Supreme Court Blocks Trials at Guantanamo

You seem to forget Cosmoline that the detainees at Gitmo are not U.S. residents, so how could they be subject to U.S. criminal justice in a trial as you suggest under our criminal justice laws?

Click to expand...

They are alleged to have taken part in a criminal conspiracy to attack citizens of the United States. That's a crime. If they are guilty of no crime, what right does the DOD have to hold them? Clearly they are not enemy soldiers. They're not soldiers at all. They fight for no state, and there is no state or entity to negotiate with for their release or to treat with to end the conflict.

If the administration had its way, it would be able to take citizens and non-citizens alike and hold them forever with no habeas corpus, no judicial review and no oversight. I realize the court system has stepped in to modify and limit the executives' efforts--but that does not change the fact that George has tried again and again to impose executive power without restraint. The fact that our AG is even making such arguments should be cause for great concern. In their ideal universe, the criminal justice system is merely one option for the federal state.

Cosmoline said:

I would like to see them tried and convicted, but then I still adhere to these archaic notions of due process.

Click to expand...

I would like to see them tried, but by a civilian court rather than by a special (not even routine) military tribunal. I would like to see convicted only those among them who are actually terrorists ... and I do not for a single nanosecond believe that all 450 of them are terrorists. Remember, some of those dudes weren't even swept up by our own forces -- some of them were collected by the war lords of the "Northern Alliance" we had acting as our surrogate invasion army in Afghanistan. Some of those people were doing nothing more horrible than defending their turf against an invading military force.

The other issue that bothors me about the administration's proposal is that these "detainees" are not prisoners of war. There was no declaration of war, or even a Congressional resolution authorizing use of force like in Iraq, when we went after Osama in Afghanistan. Plus the aforementioned fact that many of the detainees weren't engaged in fighting against the U.S. forces. Plus the fact that they were civilians, not soldiers wearing their country's uniform, and therefore are not prisoners of war. (Which may be why the admin refers to them as "detainees" rather than as POWs).

The whole thing stinks. If they are as bad as the admin says -- empanel a court, trot out your evidence, and hold the trial. If you can prove they are guilty of terrorism ... lock 'em up and throw away the key. If you can't prove it ... send 'em home. Holding them for years and trying as hard as possible to deny them due process or even access to counsel is just plain wrong.

They didn't block trials they blocked tribunals.

Ok, fly them back to IRAQ, chopper them to the remotest part of the desert and let them be on their way.

Just make sure that a few battallions of ATRY are ready to fire for effect into thier new 'practice range'.

If they ARE enemy combatants, well, they died in combat. If they are 'innocent civillians' then what were they doing on a US Army practice range?

I think this is a victory for those who value liberties

The government made up a type of prisoner so they could hold these people without the protections of being either criminals, or prisoners of war.

I am sure many are evil, or followers of evil ways. However, we lose any moral legitimacy in a war on evil by trying to use technicalities to get around due process. In addition, the practice of sending these prisoners to foreign nations to be tortured by dictator regimes is apalling. How trustworthy is a confession from someone held in an Egyption prison? How can the US use such a confession in any tribunal?

Between Guantanamo and fiasco of daring to call Iraq part of the war on terror I believe that this administration has put the US under greater threat than it was before.

All the decision means is that the president has to get more power from Congress. Hopefully they won't give in.

How trustworthy is a confession from someone held in an Egyption prison?

Click to expand...

Not very. As we now know, many of the terror alerts coming from DHS in the first years after 9/11 were prompted by rantings of alleged AQ prisoners who were under the knife at the time.

One of the saddest things is to see how many here actually think the Gitmo detainees are insurgents from Iraq, or that the camp has anything to do with the fighting there. It doesn't. That's what happens when you listen to too much AM radio, I think.

Hawkmoon said:

There was no declaration of war, or even a Congressional resolution authorizing use of force like in Iraq, when we went after Osama in Afghanistan.

Click to expand...

Yes, there was an Authorization for Use of Military Force supporting the war in Afghanistan. It was passed September 18, 2001.

Originally posted by Cosmoline: They are alleged to have taken part in a criminal conspiracy to attack citizens of the United States. That's a crime. If they are guilty of no crime, what right does the DOD have to hold them? Clearly they are not enemy soldiers. They're not soldiers at all. They fight for no state, and there is no state or entity to negotiate with for their release or to treat with to end the conflict.

If the administration had its way, it would be able to take citizens and non-citizens alike and hold them forever with no habeas corpus, no judicial review and no oversight. I realize the court system has stepped in to modify and limit the executives' efforts--but that does not change the fact that George has tried again and again to impose executive power without restraint. The fact that our AG is even making such arguments should be cause for great concern. In their ideal universe, the criminal justice system is merely one option for the federal state.

Click to expand...

What Cosmoline said bears repeating.

I was a JAG for several years. The law already covers civilians who take part in hostilities: they are criminals and are tried in criminal courts.

