Supreme Court Awards Habeas Corpus To Guantanamo Detainees

Israel inflicted huge amounts of damage to innocent people in Lebanon but Hezbollah seems to be just fine. In fact, Rice even gave her stamp of approval on Lebanon government which saw an increase in Hezbollah power.

Rice visits Beirut, says she supports new government

As for those in the Guantanamo and other US detention camps, it might be harder to prove they were/are terrorist than some here proclaim. Many of them were innocent or low level Taliban with no ties to international terrorism and had no real information to give even after torture.

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I really don't care of any responses of defense or dismisses from defenders of this administration, it seems you guys will defend and condone and dismiss everything in the name of fighting terrorism so called.

I would like to just say that this administration can not be too soon in leaving. It is a shame on us Americans they were ever in charge and allowed to stay in charge in the first place and we bear just as much of the blame for the disgrace. This is not who I thought we were.

Yes, i'm sure you're content with the number of innocent, non-combatant Lebanese, including the elderly and infirm, mothers and small children, who were killed in Israel's futile effort against Hezbollah. As i have already pointed out, though, the operation was completely ineffective, as regards Hezbollah.



So i pointed out, first, that Israeli actions since 1947 have had the net effect of lengthening the list of their enemies, without doing anything to mitigate the animus against them. I next pointed out that their action against Hezbollah was ineffective. I finally pointed out that not only did they fail to destroy the PFLP and the PLO, but that those organizations are now back in what historically has been Palestine, and is either a part of the state of Israel, or territory seized by Israel in military action and under their control (such as the west bank of the Jordan River or the Gaza strip). And, in fact, much of the senior membership and the leadership of Fatah and Hamas are former members of the PFLP and the PLO. More than 30 years of Israeli "know-how" in fighting "extremist Islamic militants" not only did not serve to eliminate those organizations, it failed to even exclude the membership of those organizations from historical Palestine, and failed utterly to dismantle them as political organizations, in that they continue to operate politically as Fatah and Hamas.

Israel most recently slaughtered the Lebanese in response to the seizure of two members of the IDF by Hezbollah. There is a good deal of putatively expert commentary which says this is because Hezbollah had learned that Israel and Syria were negotiating for the return to Syrian control of the Golan Heights, which includes Shaaba Farms. That is a strip of territory which the Lebanon has historically claimed, and which Lebanese with militant attitudes claim is not a matter for Syria to negotiate. Hezbollah has made the return of Shaaba Farms to the Lebanon a significant "plank" in their political platform by which they claim legitimacy in the Lebanon as a representative of the Lebanese people. You may dispute that, and as it refers only to the justification Hezbollah claims for having grabbed the two IDF members, i don't think it worth arguing about. However, for whatever reason, Hezbollah did grab the two IDF members, and the massive murder of Lebanese citizens by Israel was predicated upon an operation to secure their return.

Israel failed to secure the return of their personnel. Israel failed to destroy Hezbollah militarily. Israel failed to destroy Hezbollah politically, and in fact probably enhanced their image in the eyes of many of the Lebanese, and probably throughout the Muslim world. There is no doubt in my mind that Hezbollah is one of the largest sponsors of international terrorism, and the net effect of Israeli bumbling has been to increase their "street credit" on the "Arab street." Hezbollah operates schools and hospitals for the people of the Lebanon, and Israeli action failed to interfere with that important propaganistic function, with additionally has the effect of rendering genuine service to the people of the Lebanon. Hezbollah operates a broadcasting service which includes radio and television broadcasts, the principle intent of which is to get their message out to the Lebanon, and to other parts of the Muslim world, and to enhance their political position in the Lebanon. The Israeli action failed to interfere in the least with this activity of Hezbollah, and certainly provided plenty of fodder for their propaganda efforts. Uncritical (and usually ill-informed) supporters of Israel have ran around hysterically screaming about Hezbollah rockets and have on that basis claimed that Israel acted in their self-defense. Yet international news agencies with no ties to Muslim militants and no agenda to support extremist Muslim propaganda (by which i mean organizations such as Reuters, AP, UPI and many, many other western news gathering organizations) reported immediately that Israel had attacked highway bridges and important highway interchanges in the Lebanon south of Beirut and in the Bekaa Valley, before a single rocket was launched at Israel in response to their aggression. This has the effect of lending credibility to the propaganda which Hezbollah disseminates.

This is only the latest, and arguably the most blatant, example of the ineptitude of Israeli policies in dealing with Muslim extremist militants.

But i am gratified on your behalf to learn of the joy with which you contemplate the killing and wounding and the dislocation of non-combatant Lebanese (who are also not members of Hezbollah) in their tens of thousands. I'm sure you were very happy.

Well said Setanta. "Failure" and "Israel" seem to go together. I think its a failed state.

Well, it's a little late to remedy the situation now. Israel as a national entity is a fait accompli. It will probably take a long time, and thousands and thousands more dead before they can be made to see sense, and stop being their own worst enemies.

I'm much more disgusted by the likes of Oralloy who is "content" with the slaughter inflicted on the bystanders.

Yeah me too, he see to have a callous disregard for the welfare of all but a select few.

