A Supreme Court Hamdan Guide

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

The crux of the decision:

The Military commision regimen is unauthorized as it currently stands.

Important but perhaps missed facts:

-There were actually two major elements to the ruling. The first concerned whether the Court could even hear the case. This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners. Here is part of the language for the Act:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

The majority opinion argued the language of the statue was too vague so they could in fact rule on Hamdan's case. Justice Scalia's scathing dissent was contrary this view. The second element concerned the commission system which the Court ruled is presently unauthorized. The main points as presented by Justice Steven's majority opinion were: the present commision format is not consistent with the Uniform Code of Military Justice,* and violates the relevant Geneva Conventions**: notably Article 3 which is found in each Convention. This is what most commentary has focused on, but it is not the key element of ruling.

-Justice Kennedy wrote a concurring opinion. A concurring opinion is where a Justice, has sided with the majority, but the rationale that led to his siding is distinct. Justice Kennedy's opinion is the narrower opinion and as such is where the teeth of the ruling are found. Why? Because on practical grounds when a new challenge is brought, the Government merely has to met the standards set by Kennedy to pull him, by his own opinion, to their side and thus effectively overturn the Hamdan ruling. Recall, four Justices (including Chief Justice Roberts in the D.C. Circuit) have already affirm the Administration's position. Justice Kennedy's opinion turns on the notion of procedural fairness specifically in regards to the military commissions and courts martial as dictated by Congress and that the commissions lacked Congressional oversight. To whit he wrote:

"In sum, as presently structured Hamdan's military commission exceeds the bounds Congress has placed on the President's authority in...the UCMJ. Because Congress has placed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws."

Legal Fall Out:

In this ruling the Judiciary has stepped into an area where both the Congress and the Executive have already staked out ground. By side stepping the will of the Congress in its 2005 Detainee Treatment Act. Congress is likely to pass a 2006 Detainee Treatment Act with even more explicit language thereby stripping the Court completely of jurisdiction. The other possibility is based on Kennedy's opinion, the Congress simply has to pass a statute whereby UCMJ rules on military commissions apply to Guantanamo detainees.

Political Fall Out:

This is the silver lining in the ruling. The GOP can use this ruling as an illustration why constructionist judges are needed on the bench as opposed to judges whose political agenda determines their ruling on the law. This is a hot issue in GOP circles as noted by the coup that brought Justice Alito to being a nominee. An impassioned use of this poor ruling could incite enough base support to insure Congressional control through to 08.

Conclusion:

If court rulings paralleled the weather this is a tropical storm, but not a hurricane: bad but not devastating.


*Regarding the Uniform Code of Military Justice

Spoiler Alert, click show to read: 

This is a key extract from Justice Stevens opinion and the response from Justice Thomas:

Jusitce Stevens:

"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial."

Justice Thomas' dissent:

"Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.

Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).

The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement."

**Regarding the Geneva Conventions:

Spoiler Alert, click show to read: 

Justice Stevens:

"While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).

The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here."

Justice Alito's dissent:

"I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”

If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly."

.....

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision. Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees. This directly violates the UCMJ. That is the crux of the decision. To follow the law, the courts must either be constituted with regard to international law, civil law or military law (in the precise form of the UCMJ). The militray tribunals, as previously set up, followed none of those three. The decision makes it very clear that insufficient reason was given to ignore the UCMJ. Thomas tries to toss out a red herring about there being different ways in which military courts are "constituted" for the different branches and the different types of militray courts. And yet, he completely ignores the central issue which is that all of those courts, varied as they are, must still abide by certain standards in regards to the rights of the defendant and certain basic procedures, such as relevance and admissability.

But, nice try, Pindar. I'll give you an E for effort. :balloon2:

To reword it for you in a much simpler form:

Scalia, Thomas and scAlito dissented. It must, therefore, be a reasonable conclusion for the court to make. :laugh4:

Edit: and see, GC? We don't disagree on everything. :wink:

Interesting stuff Pindar. The decision has recieved scant little analysis from what I've seen that goes beyond the headlines.

Im still not totally sure how I feel about the "rightness" of the ruling. But in the real sense, I think it's probably going to work out for the best since Congress will spell out in no certain terms what it's intentions were.

Quote:

---

Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees.

---

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

Quote:

---

Originally Posted by Crazed Rabbit

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

---

Uniform Code of Military Justice
Title 10, Subtitle A, Part II, Chapter 47
Subchapter VII, § 839 (b)

"(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge."

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court. And above is the applicable section on military court proceedings, specifying that all proceedings other than the deliberations or vote must be conducted in the presence of the accused. End of story.

As for the bit about racketeering cases in which the accused weren't allowed to be present at their own trial, I'm going to need to see some proof. The SCOTUS has ruled time and again that a defendant has the right to be present at his or her own trial and may only be absent under a very limited set of conditions, such as voluntarily waiving that right, or being removed for being disruptive. That's it. The possibility that the defendant may hear some secret bit of evidence against him or her is not among those exceptions.

U.S. CodeTitle 18, Appendix - Federal Rules of Criminal Procedure, Rule 43. Not that the SCOTUS rulings with which this rule applies are listed at the bottom.

Sorry, Crazed Rabbit, not going to fly unless you show me proof that I'm mistaken. If so, I'll withdraw my statement about racketeering cases you've claimed. However, the recent SCOTUS ruling and the UCMJ still stand.

Quote:

---

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court.

---

No, they made it clear that they- who have no experience in such matters, or when the situation warranted such measures- thought that the situation did not warrant military commissions. In short, they exerted authority to determine what they have no knowledge to determine. There is a very clear reason - we are fighting terrorists who seek to destroy and kill us. Thus, it is important to protect national secrets and security.

Crazed Rabbit

Burn the U.S. Constitution! The terrorists might use it against us!

Let's hear the opinions of some real conservatives on the issue, shall we, CR?

Former Rep. Dick Armey, when he was House Majority Leader and Chair of the House Select Committee on Homeland Security, (from "Armey: Justice 'Out of Control'" USA TODAY, 10/16/2002)

"I told the President I thought his Justice Department was out of control. Are we going to save ourselves from international terrorism in order to deny the fundamental liberties we protect to ourselves?? It doesn't make sense to me."

Dick Armey later joined with the ACLU in a media campaign to prevent passage of the Patriot Act II.

Or better yet how about, David Keene, Chairman of the American Conservative Union (from "Ashcroft: Good Intentions on a Bad Road" The Hill, 7/31/2002)

"The Bush administration argues convincingly that roving wiretaps, reading people's e-mail, putting video cameras on every corner and perusing their library habits will make it easier to catch terrorists before they act. The problem is that once all this is in place, we will no longer be living in the same country we lived in prior to Sept. 11."

