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Author Topic: USian Supreme Court rules against Bush on legality of military tribunals
Jimmy Brogan
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posted 29 June 2006 08:26 AM      Profile for Jimmy Brogan   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
USian Supreme Court rules against Bush on legality of military tribunals

quote:

Jun. 29, 2006. 11:21 AM
GINA HOLLAND
ASSOCIATED PRESS

WASHINGTON ? The U.S. Supreme Court ruled Thursday that President George W. Bush over-stepped his authority in creating military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed tribunals were illegal under U.S. law and the Geneva Convention.

The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison camp at Guantanamo Bay, Cuba. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001.

Two years ago, the court rejected Bush?s claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers.

In this followup case, the justices focused solely on the issue of trials for some of the men, among them 19-year-old Canadian Omar Khadr, captured in Afghanistan in 2002 during the U.S.-led invasion.


[ 29 June 2006: Message edited by: Jimmy Brogan ]


From: The right choice - Iggy Thumbscrews for Liberal leader | Registered: Nov 2002  |  IP: Logged
obscurantist
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posted 29 June 2006 10:04 AM      Profile for obscurantist     Send New Private Message      Edit/Delete Post  Reply With Quote 
Interesting to note:
quote:
Thursday’s vote by the court was split 5-3, with moderate Justice Anthony Kennedy joining the court’s liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

From: an unweeded garden | Registered: Feb 2005  |  IP: Logged
jeff house
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posted 29 June 2006 12:07 PM      Profile for jeff house     Send New Private Message      Edit/Delete Post  Reply With Quote 
I did a quick read-through of the decision this afternoon.

The Court holds that the entire Guantanamo structure of special military tribunals is in violation of the Geneva Conventions.

It also holds that, while some of the Geneva Convention does not apply to Guantanamo detainees, the core of it does.

In other words, the people held at Guantanamo have a right to a trial which accords with fundamental procedural guarantees. They have been denied this since their detention in 2001.

This holding puts the recent suicides of three men at Guantanamo in high relief. They were political prisoners, held in violation of US and international law. So who is responsible for their deaths?


From: toronto | Registered: May 2001  |  IP: Logged
B.L. Zeebub LLD
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posted 29 June 2006 12:33 PM      Profile for B.L. Zeebub LLD     Send New Private Message      Edit/Delete Post  Reply With Quote 
According to international legal precedent, probably no one. If it were a case of intentional or unintentional killing everyone from the immediate watch commander at Guantanamo all the way up the ladder to the POTUS could be held responsible if it could be shown that they had specific knowledge of the activities there and either encouraged them or failed to put an end to them. But with a suicide, you have the problem of the subjective intent of the people who killed themselves. Obviously, their mens rea is nigh on impossible to ascertain, giving anyone acting in defense of their captors a big ol' hunk of doubt to work with. This is why for decades those who died inside the prisons of Apartheid were listed as "suicides" and "accidental deaths"

I suspect we won't see anyone charged or otherwise legally (poltically is another question) imperiled by this decision. In the end, it will be up to the same executive branch and military chiefs who organised and perpetuated the alleged crime to do anything about it. I'm not sure that a Republican dominated Congress and Senate have the teeth to do much about things happening on Cuban soil. Not without a massive public outcry, that is. But to take care of that, there will soon be launched a massive optics campaign to perpetuate the image of Camp X-ray as humane, neccessary to the war on terror, and simply full of big bad Muslims who are very, very scary and don't deserve our pity.

It was the executive branch that came up with the entirely bogus neologism "unlawful combattant" that put these men into the position they are in at the moment. And they did this likely having full knowledge of the (ill)legality of their activities. Essentially this ruling simply makes them "lawful combattants" again, but who will enforce the ruling is the big question.

[ 29 June 2006: Message edited by: B.L. Zeebub LLD ]


From: A Devil of an Advocate | Registered: Sep 2004  |  IP: Logged
Jimmy Brogan
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posted 29 June 2006 12:44 PM      Profile for Jimmy Brogan   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Yeah, how many divisions does the Supreme Court have?
From: The right choice - Iggy Thumbscrews for Liberal leader | Registered: Nov 2002  |  IP: Logged
jeff house
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posted 29 June 2006 12:56 PM      Profile for jeff house     Send New Private Message      Edit/Delete Post  Reply With Quote 
I had asked who is "responsible" for the deaths of men held at Guantanamo in violation of US and international law.

