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US Supreme Court ruling on military tribunals

 
 
oralloy
 
Reply Thu 29 Jun, 2006 08:29 am
http://cnn.tv/2006/LAW/06/29/scotus.tribunals/index.html

http://news.yahoo.com/s/ap/scotus_guantanamo_trials

http://news.yahoo.com/s/nm/security_guantanamo_court_dc


Link to ruling (PDF): http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf
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Type: Discussion • Score: 0 • Views: 2,807 • Replies: 58
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Thomas
 
  1  
Reply Thu 29 Jun, 2006 10:55 am
Still reading the opinions. Will be back later.
0 Replies
 
Cycloptichorn
 
  1  
Reply Thu 29 Jun, 2006 11:06 am
http://glenngreenwald.blogspot.com/2006/06/significance-of-hamdan-v-rumsfeld.html

Quote:
Thursday, June 29, 2006
The significance of Hamdan v. Rumsfeld

The Supreme Court today, by a 5-3 decision (.pdf) in Hamdan v. Rumsfeld, held that the Bush administration's military commissions at Guantanamo (a) exceed the president's legal authorization given by Congress and (b) violate the law of war, including CommonArticle 3 of the Geneva Conventions which, the Court held, apply to all detainees in any armed conflict, including Al Qaeda members.

This is a complicated decision involving complex and sometimes arcane legal issues, and is rendered somewhat more complicated by the fact that Justice Kennedy joined in most but not all of the majority's decision [the Court's opinion was authored by Stevens and joined by Souter, Ginsburg, Breyer and (with some exceptions) Kennedy; in dissent was Scalia, Thomas and Alito. Roberts ruled in favor of the administration in the appellate court (right before he was nominated to the Supreme Court) and therefore did not participate in the ruling]. But the most significant parts of the decision were joined by five justices, rendering it binding. This is a very significant legal defeat, in several ways, for the administration. Following are preliminary observations about this decision:

(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by "a "regularly constiuted court affording all the judicial guarantees which are recognized as indispensible by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating military and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ, since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which require such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.


(4) This decision illustrates just how critical is the current composition of the Supreme Court. The decision was really 5-4 (because Roberts already ruled in favor of the administration in the lower court). The Justice who wrote the majority opinion, John Paul Stevens, is 86 years old, and as Justice Blackmun once famously warned, he "cannot remain on this Court forever." If the Bush administration is permitted to replace Stevens with yet another worshipper of executive power, the next challenge to the Bush administration's theories of unchecked power could very easily result, by a 5-4 vote, in the opposite outcome.

(5) Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.

Nonetheless, opponents of monarchical power should celebrate this decision. It has been some time since real limits were placed on the Bush administration in the area of national security. The rejection of the President's claims to unlimited authority with regard to how Al Qaeda prisoners are treated is extraordinary and encouraging by any measure. The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded.

posted by Glenn Greenwald | 12:57 PM


Plan on seeing this case come up in arguments re: FISA laws and the breaking of them.

Cycloptichorn
0 Replies
 
revel
 
  1  
Reply Thu 29 Jun, 2006 02:09 pm
And they say miracles don't happen anymore, hey, Cyclop? I hope your right and the other things come down the same way.
0 Replies
 
dlowan
 
  1  
Reply Thu 29 Jun, 2006 03:38 pm
Great decision!!!


As I understand it, from what I have read, Bush can now set up military tribunals again, BUT they basically need to conform to the standards of normal American military tribunals...and the Geneva Convention?
0 Replies
 
msolga
 
  1  
Reply Thu 29 Jun, 2006 04:35 pm
Surprised

Dare one hope?
0 Replies
 
dlowan
 
  1  
Reply Thu 29 Jun, 2006 04:53 pm
Washington Post report:

Full Article

Supreme Court Rejects Guantanamo War Crimes Trials
In 5-3 Decision Justices Rebuke Bush's Anti-Terror Policy

By William Branigin
Washington Post Staff Writer
Thursday, June 29, 2006; 5:32 PM

The Supreme Court today delivered a stunning rebuke to the Bush administration over its plans to try Guantanamo detainees before military commissions, ruling that the commissions violate U.S. law and the Geneva Conventions governing the treatment of war prisoners.

In a 5-3 decision, the court said the trials were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949.