How about that terrible liberal, Bob Barr, former Republican member of Congress (from "Patriot Act divides Bush loyalists," Washington Times, 4/5/2004)

"The Fourth Amendment is a nuisance to the administration, but the amendment protects citizens and legal immigrants from the government's monitoring them whenever it wants, without good cause -- and if that happens, it's the end of personal liberty."

"I don't care if there were no examples so far. We can't say we'll let government have these unconstitutional powers in the Patriot Act because they will never use them. Besides, who knows how many times the government has used them? They're secret searches."

And there's, Larry Pratt, Executive Director, Gun Owners of America (from Coalition for Constitutional Liberties Weekly Update, Free Congress Foundations, 2/27/2004)

"Anytime the government is in a conflict, they see it as an opportunity to aggrandize themselves and run roughshod over the Constitution"

"More laws are being made making things illegal. All of us stand to be in violation of some law."

"Farmers [including some who were wielding guns] participated in civil disobedience at the site of the main water valve. [Under the PATRIOT Act,] The Klamath farmers would have been a terrorist organization."

Maybe that darn liberal Newt Gingrich has something to say about the issue of giving up our freedoms to be safe? Let's see!

Newt Gingrich, the former speaker of the House ( from "The Policies of War: Refocus the mission," San Francisco Chronicle, 11/11/03)

"Recent reports, including one from the General Accounting Office, however indicate that the Patriot Act has been employed in investigations unconnected to terrorism or national security.

In our battle against those that detest our free and prosperous society, we cannot sacrifice any of the pillars our nation stands upon, namely respect for the Constitution and the rule of law. Our enemies in the war against terrorism abuse the Islamic law known as the Sharia that they claim to value. It is perversely used as justification for their horrific and wanton acts of violence.

We must demonstrate to the world that America is the best example of what a solid Constitution with properly enforced laws can bring to those who desire freedom and safety. If we become hypocrites about our own legal system, how can we sell it abroad or question legal systems different than our own?"

I wonder if all of these eminent real conservatives would consider your arguments to be conservative-based? :wink:

Quote:

---

Originally Posted by Gelatinous Cube

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

---

Clears throat...says who?

Quote:

---

Originally Posted by Aenlic

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision.

---

Hello,

You have confused a part for the whole. What I put forward is the basic rationale for the poor decision which includes your reference.

Quote:

---

But, nice try, Pindar. I'll give you an E for effort. :balloon2:

---

Thanks, does it come in blue?

Well, I certainly know little about the jurisdical details. But what strikes me is this:

Quote:

---

This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners.

---

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

Very nice, GC.

Sadly, the only Congressman I know of who keeps a copy of (or can even be proven as having read) the Constitution is Senator Robert Byrd of West Virginia; and he appears to use his mostly to protect his ability to bring massive amounts of pork home to his constituents. And we aren't talking canned Spam here. :dizzy2:

Quote:

---

If you're so damned sure they're guilty (and granted, I'm sure most of them are), you should have faith in the system to deal with them properly.

---

They were going to be tried. I have faith in the system, but not in what the terrorists would do with info the prosecution presented.

And Cube, here's the part of the Constitution that comes right after that:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Quote:

---

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds. This was one such time.

---

I seem to remember a quote from one of the Founders that the Judiciary was the weakest branch, because they were not given such authority to decide the constitutionality of laws.

Quote:

---

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing?

---

I believe they established a seperate court for such procedings- they did not remove people from judicative authority.

Crazed Rabbit

Quote:

---

Originally Posted by Pindar

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

---

Sorry, but the fact that Scalito and Thomas voted against the decision pretty much ensures it was the right one. Just a few of Scalia's 'greatest hits':

On religious pluralism and the separation of Church and State:
"With respect to public acknowledgment of religious belief," Scalia wrote, "it is entirely clear from our nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

On displaying the Ten Commandments and government endorsing religion:
"You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are. And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds."

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

They are not citizens of the US. We most certianly are not going to give Osama a 12 person jury in New York when we catch him.

Quote:

---

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

---

Those are not relevant, unless you want to get into a match of which judge is less constitutional. I don't think you'd want to do that.

And you saying that bending US law and twisting the meaning of international law is what justices are supposed to do?

Crazed Rabbit

Why not give him a jury?

It's an American thing, Papewaio. Goes back to the Wild West and vigilante justice. It has large dollops of Yeehaw and a generous portion of "Badges? We don't need no stinking badges!" combined with that lovable effect most clearly demonstrated in the fearful look on the faces of the local bowlegged sheep. :grin:

Quote:

---

Originally Posted by A.Saturnus

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

---

The Supreme Court is unelected. The Congress is elected. Under the U.S. Constitution the Congress can determine Court jurisdiction. The trifold separation of powers does not mean each component is equal. Rather, it is tiered: the Legislative Branch is number one as simply demonstrated by the above noted power and the power to impeach the Executive. The Executive is number two in being Commander in Chief of the military. The Judiciary is three in interpreting the law.

Quote:

---

Originally Posted by Gelatinous Cube

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

Quote:

---

Originally Posted by Me

says who?

Quote:

---

Originally Posted by Cube

I knew that copy of the constitution in the back of "The Federalist Papers" would come in handy one of these days...

The United States Constitution, Article III, Section 2:

The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

---

---

---

This doesn't answer my question. Again, what authority does the Supreme Court have to "step in when the Legislature and the Executive over-step their bounds"?

Quote:

---

Originally Posted by Papewaio

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

---

b) is incorrect.

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

Quote:

---

Originally Posted by Gelatinous Cube

Alright, so I generalized. My quote nevertheless shows that the Judiciary was in the right in this instance.

---

No, your comment was/is incorrect.
The quote does not say the Judiciary was in the right.
The quote doesn't relate to the topic. It does not speak to the Judiciary having oversight over the Legislature or the Executive.

In regards to the 2005 Detainee Detention Act, the argument the Majority Opinion put forward to justify their being able to even speak to the case was not that they couldn't be bound by the Congress (they of course recognized they could) but that the 2005 Act's language was too vague in that it didn't specify pending cases. Hamdan was a pending case, so they held it was permissible. This is of course contorted reasoning as the act is clear in its language and was passed with the Congressional Record showing Congressmen were well aware of the pending cases and that they were included.

The stupidity of the opinion may very well mean the Congress will pass a 06 version which would constitute a SCOTUS b*tch slap. My comments on the potential political fallout via-a-vis the Fall Elections are also apt.

Quote:

---

Originally Posted by Pindar

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

---

Not according to the Geneva Conventions, which the US has signed. And not, moreover, according to your own Supreme Court.