I dont think the state of Israel is viable in its present form. Non-Jewish peoples will out breed them, even within Israel. If it goes on, more people will call for the final solution (and I use that phrase deliberately) - the expulsion or "transfer" of Muslim Arabs out of "Greater Israel". Is that what they are working towards?

How important is the "abroad" part of this, though? For example, in World War II, America detained German prisoners of war in the lower 48. Did the German prisoners have the right to challenge their detention in the federal courts? Did any of them try? (I couldn't think of any example, but that's not saying much.)

I would like to take the opportunity to thank Joe for his clear and enlightening post on the ruling.

I have not the least doubt that there a people within Israel who envision such a "final solution," and Oralloy, i suspect, would be evidence that there are people outside Israel who would also support such a solution. Very likely, though, the only solution (since neither the Israelis nor the Palestinians are just going to "go away," and neither group should be expected to do so) would be for Israel to live up to the responsibilities it was given by General Assembly Resolution 181 in November, 1947, and for the two groups to be segregated within the boundaries of the former Palestinian Mandate.

It doesn't require a criminal trial to hold someone as a POW until the end of the war.

If they show that any of these guys were fighting for the enemy (something that can simply be achieved with testimony from US soldiers who captured them) then that should be good enough to ship them off to a POW camp (whether the camp is at Guantanamo or Leavenworth).

I may have missed something over the years, but the whole point seems to be that the government doesn't want to hold them as POWs and has asserted previously that they are not POWs -- hence the "enemy combatants" terminology and the due process no-man's-land of Guantanamo.

Well despite what some people here may think, I'm not actually anti Israel an d certainly not anti Jewish, just very pessimistic about the prospects for a peaceful solution in that part of the world. But I hope you're right.

Seconded.


I don't think the Court ever bought this distinction. Even its conservative members. But yes, one of the delightful lessons of this ruling is that confusing terminology is not the executive's friend when it comes to due process.

I think you mean "unlawful combatant". The term "enemy combatant" refers to anyone who fights against us, whether lawful or otherwise.

It is true that unlawful combatants don't get all the protections of the Third Geneva Treaty of 1949 when captured (though Common Article 3 would still apply). But that does not deprive us of our right to detain them until the end of the war.

The Supreme Court accepts the fact that the protections of the Third Geneva Treaty of 1949 don't apply to unlawful combatants. However, they ruled that a detainee must first be properly adjudicated to be an unlawful combatant before being denied those protections.

So far none of the detainees have been so adjudicated. However, I expect that that will be taken up by the military tribunals soon enough.

The "abroad" part was extremely important to Scalia. He relied principally on Johnson v. Eisentrager, a case involving German prisoners captured and tried in China and held in Germany after World War II who attempted to assert the right to petition for a writ of habeas corpus. In Eisentrager, the SCOTUS held that constitutional protections did not extend to aliens held in foreign territories. For Scalia, that was determinative: Boumediene is an alien, Guantanamo is foreign territory, ergo no right to habeas. Kennedy, relying more on the Insular Cases, interpreted Eisentrager as saying that aliens in foreign territory had no constitutional rights as long as: (1) there were sufficient procedural safeguards available to them under military or international law; and (2) the foreign territory wasn't controlled by the US. For Kennedy, then, Eisentrager didn't apply to Boumediene because neither (1) nor (2) were satisfied in this case.

German prisoners in the US didn't have the right to access federal courts, but that's because they were covered under the Geneva Convention (III). Article 5 of that Convention states:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In other words, if there's some doubt about whether a prisoner is being held unlawfully, he is entitled to a review by a "competent tribunal." Chapter III of the Convention establishes that prisoners will be tried by military courts, unless the detaining state permits them to have access to its own courts. A prisoner of war in the US, therefore, could challenge his detention in a quasi-habeas proceeding before a military tribunal according to the rules set forth under the Uniform Code of Military Justice (UCMJ).

And that's what the SCOTUS essentially held in Hamdan. The majority there said that the detainees at Guantanamo were entitled to the protections of the Geneva Convention (III) -- or the equivalent thereof. It further held, however, that the CSRTs that congress established in the wake of the Hamdi decision weren't the equivalent of military tribunals under the UCMJ. Thus, the detainees weren't afforded the protections to which they were entitled under the Convention.

Thanks, again.

No, but it requires a tribunal to determine if a detainee is being properly held as a POW in the first place. The SCOTUS has now said twice (in Hamdi and Boumediene) that the military commissions set up by congress don't afford adequate protection for the detainees' rights.


Well, if it were so easy, why hasn't the Bush administration tried all of the detainees already?

No they did nor have the right to challenge their detention, and as far as I know none of them tried.
I know the POW's that lived here in KY, on the old Camp Breckenridge (which is where I live now) didnt challenge their detention.
As a matter of fact, 3 of the old POW's still live here.
They chose not to return to Germany after the war.

Let me amend that: the Geneva Convention (III) wouldn't have applied to German POWs in the US in WWII because it wasn't ratified until 1949. The applicable convention was the Geneva Convention (1929). I believe, however, that the substantive rights of prisoners to challenge their detentions are largely the same under both conventions.