Justice John Paul Stevens wrote the opinion in the case, called Hamdan v. Rumsfeld . Chief Justice John G. Roberts Jr. recused himself.

The ruling, which overturned a federal appeals court decision in which Roberts had participated, represented a defeat for President Bush, who had ordered trials before special military tribunals for detainees at the Guantanamo Bay naval base. About 450 detainees captured in the war on terrorism are currently held at the U.S. naval base in Cuba. Trying them before military commissions would place them under greater restrictions and afford them fewer rights than they would get in federal courts or regular military courts.

Bush said he would consult with Congress to seek "a way forward" after the ruling, which reversed the appeals court decision on statutory grounds, avoiding major constitutional issues.

Answering questions at a news conference with the visiting Japanese prime minister, Bush said, "The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street. . . . I'm not going to jeopardize the safety of the American people. . . . I will protect the people and at the same time conform with the findings of the Supreme Court."

Bush added, "I want to find a way forward. In other words, I have told the people that I would like for there to be a way to return people from Guantanamo to their home countries. But some people need to be tried in our courts, and the Hamdan decision was the way forward for that part of my statement."

Members of Congress said the issue can be resolved by passing legislation specifically authorizing special tribunals for the Guantanamo detainees.

The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary's power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by Bush to try terrorism suspects.

Hamdan, who was charged with a single count of conspiracy to commit war crimes and terrorism, had argued that no congressional act or common law of war supported a trial by a military commission for conspiracy, an offense he maintained was not covered by the laws of war. He also argued that the commission's procedures violated U.S. military and international law, including the principle that a defendant must be allowed to see and hear the evidence against him. Hamdan acknowledged that a court martial constituted in accordance with the UCMJ would have authority to try him.

Writing the majority opinion, Stevens said, "we conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions." He said four justices also found that the offense attributed to Hamdan is not one that can be tried by a military commission under the laws of war.

The ruling does not mean that the United States must close the Guantanamo Bay detention facility or free any of its detainees, including Hamdan........



An audio analysis:

HERE
0 Replies
 
JustanObserver
 
  1  
Reply Thu 29 Jun, 2006 05:49 pm
A very common sense decision. Thank God for small miracles.

I'll be interested in seeing how the administration deals with this legislatively. At least Bush is being forced to follow proper procedure in this regard. His constant power grabs were making me sick. I may disagree with him in what he does, but at the very least, he needs to do such things properly. Not like his blatantly unconstitutional "signing statements" (I wonder when someone is going to take him to task on that one).

The Bush "double standard" bit him on the ass this time.

First he says that the prisoners weren't bound by the Geneva Convention (because they weren't military prisoners), then he created a new classification for them..."enemy combatants" and argued that they could not be tried in civilian courts, yet he goes and tries them by a military tribunal.

Sorry Bush. Either do it right, or properly change the rules so that you can do what you aim to do. The whole "Oh my God! Terrorists! Let me do whatever the hell I want now!" argument didn't fly this time.
0 Replies
 
oralloy
 
  1  
Reply Thu 29 Jun, 2006 07:50 pm
dlowan wrote:
As I understand it, from what I have read, Bush can now set up military tribunals again, BUT they basically need to conform to the standards of normal American military tribunals...and the Geneva Convention?


Pretty much.

It says that the both the Geneva Conventions and US Uniform Code of Military Justice require the military tribunals to conform to the rules that have been set up for courts martial.

It says that if Congress wishes, they can change the Uniform Code of Military Justice, and create a statutory exemption to the Geneva requirement, to allow the tribunals as Bush had set them up, but that has to come from Congress, not from Bush.
0 Replies
 
oralloy
 
  1  
Reply Thu 29 Jun, 2006 10:55 pm
JustanObserver wrote:
The Bush "double standard" bit him on the ass this time.


There is no double standard. The trouble came from Bush deciding to usurp the legislature and write his own laws governing the military tribunals.



JustanObserver wrote:
First he says that the prisoners weren't bound by the Geneva Convention (because they weren't military prisoners),


Not quite. They are not bound by the Third Geneva Convention (because they weren't lawful combatants).



JustanObserver wrote:
then he created a new classification for them..."enemy combatants"


"Enemy combatant" is not a new classification. It refers to anyone who fights for the other side.

"Unlawful combatant" is not a new classification either. It refers to those combatants who are not a part of a fighting force which follows the laws of war.