Quote:

---

Originally Posted by Gelatinous Cube

Feh. Well, I don't pretend to be a law expert. Suffice it to say that the sweeping powers that the Executive has for this indefinately long "War" are over-the-top. Everything is too vague, and too open to interpretation. We need swift and decisive legislation defining everything in a clear-cut fashion--and it needs to be leaning towards curbing the executive, not empowering it.

---

A marked contrast: things then are reduced to private sentiments.

Quote:

---

Originally Posted by Hurin_Rules

Not according to the Geneva Conventions, which the US has signed. And not, moreover, according to your own Supreme Court.

---

This is incorrect. The Geneva Conventions do not say detainees are criminals or charged with a crime, neither has SCOTUS.

Quote:

---

Originally Posted by Pindar

This is incorrect. The Geneva Conventions do not say detainees are criminals or charged with a crime, neither has SCOTUS.

---

You're misunderstanding my statement. You said tribunals/commissions are completely at the whim of the executive and there is no necessity for them. In fact, the Geneva Conventions state tribunals are a necessity, and SCOTUS has ruled that the executive alone cannot make up its own rules for them.

Quote:

---

Originally Posted by Hurin_Rules

You're misunderstanding my statement. You said tribunals/commissions are completely at the whim of the executive and there is no necessity for them. In fact, the Geneva Conventions state tribunals are a necessity, and SCOTUS has ruled that the executive alone cannot make up its own rules for them.

---

I see. You should be clearer in your points then. Where do the Geneva Conventions say state tribunals are a necessity? I did not say the Executive alone can make up its own rules. No one argued that idea.

Quote:

---

Originally Posted by Gelatinous Cube

A private sentiment that any historian worth his salt would tell you is within the bounds of the fundamentals of the constitution. No Branch should have a blank check like the Executive is getting out of this "War on Terror."

---

Any historian worth his salt would say: "Suffice it to say that the sweeping powers that the Executive has for this indefinately long "War" are over-the-top. Everything is too vague, and too open to interpretation"? Is that a legal opinion? If its not, and we assume all salt worthy historians would say this, why should we care?

Other than salt worthy Hurin of course.

Quote:

---

Originally Posted by Gelatinous Cube

You're a lawyer, aren't you?

---

Yes, and I surf.

Quote:

---

What's your legal opinion on the power that the Executive has been able to gather towards itself during this War on Terror?

---

What are you referring to? Be specific.

Quote:

---

Are not the ramifications of these open-ended policies dangerous for Americans?

---

What open-ended policies are you thinking of?

Quote:

---

Originally Posted by Aenlic

It's an American thing, Papewaio. Goes back to the Wild West and vigilante justice. It has large dollops of Yeehaw and a generous portion of "Badges? We don't need no stinking badges!" combined with that lovable effect most clearly demonstrated in the fearful look on the faces of the local bowlegged sheep. :grin:

---

Ahh thats why I had an instinctive dislike of the attitude, being a Kiwi I support the sheep. :laugh4:

Quote:

---

Originally Posted by Pindar

The Supreme Court is unelected. The Congress is elected. Under the U.S. Constitution the Congress can determine Court jurisdiction. The trifold separation of powers does not mean each component is equal. Rather, it is tiered: the Legislative Branch is number one as simply demonstrated by the above noted power and the power to impeach the Executive. The Executive is number two in being Commander in Chief of the military. The Judiciary is three in interpreting the law.

---

Hmm, I must say this is entirely not my understanding of democracy.

Quote:

---

Originally Posted by Pindar

b) is incorrect.

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

---

Detainees of the War in Afghanistan. The War in Afghanistan has already finished so why aren't they sent home?

Because they (the Bushista regime) aren't defining the War as being against a particular country. They're defining it as a "War on Terror" which could, and probably will, last at least generations and possibly forever. That way they don't ever have to release the "enemy combatants" - ever. :dizzy2:

Surely the way to win a war on terror is to minimise the fear.

After watching the trials of Saddam I think it has normalised him from a bogey man to a ranting old man, like a senile granddad with a fondness for the old times.

I can imagine putting on trial all the 'enemy combatants' and over years the trials going on and on. To the point that they would become trival parts of the background noise.

"Hey Stan, Did you see GuanXT475 on trial last night?"
"What, the one that looks like me Uncle or your Brother?"
"The one that looks like your Uncle. Man he is a nutter, totally incoherent."
"Yes that's my Uncle, so how was the prisoner?"
"Fairly lucid, looked like a person looking for a cause. A bit stupid but definitly not some sinister all knowing force. Just a regular dickhead trying to spread his pain to others."
"So a cross between my Uncle and your mother and law then."
"Speaking of trials and juries, how did your speeding ticket go in court?"
"Now that was something to worry about compared with those trials in the G' it was something I'm not used to. You know the worries you get when you don't have the facts and how little fears get magnified but they just disappear under the light of day. Well it was just like that when I went to court..."

Quote:

---

Originally Posted by Papewaio

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

---

Pappy:

That's the single best counter-argument I've heard on this. Well smote.

Quote:

---

Originally Posted by Gelatinous Cube

CIA Prisons in foreign countries.

---

I think the law should be enforced. I'm referring to the Espionage Act. This dates from 1917 so chronologically I'm not sure how this would fit into your: "power that the Executive has been able to gather towards itself". Moreover, given the Act was passed by the Congress its not really Executive Branch exclusive.

Quote:

---

The whole NSA Wiretapping thing.

---

The "whole NSA wiretapping thing" falls under the purview of the Executive. This is seen in Article II of the Constitution. It also has a long and consistent line of SCOTUS rulings that back the power of the Executive in this regard. This goes back at least to 1850 with Fleming v. Page and then moves forward consistently to direct cases of warrantless wire tapping under the FISA Appellate Court in the 2002 Sealed Case No. 02-001. Legally the program is mundane.

Quote:

---

The various violations of the 4th(?) amendment that the Patriot Act allows for.

---

The Patriot Act is another case of Congressional action that has actually been subject to Congressional review and renewal so I don't know how this fits into power the Executive has gathered towards itself either.

Quote:

---

Originally Posted by A.Saturnus

Hmm, I must say this is entirely not my understanding of democracy.

---

Perhaps not, but Pindar is providing a good mini-summary of the original intent of the Constitution of the United States. The Legislature was definitely pre-eminent, and the House of Representatives given primacy of the purse. The Executive was to execute the laws, oversee new ones, act as commander in chief and serve as the focal point of interaction with foreign states. The Judiciary was to oversee the rule of law arising from the actions of the previous two. The SCOTUS's role as "final arbiter" is an arrogation that has become institutionalized through practice and popular acquiesence -- but its not in the original blue-print.

Quote:

---

Originally Posted by A.Saturnus

Hmm, I must say this is entirely not my understanding of democracy.

---

Does this mean you think an unelected Branch of the Government should be equal in power with elected Branches?