This "enemy combatant" nonsense is an unholy mishmash resulting from the executive branch's desire to pick and choose from two separate concepts:
1. If they are enemy soldiers, then they can be held until the end of hostilities BUT receive immunity for their acts on the battlefield (so long as said acts comply with the Law of War).
2. If they are civilians who take part in hostilities, then they can be tried BUT cannot be simply held indefinitely.

So, this administration has chosen to hold them indefinitely AND try them for their acts on the battlefield.

For all those cheerleaders who believe in terrorist prosecutions under the Gitmo kangaroo courts, just wait til Hillary extends that line of logic against any gunowner who says "I love my country but fear my government." The truest test of any law is not the good that it can do, but the evil that can be done according to the letter of that law.

spartacus2002 said:

If the administration had its way, it would be able to take citizens and non-citizens alike and hold them forever with no habeas corpus, no judicial review and no oversight.

Click to expand...

That is an assumption on your part with no basis in fact...

This administration has established an off-shore facility to house terrorists at Guantanamo. You post lacked an alternative to Gitmo but criticized it. What do you propose to do with these avowed terrorists who have sworn to do damage to Americans? Try them in our courts of law? Really? You want them to have the possibility of being turned loose? Would you feel safe living near a terrorist?

Since you said you worked with the Judge Advocate General, do you favor military tribunals for these detainees at Gitmo? Why or why not? If you want them to have regular trials in American civilian courts of law, would you allow them to live at your house while they are free on bail awaiting trial? Why or why not?

Far too many are criticizing Guantanamo and the terrorist detainees houses there; yet they surface no working alternative. Those that oppose Gitmo should step forward to offer to house the terrorists at their home, with their wives and children...

Everyone Is Barking Up The Wrong Tree(s).

Everyone is either barking at Bush or at the Supreme Court. Look at Article I, Section 8, Clause (11) of the Constitution. It says, "Congress shall have power: ...to make rules concerning captures on land and water:" All those in the prison at Gitmo are captures. It makes no difference if they were in uniform or not, or fighting for any particular nation or not. As has been pointed out, we have declared war against these people(Terrorists) and any nation that aids, gives comfort to, and provides them sanctuary.

It is up to Congress to decide how to deal with these people; not the Court, and not the administration. It can rightly be said that Congress gave carte blank to the administration to deal with these people as it sees fit, having declared war and not set specific rules for dealing with these people. If there is concern, it is up to Congress to enact specific law.

Back up one Clause in the Constitution to where it says, Congress shall have power: To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" Again, here is another aspect of the whole situation, and power to set the rules and deal with this rests clearly in the lap of Congress. Bark at the Congress.

Look at some of the trip wires in this mess if it is handed over to the courts. Were any warrants ever issued to arrest these people held at Gitmo? No. Any Grand Jury hearings been held to issue indictments? No. Each of these guys would have to be charged with a crime committed within a particular state, and tried in the district wherein the crime shall have been committed.

These people were captured by the military on foreign soil during war, because of their war-like actions against this country, and fall into those categories I pointed out that are spelled out in the Constitution. This is a matter for the Congress to handle. These people do not fall under the rules of the Geneva Convention. They are not acting in concert with any military action of any country - let alone any country that is signatory to that convention.

Woody

Thomas Jefferson worried that the Courts would overstep their authority and instead of interpreting the law would begin making law....an oligarchy...the rule of few over many. I think we are seeing that oligarchy rearing its ugly head - er - FIVE ugly heads.

That is an assumption on your part with no basis in fact...

Click to expand...

Do you deny they have repeatedly tried to hold US citizens as "enemy combatants"?

This administration has established an off-shore facility to house terrorists at Guantanamo.

Click to expand...

HOW DO YOU KNOW WHAT THEY ARE?? HOW DO YOU KNOW THEY ARE TERRORISTS?! WHY THE DEVIL DO YOU TAKE THE WORD OF THE FEDERAL GOVERNMENT AS GOSPEL TRUTH ON THE MATTER?

Far too many are criticizing Guantanamo and the terrorist detainees houses there; yet they surface no working alternative. Those that oppose Gitmo should step forward to offer to house the terrorists at their home, with their wives and children...

Click to expand...

If the detainees are criminals, they should be tried in the court system. Ever heard of the court system?

Congress shall have power: ...to make rules concerning captures on land and water:" All those in the prison at Gitmo are captures.

Click to expand...

The captures are prizes--physical ships and cargo. Not prisoners.

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations

Click to expand...

And indeed piracy is a crime. Nobody is denying that Congress can make planning or executing attacks on the United States illegal. But that does not mean they get to by-pass the judicial process.