JustanObserver wrote:
and argued that they could not be tried in civilian courts, yet he goes and tries them by a military tribunal.


Yes. Enemy soldiers are tried in military tribunals, not civilian courts.
0 Replies
 
Ticomaya
 
  1  
Reply Fri 30 Jun, 2006 03:14 pm
Quote:
June 30, 2006
Hamdan v. Rumsfeld: Common Sense at War
By Ronald A. Cass


Liberty may have been the traditional casualty of war, but common sense is its new colleague. The Supreme Court, trying hard on the anniversary of last term's Kelo decision to find a suitable sequel, performed a rare triple loop in Hamdan v. Rumsfeld. It found jurisdiction in the face of a statute directly taking jurisdiction away from the Court. It second-guessed the President on the need for particular security features in trials of suspected al Qaeda terrorists. And it gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law. If that weren't enough, the (left, lefter, and far left) turns were executed in the course of giving a court victory to Osama bin Laden's driver. What a perfect way to end the term!

The case challenged the Bush Administration's plan to use military tribunals to try Guantanamo detainees as enemy combatants who are neither within the criminal law and due process protections of the U.S. Constitution nor within the protections afforded prisoners of war by the Geneva Conventions. The Administration has been assiduously trying to prevent al Qaeda terrorists from learning what it knows and doesn't know about their operations - an effort opposed by The New York Times, the left side of the Democratic Party, and most of France. Its plans for trial by military commission and its detention at Guantanamo of al Qaeda suspects captured outside the United States are part and parcel of that effort.

The five-justice majority of the Supreme Court that decided the Hamdan case yesterday showed great interest in demonstrating their commitment to upholding constitutional protections and protecting international human rights, both admirable instincts in many settings. They showed less appreciation for the fact that Americans are threatened, and thousands of innocent Americans were killed by brutal thugs - the sort who behead civilians, film it as sport, and post the video on the Internet. And the justices showed no appreciation for the fact that Congress and the President might well know more than they do about the security needs of the United States.

Of course, the justices wrote a careful, precedent-laden, critically analyzed decision, well within the bounds of ordinary judicial craftsmanship - just as they did in Kelo. The proper criticism of their decision is not that it is politically inspired, not that it boldly ignores the law, and not that it is a decision that is utterly without support (though all these critiques may well come from the right). Instead, the proper criticism is that the decision is simply wrong, just as Kelo was, and will have consequences that no sensible American should applaud.

The first misstep was in finding jurisdiction at all. When Congress passed the Detainee Treatment Act of 2005, it included a provision saying that "no court, justice, or judge" has jurisdiction to hear applications for habeas corpus from any prisoner detained at Guantanamo. The Act also provides, in another provision, that pending challenges to decisions of military commissions on matters such as the detainee's status could not be heard except by the U.S. Court of Appeals for the D.C. Circuit.

The five-justice majority - taking a page from the two-plus-two-equals-five school of new math - read the two provisions together and concluded that it could hear a pending habeas petition. Small wonder Justice Scalia, in dissent, seemed almost apoplectic over the majority's reasoning. The only sad part is that his dissent didn't come complete with the appropriate gestures.

The justices clearly had something big to say on the military tribunal issue and didn't want to have Congress pull the rug out from under them. Fortunately, what they actually said wasn't as big as the headlines suggested. They didn't say anything about the legality of the detentions at Guantanamo, or the treatment of the prisoners, or tell the President he had no authority to set up military commissions no matter what.

But they did take shots at the President, the Congress, and common sense in an opinion that has more twists and turns than one of John Kerry's speeches - or a run down the slopes of Davos.

Under the law passed by Congress in 2005, the President is authorized to alter the design of military tribunals if he deems it impracticable to offer the procedures ordinarily applied in other trials. That is exactly what the President did here.

The President clearly said that Guantanamo terror suspects could not be given the same protections as citizens charged with criminal acts. And even Justice Stevens said the Court should defer to the President on that.

But, said the Court, the President did not make "a similar official determination that it is impractical to apply the usual rules for courts-martial." Actually, he did. But he didn't utter the magic incantation, the Harry Potter phrase that would make the tribunals fly.

As Justice Stevens observed "the only reason offered in support of that determination is the danger posed by international terrorism." Those whose loved ones died at the hands of al Qaeda terrorists may be surprised that isn't enough - as might anyone who understands that these are trials for terrorism, not trespassing. But the justices said it is "not evident to us why" concerns over terrorism justify changing the rules.