Quote:

---

Originally Posted by Papewaio

Detainees of the War in Afghanistan. The War in Afghanistan has already finished so why aren't they sent home?

---

Legally there is no distinctive War in Afghanistan that is a vernacular based on geography. I will note however, that most in not all Afghanis have been returned to the Legitimate Government in Afghanistan. Hamdan (the fellow the SCOTUS case focuses on) is Yemeni.

Quote:

---

Originally Posted by Papewaio

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

Quote:

---

Originally Posted by Seamus Fermanagh

Pappy:

That's the single best counter-argument I've heard on this. Well smote.

---

---

I would agree except that b) is incorrect and the Declaration of Independence doesn't refer to trial by jury.

The list of detainees finally released last month after a FOIA request is an interesting read. You can find several copies on the web, the easiest one to view is on Wikipedia http://en.wikipedia.org/wiki/List_of_Guantanamo_Bay_detainees or you can sort through the name in the official DOD list.

Interesting info in those lists. People determined to to be innocent at the CSRT review and yet are still in custody. People not picked up on the "battlefield" at all, as Bush claims, but in Bosnia. People whose only charge and reason for being detained appears to be that they were wearing cheap Casio F91W watches, which were the kind used in several bombings. (Dang, I guess I better check with Homeland Security before I buy a new alarm clock, hmm?). There is one detainee who was actually in a Taliban jail at the time we invaded for writing satirical essays about the Taliban; he apparently writes satirical essays about the US as well - and so landed in Guantanamo as an "enemy combatant" from Afghanistan. Took him 3 years in detention in Gitmo before he was finally able to convince his "captors" of his innocence and secure his release. (His details in this Newsday article). Then there's Chinese citizen we arrested who has since been determined to be innocent; but we want to send him back to China even though we didn't find him there, and he says he'll be tortured. He even asked for political asylum in the U.S. and was refused. No habeus corpus either. Basically he can rot in Gitmo or agree to go get tortured in China.

Fun place. Real standup example of the Rule of Law and the American Way. Yup.

Quote:

---

Originally Posted by Pindar

I would agree except that b) is incorrect and the Declaration of Independence doesn't refer to trial by jury.

---

Actually it refers to it as one of the many reasons that it was declared as opposed to what the declaration states. It was part of the why of the declaration while the consitution would be the how part of the country.

Quote:

---

Originally Posted by Pindar

Does this mean you think an unelected Branch of the Government should be equal in power with elected Branches?

---

The idea is that because judges are not selected by popular vote and appointed for life, they're effectively above politics.

Doesn't seem to have worked for the US, though.

Quote:

---

Originally Posted by Pindar

Legally there is no distinctive War in Afghanistan that is a vernacular based on geography. I will note however, that most in not all Afghanis have been returned to the Legitimate Government in Afghanistan. Hamdan (the fellow the SCOTUS case focuses on) is Yemeni.

---

And what would you say about those Afghanis--nearly 100, by latest count--that haven't yet been returned?

Interesting that you're not willing to give the actual War in Afghanistan any real status, but the moment the executive declares a 'War on Terror' (but in which, of course, no prisoners will be given the status of 'Prisoners of War'), you defer to its pronunciation, and allow it to violate its own treaty obligations and the Geneva Conventions, apparently in perpetuity.

According to your interpretation, the government does indeed get a blank cheque-- but only for wars that aren't really wars.

Quote:

---

Originally Posted by Papewaio

Actually it refers to it as one of the many reasons that it was declared as opposed to what the declaration states. It was part of the why of the declaration while the consitution would be the how part of the country.

---

You're right. I went back and read over the Declaration. That means just b) was incorrect.

Quote:

---

Originally Posted by Kralizec

The idea is that because judges are not selected by popular vote and appointed for life, they're effectively above politics.

Doesn't seem to have worked for the US, though.

---

Quite right. Much of this is due to the Court's push for greater power via Judicial Review and political agendas that seek to circumvent the legislative process and impose their will on the body politic by other means: abortion or the more recent gay marriage would be examples.

Quote:

---

Originally Posted by Hurin_Rules

And what would you say about those Afghanis--nearly 100, by latest count--that haven't yet been returned?

---

I would say they haven't been returned.

Quote:

---

Interesting that you're not willing to give the actual War in Afghanistan any real status, but the moment the executive declares a 'War on Terror' (but in which, of course, no prisoners will be given the status of 'Prisoners of War'), you defer to its pronunciation, and allow it to violate its own treaty obligations and the Geneva Conventions, apparently in perpetuity.

---

The war in Afghanistan has real status. It is not a distinct conflict however. The Authorization of the Use of Force was not a singular declaration of war on Afghanistan.

Pindar:

Question. Absent a formal declaration of war (as opposed to the authroization to use force), what is the status of the prisoners at Gitmo? If they are listed as POW's but no war has been declared, doesn't that mean that they must be released? I'm a little murky on this, especially as to how it would stand before the law.

Quote:

---

Originally Posted by Pindar

Does this mean you think an unelected Branch of the Government should be equal in power with elected Branches?

---

Yes. If there is a hierarchy of powers, that is not really a seperation. Balance and control between the branches requires that one is not more powerful than others. The responsibility of some may be broader than that of others, as such that the elected branch has more functions than the unelected which needs to be specific in function. But the ability of one branch to control the other may not be infringed.

Quote:

---

Originally Posted by Seamus Fermanagh

Pindar:

Question. Absent a formal declaration of war (as opposed to the authroization to use force), what is the status of the prisoners at Gitmo? If they are listed as POW's but no war has been declared, doesn't that mean that they must be released? I'm a little murky on this, especially as to how it would stand before the law.

---

POW designation is not dependant on the declared martial status of the U.S., but the legal standing of the captured. The status of the prisoners at Gitmo falls between the traditional Geneva Conventions (GC) cracks. As you know, the GC are designed around the nation state model. Terrorists and similar guerilla groups don't meet those criteria. This is not new information. It has been recognized for some time. Back in the late Seventies there were moves to amend the GC with what was known as Protocol I that would provide legal standing (POW status) for terrorists and their ilk. The U.S. never signed this. When the Protocol was brought before the U.S. then President Reagan explicitly rejected Protocol I because he refused to give terrorists legal standing.* The status of the Gitmo prisoners then is typically referred to as one of the following: unlawful combatants, enemy combatants or simply detainees. Each is meant to demonstrate a distinction between the prisoners and legal combatants who would be POWs.

The Hamdan Decision notes the military commissions as presently constituted are unauthorized. It does not speak to or comment on any requirement to hold military commissions or the prisoners continued detention that could be maintained until the end of hostilities which in a long war scenario could be very long indeed. Does that help?


* From Reagan's message to the Senate Transmitting a Protocol to the GC (1987)

Spoiler Alert, click show to read: 

But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.'’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.

