The Supreme Court ruled, in Hamdan v. Rumsfeld, that the military “tribunals” (using very different procedures than those established for courts martial) set up for Gitmo prisoners are unlawful because (among many other reasons) they go beyond anything Congress has authorized.
So now the Bush Admin is trying to get Congress to authorize them. But, more than that, it wants tribunals with even broader scope and jurisdiction than they have claimed up to now:
Am I the only one who suspects that, not only might these tribunals take a very broad reading of “aiding hostile acts,” but they’re not intending to limit their prosecutions to foreigners?!
Does anybody here think this legislation is a good idea?
And could it pass muster under the Geneva Conventions, which SCOTUS ruled still apply to such prisoners?
And could it pass muster under the Fifth Amendment? Or could an argument be made, even after Hamdan, that the Fifth Amendment does not apply here?
Hasn’t that already been decided as unconstitutional by the SCOTUS in Hamdi?
It’s not a piece of legislation until it gets passed. I see this is the administrations first bargaining position. We’ll see what Congress actually authorizes, and it’s pretty clear that even the Republicans aren’t just going to rubber-stamp Bush’s proposal.
Probably not-- I’m thinking particularly of not letting the accused see the evidence being used against them.
Can you quote the section in *Hamdan *that refered to the 5th amendment? I didn’t think constitutional issues were addressed in that decision. But why would the 5th amendment apply since its explicitly exempts “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger?” I’m assuming that a Court Martial would be excempt, and that SCOTUS, in Hamdan, said the tribunals should be modeled after Courts Martial.
I read that as meaning cases arising in the forces – i.e., courts martial of military personnel accused of crimes. The Gitmo prisoners are not American military personnel.