Everyone yacking needs to check out Volokh Conspiracy even they can not agree what the ruling means. But from what I understand there can be military tribunals or court marshals but congress needs to decide what they want. The military can try them still. I would send them back to their country of origin if Congress says it has to be in federal court. (which they won't)If they are Saudi they will be excuted by getting their heads cut off. If Jordanian they will be executed. Egyptian same. Iranians they will be back to kill us again. Afghan Dead. So one way or another most will die and their home country won't
mess around it will be done quickly. They may get a good torturing before hand that will make them wish they were at GITMO.. Don't worry they will not escape if they are Al Quida.

No wonder I had problems with Geography class in junior high.

They got high seas in Afghanistan? And pirates? NOBODY TOLD ME!

I'm disturbed to see the supposed "conservatives" on the USSC voting in favor of kangaroo courts.

Why is everyone calling them terrorists? There's been absolutely no proof for that in the vast majority of cases. I don't think the Geneva convention applies as they're not soldiers, airmen or sailors. However, they still have human rights. If they're terrorists, charge them and they'll be found guilty. If they're not, why keep them locked up without charge?

Fosbery said:

Why is everyone calling them terrorists?

Click to expand...

Because they are...

Well the people at Volokh are both better qualified and probably read the entire decision instead of just the syllabus; but if I had to sum up the decision in one brief paragraph it would be:

There is nothing saying that terrorists cannot be tried by military tribunal at Gitmo; but you can't call this kangaroo court you gave Hamdan a military tribunal and if you use a military tribunal, you must try him under the laws of war - not U.S. criminal laws.

I'm disturbed to see the supposed "conservatives" on the USSC voting in favor of kangaroo courts.

Click to expand...

Are you disturbed by the liberals and moderates on the USSC ignoring the law passed by Congress removing jurisdiction over Gitmo from federal courts, in accordance with Congress' Constitutional authority to limit jurisdiction?

Everyone seems to forget that to reach its result, the Supremes had to ignore a law that the legislative intent was clear would apply to this case. Regardless of the merits of the case, it's disturbing that the fact that the Supremes effectively went rogue is not even up for discussion here.

Does Congress have the power to remove any group it chooses from the protection of due process?

Because they are...

Click to expand...

Well they must be, because we all know the feds NEVER lie.

Beren said:

I'm disturbed to see the supposed "conservatives" on the USSC voting in favor of kangaroo courts.

Click to expand...

Well, it shouldn't be news... Thomas had indicated he was willing to write the President a blank check in Hamdi v. Rumsfeld and Scalia indicated he was willing to tolerate quite a bit. This was in a case where the detainee was an American citizen.

buzz knox said:

Everyone seems to forget that to reach its result, the Supremes had to ignore a law that the legislative intent was clear would apply to this case. Regardless of the merits of the case, it's disturbing that the fact that the Supremes effectively went rogue is not even up for discussion here.

Click to expand...

Actually, the decision spends quite a bit of time discussing that aspect of the government's arguments. So much time I haven't read it all; but the syllabus sums up the arguments as saying that by specifically choosing to limit the timeframe for suspension of habeas corpus to EXCLUDE this case, Congress plainly indicated its intent.

Apparently the clarity of legislative intent was interpreted the other way here. In any case, I don't think you can make a valid argument that U.S. kangaroo courts are OK due to jurisdictional issues. If you are not going to give somebody real due process, I think giving them sham due process is even more offensive than giving them none at all.

Cosmoline said:

Does Congress have the power to remove any group it chooses from the protection of due process?

Click to expand...

It is in the original Constitution. Congress has the power to suspend writ of habeas corpus which allows detention indefinitely without review by the courts.

This is actually not so bad a decision, or at least it wouldnt be if Bush et al admitted these men to be prisoners of war.

If the US deems them all "prisoners of war" under the Geneva Convention, then they can be held for as long as "the war" takes place, and offences they have committed can be dealt with by military courts, as if they were US service personnel. They can still be interrogated, they just cant be tortured.

So you get to try them as if they were US service personnel, in a military court, and those you dont try, you can keep for as long as "the war" lasts, which is pretty much as long as you can think of making it last.

Seems a safer alternative than inventing new systems that the USSC can throw out.

http://www.unhchr.ch/html/menu3/b/91.htm

agricola

It is in the original Constitution. Congress has the power to suspend writ of habeas corpus which allows detention indefinitely without review by the courts.

Click to expand...

Not of citizens, in spite of this administration's efforts to do so. Moreover, I do not believe Congress can give the executive power to declare anyone it chooses outside the bounds of all legal protection and subject to detention, torture or execution at the whim of the executive.

Cosmoline said:

Moreover, I do not believe Congress can give the executive power to declare anyone it chooses outside the bounds of all legal protection and subject to detention, torture or execution at the whim of the executive.

Click to expand...

What makes you maintain that foreign terrorists are subject to U.S. laws, protections, and rights?

Because they are...

Click to expand...

And what proof do you have of that? What court has charged them, tried them and convicted them of terrorism? Innocent until proven guilty, only dictatorships and their supporters say otherwise.