***

It is unfortunate that Protocol I must be rejected. We would have preferred to ratify such a convention, which as I said contains certain sound elements. But we cannot allow other nations of the world, however numerous, to impose upon us and our allies and friends an unacceptable and thoroughly distasteful price for joining a convention drawn to advance the laws of war. In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

***

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

(Protocol I has been adopted by most other nations)

Quote:

---

Originally Posted by A.Saturnus

Yes. If there is a hierarchy of powers, that is not really a seperation. Balance and control between the branches requires that one is not more powerful than others. The responsibility of some may be broader than that of others, as such that the elected branch has more functions than the unelected which needs to be specific in function. But the ability of one branch to control the other may not be infringed.

---

Interesting, your view is distinct from the U.S. model whose 230 year history indicates balance and control does not require parity. Personally, I don't think a unelected Branch can justify parity.

Under the U.S. Constitution each Branch has its own purview with inherent powers. For the Judiciary it is the following, from Article III:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

SCOTUS' appellate jurisdiction is subject to Congressional regulation.

The Legislative Branch is considered primary because it is elected and is not reducible to a single individual.

Quote:

---

Originally Posted by Pindar

POW designation is not dependant on the declared martial status of the U.S., but the legal standing of the captured. The status of the prisoners at Gitmo falls between the traditional Geneva Conventions (GC) cracks. As you know, the GC are designed around the nation state model. Terrorists and similar guerilla groups don't meet those criteria. This is not new information. It has been recognized for some time. Back in the late Seventies there were moves to amend the GC with what was known as Protocol I that would provide legal standing (POW status) for terrorists and their ilk. The U.S. never signed this. When the Protocol was brought before the U.S. then President Reagan explicitly rejected Protocol I because he refused to give terrorists legal standing.* The status of the Gitmo prisoners then is typically referred to as one of the following: unlawful combatants, enemy combatants or simply detainees. Each is meant to demonstrate a distinction between the prisoners and legal combatants who would be POWs.

The Hamdan Decision notes the military commissions as presently constituted are unauthorized. It does not speak to or comment on any requirement to hold military commissions or the prisoners continued detention that could be maintained until the end of hostilities which in a long war scenario could be very long indeed. Does that help?


* From Reagan's message to the Senate Transmitting a Protocol to the GC (1987)

Spoiler Alert, click show to read: 

But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.'’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.

***

It is unfortunate that Protocol I must be rejected. We would have preferred to ratify such a convention, which as I said contains certain sound elements. But we cannot allow other nations of the world, however numerous, to impose upon us and our allies and friends an unacceptable and thoroughly distasteful price for joining a convention drawn to advance the laws of war. In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

***

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

(Protocol I has been adopted by most other nations)

---

Yes, thanks.

Quote:

---

Originally Posted by Pindar

The status of the prisoners at Gitmo falls between the traditional Geneva Conventions (GC) cracks.

---

This is incorrect. The Taleban were the legally constituted militia of the sovereign nation of Afghanistan. As such, all Taleban prisoners are subject to the protections of the Geneva Conventions, and the US is obliged to provide them with such protections under its own treaty obligations, insofar as it has signed the Geneva Conventions.

Moreover, the arguments by some US lawyers to create new legal categories (and thereby justify the torture of prisoners and the denial of their rights under the GC) should not be treated as objective facts. Contrary arguments from international lawyers hold that the US's actions in regards to so-called 'enemy combatants' contradict the US's own treaty obligations, and possibly US law itself, which now prohibits US armed forces from subjecting prisoners to cruel, degrading or inhumane treatment: http://72.14.203.104/search?q=cache:...a&ct=clnk&cd=1 ).

There are two sides to every story. In the case of the Taleban prisoners at Gitmo, the Bush administration is clearly violating the Geneva Conventions and perhaps even its own laws as well.

Quote:

---

Originally Posted by Pindar

Interesting, your view is distinct from the U.S. model whose 230 year history indicates balance and control does not require parity. Personally, I don't think a unelected Branch can justify parity.

---

The Roman Empire existed much longer than 230, yet I would argue that it's system was flawed. The US isn't a instable country, no doubt. Only one civil war in 230 years has to mean something. But that doesn't imply the system is optimal. The primary flaw that turned the Weimar Republic into the Third Reich was that the Constitution allowed elected branches too much power.

Quote:

---

Originally Posted by Hurin_Rules

This is incorrect. The Taleban were the legally constituted militia of the sovereign nation of Afghanistan. As such, all Taleban prisoners are subject to the protections of the Geneva Conventions, and the US is obliged to provide them with such protections under its own treaty obligations, insofar as it has signed the Geneva Conventions.

---

Oh, Hurin my lad, your like a babe lost in a wood. The Taliban were not a legally constituted militia. If you disagree then what is the source of the legality? Afghanistan was not a sovereign nation. The U.S. did not recognize the Taliban regime. Few nations did.

Quote:

---

There are two sides to every story. In the case of the Taleban prisoners at Gitmo, the Bush administration is clearly violating the Geneva Conventions and perhaps even its own laws as well.

---

Are the Taliban signatories to the GC?

Quote:

---

Originally Posted by A.Saturnus

The Roman Empire existed much longer than 230, yet I would argue that it's system was flawed. The US isn't a instable country, no doubt.

---

So you agree this statement: "Balance and control between the branches requires that one is not more powerful than others." was incorrect?

Quote:

---

Only one civil war in 230 years has to mean something. But that doesn't imply the system is optimal.

---

If the system was optimal we wouldn't have Judicial Tyranny or Hilary Clinton the Senator of NY.

Pindar-san,

What would be your stance on the following scenarios:

Question 1.
Another nation did not recognise the USA and had captured US citizens. They put them in prison, but did not charge them with any crime. When a trial did come the prisoners were not allowed either a trial by jury or to be present while all evidence against them was put before the court.

Question 2.
Using the above scenario would you deem it okay as long as the rule of law was followed as established by that nation.

Question 3.
Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

Quote:

---

Originally Posted by Pindar

Oh, Hurin my lad, your like a babe lost in a wood. The Taliban were not a legally constituted militia. If you disagree then what is the source of the legality? Afghanistan was not a sovereign nation. The U.S. did not recognize the Taliban regime. Few nations did.

---

Again, incorrect. Afghanistan was and remains a sovereign nation, regardless of whether the US decides to extend diplomatic relations to it or not. And yes, Afghanistan was and remains a party to the Geneva Conventions. The Taliban clearly fall under Article 4 of the Geneva Convention as 'members of the armed forces of a Party to the Conflict as well as members of militias or volunteer corps forming part of such armed forces'; they are thus to receive the full protections of Prisoners of War. Moreover, the US attack on Afghanistan clearly constituted an international armed conflict of the type governed by the Conventions. Customary international humanitarian law also applied (although the US has and continues to violate it).