The legal opinion offered above, says that "probably no one" is responsible, at least in strict legal terms.

But to me, the question of who is responsible goes beyond who could successfully be prosecuted for murder. someone was responsible for the set of illegal conditions which made suicide much more likely. Who are those people?


From: toronto | Registered: May 2001  |  IP: Logged
sgm
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posted 29 June 2006 01:47 PM      Profile for sgm     Send New Private Message      Edit/Delete Post  Reply With Quote 
We'd probably have to include Justice Department memo-writers John Yoo and Alberto Gonzalez in the list of those responsible, though officials in the Defense Department joined in the effort to violate US and international law as well:
quote:
Toward the end of 2002, orders came down the political chain at DOD that the Geneva Conventions were to be reinterpreted to allow tougher methods of interrogation. "There was almost a revolt" by the service judge advocates general, or JAGs, the top military lawyers who had originally allied with Powell against the new rules, says a knowledgeable source. The JAGs, including the lawyers in the office of the chairman of the Joint Chiefs, Gen. Richard Myers, fought their civilian bosses for months—but finally lost. In April 2003, new and tougher interrogation techniques were approved. Covertly, though, the JAGs made a final effort. They went to see Scott Horton, a specialist in international human-rights law and a major player in the New York City Bar Association's human-rights work. The JAGs told Horton they could only talk obliquely about practices that were classified. But they said the U.S. military's 50-year history of observing the demands of the Geneva Conventions was now being overturned. "There is a calculated effort to create an atmosphere of legal ambiguity" about how the conventions should be interpreted and applied, they told Horton. And the prime movers in this effort, they told him, were DOD Under Secretary for Policy Douglas Feith and DOD general counsel William Haynes. There was, they warned, "a real risk of a disaster" for U.S. interests.

The approach at Gitmo soon reflected these changes. Under the leadership of an aggressive, self-assured major general named Geoffrey Miller, a new set of interrogation rules became doctrine. Ultimately what was developed at Gitmo was a "72-point matrix for stress and duress," which laid out types of coercion and the escalating levels at which they could be applied. These included the use of harsh heat or cold; —withholding food; hooding for days at a time; naked isolation in cold, dark cells for more than 30 days, and threatening (but not biting) by dogs. It also permitted limited use of "stress positions" designed to subject detainees to rising levels of pain.


Link.

I doubt the above-mentioned Feith and Haynes were acting entirely on their own initiative either: someone should be looking at Don Rumsfeld.


From: I have welcomed the dawn from the fields of Saskatchewan | Registered: Apr 2004  |  IP: Logged
jeff house
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posted 02 July 2006 01:14 PM      Profile for jeff house     Send New Private Message      Edit/Delete Post  Reply With Quote 
The Hamdan decision has interesting implications.

For one thing, it says that violation of the Geneva Accords is a crime according to US law, and can therefore be punished in a US court.

Typically, those who plan and orchestrate violations of the criminal law are themselves guilty of conspiracy.

Here is a solid article by a law professor whose analysis is hard to refute:
brooks legal article

quote:
But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.


[ 02 July 2006: Message edited by: jeff house ]


From: toronto | Registered: May 2001  |  IP: Logged
remind
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posted 02 July 2006 03:40 PM      Profile for remind     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by jeff house:
the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.

This was stated by many legal experts way back when it was first undertaken. Which is why the Bush et al will have to win at whatever it is they are doing, I.e. global control, because to lose means they are put on trial as war criminals. In fact, have not charges already been made upon several including the President?


From: "watching the tide roll away" | Registered: Jun 2004  |  IP: Logged
jeff house
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posted 02 July 2006 04:24 PM      Profile for jeff house     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Both the majority and concurrence cite 18 U.S.C. § 2241, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying persons under the president's military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2241.

Furthermore, the majority stresses that the Geneva Conventions 'do extend liability for substantive war crimes to those who "orde[r]' their commission" and "this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility' on military commanders for acts of their subordinates." The Court’s emphasis on the liability that attaches to "orders" is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order.



http://time.blogs.com/daily_dish/

From: toronto | Registered: May 2001  |  IP: Logged

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