So we come to the last loop in the Court's triple jump - its reliance on international common law. The Court, interpreting the requirements of federal law, makes a critical observation, one no one would have expected a few short years ago: the military tribunals do not provide the sort of procedures "recognized as indispensable by civilized peoples."

There you have it. We can now turn to international common law to find out what our laws require. Who better than the Iraqis and North Koreans, Khaddafi's Libya, Mugabe's Zimbabwe and Chavez's Venezuela to tell us what our laws command? That's the Court's reading of the law. To make matters worse, by making Common Article 3 of the Geneva Conventions (the linchpin of this analysis) both legally enforceable and dependent on international common law, the Court has opened a door to criminal liability for American citizens, soldiers, and government officials on terms we cannot predict and would never approve.

The President may not have made perfect choices on the procedures used for these trials. He may not have perfectly balanced concerns over fair process with concerns over national security. But the President, not the Court, has expertise on this subject.

Justice Breyer's concurrence says that Congress didn't give the President a blank check to fight the war on terror. But the Constitution also doesn't give the justices a blank check to write the law. It especially doesn't give them a check drawn on a foreign bank.

Yesterday's decision may bring a smile to the faces of Bush-bashers. It should be as fleeting as the smiles with which developers greeted the justices' creativity in Kelo. Let's hope it's as easily corrected.
0 Replies
 
revel
 
  1  
Reply Fri 30 Jun, 2006 03:37 pm
Rolling Eyes
0 Replies
 
Finn dAbuzz
 
  1  
Reply Fri 30 Jun, 2006 11:38 pm
Excluding the fact that it is a reputation of a Bush policy position, why is this a good decision?
0 Replies
 
dlowan
 
  1  
Reply Fri 30 Jun, 2006 11:54 pm
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...
0 Replies
 
Finn dAbuzz
 
  1  
Reply Sat 1 Jul, 2006 12:01 am
dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...


Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.
0 Replies
 
Wilso
 
  1  
Reply Sat 1 Jul, 2006 12:16 am
Finn d'Abuzz wrote:
dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...


Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.


If you can't see it already, then explaining it would be a waste of time.
0 Replies
 
okie
 
  1  
Reply Sat 1 Jul, 2006 12:23 am
So what happens now, do we need a search warrant to arrest a terrorist on the battlefield? Does he skate if we don't read him his rights and allow him access to a lawyer right away?

Look for more would be terrorists executed on the spot.

I have not much clue about what happens now, but I have a funny feeling we need to remind everybody of the "law of unintended consequences." Thats what happens with judges given to naivety.
0 Replies
 
Wilso
 
  1  
Reply Sat 1 Jul, 2006 12:28 am
What happens now? I suspect, absolutely nothing.
0 Replies
 
Finn dAbuzz
 
  1  
Reply Sat 1 Jul, 2006 12:31 am
Wilso wrote:
Finn d'Abuzz wrote:
dlowan wrote:
Er....adherence to rule of law, adherence to principles advocated to by US when it comes to others, adherence to reasonable principles re human rights, justice, denial of untoward claims to power by president....those would be a few beginning reasons why it is a good decision...


Er...spare us your stylistic crap.

You've listed the common rhetoric, now explain the underlying value.


If you can't see it already, then explaining it would be a waste of time.


So's your Old Man!

It amazes me that there is no end to the instances of idiots venturing the argument: If you don't understand why I am right, there is no reason explaining why I am right.

Wilso, explainig your idiocy may well be a waste of your time, for the simple reason that your idiocy cannot be explained, but if you have any faith, what-so-ever, in your idiocy, it seems that you would be inclined to, if not capable, of explaining it.

Of course you have the right to flee with your tail between your legs.

Yelp! Yelp!
0 Replies
 
okie
 
  1  
Reply Sat 1 Jul, 2006 12:34 am
It seems a bit insulting to think terrorists now have all the rights of an American citizen. Give me a break.

If anyone thought we had too many lawyers now, I would say Katie bar the door, we will probably be overrun with them. There may not be enough to defend all the terrorists, or courtrooms to try them in for that matter. Talk about a drag on our court system. We may not have seen anything yet if this is headin where it looks like it is.
0 Replies
 
 

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