A request: Please don't sidetrack this thread by making your usual argument that only democracies are sovereign nations again. It is a radical position shared only by very few and will completely strangle the thread. The writers and signatories of the Geneva Conventions do not share your position, and I think we can have a good discussion on this issue without that red herring thrown into the mix. I'll obviate the need for such sterile excursions by removing the word 'sovereign' from my claim that 'Afghanistan was a sovereign nation'. I think we can all agree that 'Afghanistan was a nation'.

Finally, even 'unlawful combatants' are entitled the right to humane treatment, as defined in articles 27 and 37 of the fourth Geneva Convention, as the International Committee of the Red Cross has noted: http://www.icrc.org/Web/eng/siteeng0...849_Dorman.pdf

Quote:

---

Originally Posted by Pindar

So you agree this statement: "Balance and control between the branches requires that one is not more powerful than others." was incorrect?

---

Define balance.

Quote:

---

Originally Posted by Pindar

Does this mean you think an unelected Branch of the Government should be equal in power with elected Branches?

---

Yes, precisely for the fact that they are unelected. I don't know about the US, but in my country, judges are chosen from those who have a well-developed sense of morality ... and are also forbidden from making any public statements about, or engage in, politics. They are above the petty squabbles that rip through the elected goverment, and an instable elected goverment does not destabilize the judicial system ... they are above, and apart. If the goverment, any branch of it, steps out of line ... the judges (and especially my country's Supreme, and even more the Constitutional court) can curb them, provided that someone rises a complaint (something which anyone can do).

As to the Geneva Convention ... I cannot tell you what to do, but call upon the moral obligations inherent in a free world. You claim moral high ground. What ground is that when you do not even allow the basic inalienable human rights to those taken prisoner in a war without international consent. A war waged under hazy pretenses. You do nothing more by this course of action than lower yourselves to the level of the same people you look down upon as amoral. You actually give additional forces and reasons to your enemies. Now they only need to show some of the prisoners of Guantanamo, who are being held without charge, some of them innocently for all who listen to believe the tales of the Great Satan. They made a move, and you played right into their hands. You are already deep in ... the only way to get out of the hole you dug for yourselves is to make a complete turn and show them that you are, in fact, not a paranoid country which will hold innocent people prisoner without even the most basic rights ... for no other reason than fear. You wage a war on Terror, but Terror seems to have won already, seeing how you act.

Quote:

---

Originally Posted by Papewaio

Pindar-san,

What would be your stance on the following scenarios:

Question 1.
Another nation did not recognise the USA and had captured US citizens. They put them in prison, but did not charge them with any crime. When a trial did come the prisoners were not allowed either a trial by jury or to be present while all evidence against them was put before the court.

Question 2.
Using the above scenario would you deem it okay as long as the rule of law was followed as established by that nation.

Question 3.
Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

---

Hello,

Is this a scenario of a Pindar Presidency where the land is then marked by fluffy clouds, fuzzy bunnies and merriment abounds? And yet (queue ominous music) in some far locale darkness and oppression remains: perhaps due to a plague of Leftism? Whether evil doer nation X recognizes the U.S. or not is not my concern. What I would need to know to more properly answer would be why were U.S. citizens captured? Is this because they were fighting in a war zone? If so, then the consequences of their actions are upon them. For example, if there were a Johnny Walker Lindh taken by his opponents: so be it, such is the life of the mercenary.

Regarding questions 2 & 3: law is fluid and subject to the polity that is its source. Some nations are more lawful, others not. To quote Bilbo Baggins: "It's a dangerous business going out your door. You step onto the road and if you don't keep your feet, there's no knowing where you might be swept off to" One should avoid lands whose legality they question.

Quote:

---

Originally Posted by Hurin_Rules

Again, incorrect. Afghanistan was and remains a sovereign nation, regardless of whether the US decides to extend diplomatic relations to it or not.

---

Not so, If a state is not recognized by another state then said state has no legal standing. This impacts any notion of sovereignty which is tied to authority. So goes the law.

You didn't respond to how the Taliban were the legally constituted militia, so I will assume we can dismiss that idea.

Quote:

---

A request: Please don't sidetrack this thread by making your usual argument that only democracies are sovereign nations again. It is a radical position shared only by very few and will completely strangle the thread. The writers and signatories of the Geneva Conventions do not share your position, and I think we can have a good discussion on this issue without that red herring thrown into the mix. I'll obviate the need for such sterile excursions by removing the word 'sovereign' from my claim that 'Afghanistan was a sovereign nation'. I think we can all agree that 'Afghanistan was a nation'.

---

Actually my position is only governments that are amenable to the people are legitimate. Something that is illegitimate has no authority. This would impact any claimed sovereignty. We could put it this way if you like: only popular sovereignty is sovereign. Now if you claim a Taliban regime is sovereign, which I then dismantle for the absurdity it is, that is not a red herring, but a standard element of rational discourse. You have used red herring incorrectly. Further, whether others share my view is irrelevant to the veracity of the view. To assume a contrary majority opinion is somehow determinative because of its contrariness or majority is to commit a fallacy: argumentum ad populum, to then apply it to the Geneva Conventions signatories is to commit: argumentum ad verecundiam. The proper course for defending the claimed legitimacy, sovereignty etc. of autocrats or Islamo-fascist groups would be to show the error of my argument. This of course, you would fail to do, which would then leave a simple opposition of passion: such is the fate of so many Leftists, alas.

Afghanistan was a nation, but the Taliban were not the lawful government of that nation: they were an Islamo-fascist insurgency.

Quote:

---

And yes, Afghanistan was and remains a party to the Geneva Conventions.

---

Afghanistan was, but not the Taliban.

Quote:

---

The Taliban clearly fall under Article 4 of the Geneva Convention as 'members of the armed forces of a Party to the Conflict...

---

Did the Taliban have uniforms distinguishing them as combatants?

Quote:

---

Originally Posted by A.Saturnus

Define balance.

---

Ahh, that's your word, not mine. I assume you mean and meant balance as a product of function.

Quote:

---

Originally Posted by Keba

Yes, precisely for the fact that they are unelected.

---

Why does unelected status warrant equal standing with an elected branch of government?

Quote:

---

As to the Geneva Convention ... I cannot tell you what to do, but call upon the moral obligations inherent in a free world. You claim moral high ground. What ground is that when you do not even allow the basic inalienable human rights to those taken prisoner in a war without international consent.

---

What inalienable right are you referring to?

A "moral high ground" argument would not require international consent. It would require moral high ground.

Quote:

---

Originally Posted by Pindar

Why does unelected status warrant equal standing with an elected branch of government?

