunals with weaker protections for the accused than those in courts martial, it is an open question on the extent to which those tribunals must follow established Constitutional criminal jurisprudence (Fifth Amendment, Sixth Amendment, etc.) applicable to ordinary criminal trials.
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There would a long, slow process of appealing up the judiciary to work things out again. That process might very well outlast Bush’s presidency.
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What specifically do you mean by the GC? The treatment of POWs vs non-POWs is significant, and the Court certainly didn’t grant the detainees POW status, nor do I think it would likely do so in the future. Non-POWs do still retain some rights under the GC, but those don’t appear to me to be any more clear than what the Court ruled in this case.
It seems like the Court said that a “regularly constituted” court needed to have some basis in judicial precedent and couldn’t just be made up out of thin air (which is pretty much what Bush did). The decision said that a Court Martial format would be a good reference, although it did allow for deviations from that format when there was a legitimate reason to deviate. Now we can all argue about what constitutes a “legitimate” reason.
Not to speak for BrainGlutton, but I think that the Court is recognizing that there is a form of what might be called “procedural due process” in the GC that applies to anybody. It may or may not be the same protections as afforded under the Constitution. The President can not unilaterally eliminate basic protections of criminal procedure. I’m not convinced Congress can do it either, but I suspect they’re going to try.
I agree, and I didn’t mean to imply otherwise. I suspect that Congress will move the procedure closer to what most people would consider a “fair” process, but it’s unclear to me just how much closer it will move it. I fully expect a few iterations of this process (from Congress to the Court and back again) before it gets settled. And what about any detainees brought into the system after the DTA went into effect? Does this ruling even apply to them?
Yeah, much more litigation will ensue, unless the matter is rendered moot by closing the various detention facillities. I think the Court is at least implying that pretty much anybody can expect at least basic due process rights, regardless of when they were incarcerated, or when the claims are filed. They did not explicitly decide that, because they didn’t have to under the facts presented.
Actually, the Geneva Convention has an express requirement that a tribunal may only pass sentence after “affording all the judicial guarantees . . . recognized as indispensable by civilized people.” Although the Stevens plurality opinion joined by three other judges found that the tribunals procedures deviated from those indispensible guarantees, though Kennedy did not join this part of the opinion.
It remains an open question as to whether a different tribunal set-up would be held to be subject to the Geneva Convention indispensible guarnatees, or alternatively, the criminal procedure guarantees of the U.S. Constitution.