---

I tried my best to explain in my post. In essence, they are above politics, and have the authority to curb the excess of the elected branches, should they act against the constitution or morality (yes, my country's laws allow that category, it's a failsafe in the event of an altered or even abolished consitution). Simply, they are meant to prevent a totalitarian regime.

Quote:

---

Originally Posted by Pindar

What inalienable right are you referring to?
A "moral high ground" argument would not require international consent. It would require moral high ground.

---

The right to a fair trial, to live, the usual stuff one can find accessable to any person, by the fact of their birth. Please note the use of fair trial, it is the basis of our modern, western society.

I agree that 'moral high ground' does not require international consent, it would, however, require the agreement of other nations that a certain action was immoral, and that a move is justified. Please note, however, that I am not talking of invasions or anything else, the arguement is about the status of prisoners. The moral high ground I refer to is the one of the War on Terror, with which I, essentially, agree, but it is my belief that the US went about it the wrong way.

Ugh ... it seems that my brain is not properly working anymore, I'm unable to make a properly coherent post ... I'm off to bed.

Quote:

---

Originally Posted by Pindar

Ahh, that's your word, not mine. I assume you mean and meant balance as a product of function.

---

I asked because you seemed to implicitely equal balance with stability. Function or stability do not necessarily imply balance. Some things require imbalance to function.

Quote:

---

Regarding questions 2 & 3: law is fluid and subject to the polity that is its source. Some nations are more lawful, others not. To quote Bilbo Baggins: "It's a dangerous business going out your door. You step onto the road and if you don't keep your feet, there's no knowing where you might be swept off to" One should avoid lands whose legality they question.

---

Hmm, I don't really want to interfere with that part of the discussion, but you sound like what some people here call a "moral relativist".

Hi Pindar,

The reason I asked was because your stance interests me. For the first question your answer summed up in this nugget:

Quote:

---

Is this because they were fighting in a war zone? If so, then the consequences of their actions are upon them.

---

That at least hints that you see the law applies to both equally, 'whats good for the goose is good for the gander'. Tough but fair.

Questions 2 & 3. Given the topic of 3

Quote:

---

Originally Posted by Pape

Using the above scenarios. Would you still see it as okay if the law was changed after the capture of those prisoners.

---

Your answer

Quote:

---

Originally Posted by Pindar

One should avoid lands whose legality they question.

---

What is your backpackers guide to avoiding countries if the law changes and is backdated?

Quote:

---

Originally Posted by Pindar

Not so, If a state is not recognized by another state then said state has no legal standing. This impacts any notion of sovereignty which is tied to authority. So goes the law.

Actually my position is only governments that are amenable to the people are legitimate. Something that is illegitimate has no authority. This would impact any claimed sovereignty. We could put it this way if you like: only popular sovereignty is sovereign. Now if you claim a Taliban regime is sovereign, which I then dismantle for the absurdity it is, that is not a red herring, but a standard element of rational discourse. You have used red herring incorrectly. Further, whether others share my view is irrelevant to the veracity of the view. To assume a contrary majority opinion is somehow determinative because of its contrariness or majority is to commit a fallacy: argumentum ad populum, to then apply it to the Geneva Conventions signatories is to commit: argumentum ad verecundiam. The proper course for defending the claimed legitimacy, sovereignty etc. of autocrats or Islamo-fascist groups would be to show the error of my argument. This of course, you would fail to do, which would then leave a simple opposition of passion: such is the fate of so many Leftists, alas.

---

I knew you couldn't refrain from that one (although I though you would at least have refrained from making demeaning remarks towards leftists after taking such a beating in that ridiculous thread you posted about emotionalism and leftists; alas, I guess you never did learn your lesson). I'm not going to go down that old road again, diverting the thread while you engage in your usual, deliberately-obtuse, cross-examiner shtick, asking dozens of questions but refraining from simply outlining your own position and saving us all hours upon hours. It is the summer and I don't have the time either for the tedium or for the abuse. You would make our discussion much more edifying if you could restrain your anger at the left and avoid sidetracking the thread through this inflammatory puerility.

Quote:

---

Did the Taliban have uniforms distinguishing them as combatants?

---

Yes. But they are to be afforded the protections I outlined above even if they didn't.

Quote:

---

You didn't respond to how the Taliban were the legally constituted militia, so I will assume we can dismiss that idea.

---

Nor did you respond when I pointed out that articles 27 and 37 of the Geneva Conventions apply even to 'unlawful' combatants. Nor did you respond to my point about international humanitarian law applying as well.

Perhaps you could also respond to this one: does common article 3 of the Geneva Conventions apply to detainees or not?

You might also like to explain why Taliban have not been treated as POWs until such time as their status is determined-- for the Geneva Conventions require that they be treated as POWs until this happens. As I'm sure you are aware, Article 5 of the third Geneva 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.

You might also like to explain whether the Fourth Geneva Convention regarding the Protection of Civilian Persons applies to the Taleban or not, and where exactly the Geneva Conventions discuss this category of 'unlawful combatants' about which you have spoken.

Ready to take the stand?

The status of any Afganstan citizen should be one of POW regardless of wether they were members of the Taliban militias or from a spontanous (SP) uprising of the people of Afganstan. The requirement of an identifiable uniform is waved if their is an organized command structure (The Taliban Militia) and/or the citizens are reacting to an invasion of their homes.

The United States has an onus by the Hague Conventions of 1907 and the Geneva Conventions to treat those individuals as POW's until such a time that their status is proven to be that of a criminal element on the battlefield. Now this does not prevent the United States from holding them where we deem fit to hold the Prisoners - just that they must be accorded the POW status until proven otherwise.

Now citizens of other nations captured by collation forces in Afganstan can be deemed unlawful combatants.

So the short answer is that they are a POW until proven a criminal. So until such time they should be afforded all the rights (and responsibilities) of a Prisoner of War.

What status was the Nuremburg court, military or civilian?

Quote:

---

Originally Posted by Papewaio

So the short answer is that they are a POW until proven a criminal. So until such time they should be afforded all the rights (and responsibilities) of a Prisoner of War.

---

The short answer is those that are Afganstan citizens are consider POW's, until charged with criminal activity. The rights of a POW does not mean that the capturing nation can not remove them from the theater of operations.

Quote:

---

Originally Posted by Papewaio

So the short answer is that they are a POW until proven a criminal. So until such time they should be afforded all the rights (and responsibilities) of a Prisoner of War.

What status was the Nuremburg court, military or civilian?

---

The Nuremburg trials after WWII were military tribunals. There were actually two distinct sets of trials. The first was the International Military Tribunal, which had judges and prosecutors from each of the main allied countries - U.S., France, USSR and the UK. The judges and prosecutors were a mix of military officers and civilian experts (professors, lawyers and diplomats for the most part). These trials included the prosecutions of members of the SS, the SA, the General Staff and the Gestapo and more.

There was also a series of 12 trials afterwards conducted by the U.S. alone, although under authority of the rules of the Allied Control Council, which allowed single Allied countries to conduct trials within their zone of control. The growing divisions between the former Allies made more trials such as the first big one impossible. These trials, spread out over three years from 1946-1949, were a military tribunal was well; although again, mixed military and civilian personnel. The trials included the "Doctor's Trial" of those suspected of medical experimentation, such as Karl Brandt, Hitler's physician and others, and the "Judge's Trial" of German jurists and lawyers. The tried many of the industrial giants as well, such as at the Krupp Trial and the IG Farben trial. They also tried members of the infamous Einsatzgruppen of the SD and others.

Considering the discussion at hand, I think it's important to note that not everyone tried at Nuremburg was in the military, or even a "combatant" as such. They tried judges, executives of various companies and more who weren't, at any time during the war, in uniform or in the military.


Alberto Gonzales 2002 memorandum for the president is disturbing because it attempts to define prisoners captured in Afghanistan as not being protected by the Geneva Conventions. The memorandum states things like Afghanistan is a failed state, that the Taliban was not a government, that by making this determination there would be no need to determine POW status on a case by case basis (just lump everyone they find together and not have to worry about it), and perhaps even worse the statements that this approach would eliminate any danger of U.S. personnel being tried for war crimes under the 1996 War Crimes Act since they couldn't be committing war crimes if they weren't using the Geneva Conventions in the first place. Appalling isn't it?

There were more memos, some just as appalling. Findlaw has them here:
http://news.lp.findlaw.com/hdocs/doc...turememos.html

In a rather unexpected reversal, it looks like the Bush administration has finally realized it was wrong and is now admitting that ALL detainees are protected by the Geneva Conventions:

Quote:

---

WASHINGTON - The Bush administration said Tuesday that all detainees held at Guantanamo Bay, Cuba, and in all other U.S. military custody around the world are entitled to protections under the Geneva Conventions.

White House spokesman Tony Snow said the policy, outlined in a new Defense Department memo, reflects the recent 5-3 Supreme Court decision blocking military tribunals set up by President Bush.

The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to reverse the administration’s earlier insistence that the detainees are not prisoners of war and thus subject to the Geneva protections.

Word of the Bush administration’s new stance came as the Senate Judiciary Committee opened hearings Tuesday on the Guantanamo issue — which is testing unity among Republicans on Capitol Hill, with lawmakers trying to decide in an election season how military detainees should be tried and what their rights should be.

Snow insisted that all U.S. detainees have been treated humanely. Still, he said, “We want to get it right.”

“It’s not really a reversal of policy,” Snow asserted, calling the Supreme Court decision “complex.”

'Consistent with national security'
He said efforts to spell out more clearly the rights of detainees does not change the president’s determination to work with Congress to enable the administration to proceed with the military tribunals, or commissions. The goal is “to find a way to properly do this in a way consistent with national security,” Snow said.

Snow said that the instruction manuals used by the Department of Defense already comply with the humane-treatment provisions of Article 3 of the Geneva Conventions. They are currently being updated to reflect legislation passed by Congress and sponsored by Sen. John McCain, R-Ariz., to more expressly rule out torture.

“The administration intends to work with Congress,” Snow said.

“We want to fulfill the mandates of justice, making sure we find a way properly to try people who have been plucked off the battlefields who are not combatants in the traditional sense,” he said.

“The Supreme Court pretty much said it’s over to you guys (the administration and Congress) to figure out how to do this. And that is where this is headed. And we look forward to working with Congress on this.”

© 2006 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

http://www.msnbc.msn.com/id/13813974/

---

Care to comment, Pindar?

Care to comment, Pindar?
That is not the issue :laugh4: :laugh4: :laugh4: :laugh4: :laugh4:

Sorry for the dely

Quote:

---

Originally Posted by Me

Why does unelected status warrant equal standing with an elected branch of government?

Quote:

---

Originally Posted by Keba

I tried my best to explain in my post. In essence, they are above politics, and have the authority to curb the excess of the elected branches, should they act against the constitution or morality (yes, my country's laws allow that category, it's a failsafe in the event of an altered or even abolished consitution). Simply, they are meant to prevent a totalitarian regime.

---

---

Your view is the Judiciary is above politics so they should be equal in power to duly elected branches? Even assuming an above politics posture is possible, I don't see how this idea justifies empowerment let alone equal power with a branch of government based on popular sovereignty.

Quote:

---

Originally Posted by Gelatinous Cube

That's a silly question.

---

"And the light shineth in darkness; and the darkness comprehended it not." St. John 1:5

Quote:

---

Originally Posted by A.Saturnus

I asked because you seemed to implicitely equal balance with stability. Function or stability do not necessarily imply balance. Some things require imbalance to function.

---

I asked about this statement: "Balance and control between the branches requires that one is not more powerful than others." I don't understand your verbiage: why "requires"? Historically, this doesn't seem the case. Functionally this doesn't seem the case either.

Quote:

---

Hmm, I don't really want to interfere with that part of the discussion, but you sound like what some people here call a "moral relativist".

---

Sounds like somebody is conflating law with morality.

Quote:

---

Originally Posted by Papewaio

What is your backpackers guide to avoiding countries if the law changes and is backdated?

---

The U.S. State Department regularly lists travel advisories.

Quote:

---

Originally Posted by Hurin_Rules

I knew you couldn't refrain from that one (although I though you would at least have refrained from making demeaning remarks towards leftists after taking such a beating in that ridiculous thread you posted about emotionalism and leftists; alas, I guess you never did learn your lesson). I'm not going to go down that old road again, diverting the thread while you engage in your usual, deliberately-obtuse, cross-examiner shtick, asking dozens of questions but refraining from simply outlining your own position and saving us all hours upon hours. It is the summer and I don't have the time either for the tedium or for the abuse. You would make our discussion much more edifying if you could restrain your anger at the left and avoid sidetracking the thread through this inflammatory puerility.

---

I think my position is quite clear. I noted it in the post. Here it is again: "my position is only governments that are amenable to the people are legitimate." This impacts any claimed sovereignty which I explained. If you wish to challenge that view do so. The above offers no challenge. I can only assume this is due to either inability or agreement. So, unless you put something forward we can dispense with the idea of legitimatcy or sovereignty.

Quote:

---

Originally Posted by Me

Did the Taliban have uniforms distinguishing them as combatants?

Quote:

---

Yes.

---

---

Interesting, can you provide an example? Recall the criteria for a uniform is stipulated in the Convention (clear insignia visual from a distance). If this doesn't exist then they fail to meet one of the necessary criteria for POW status.

Quote:

---

Nor did you respond when I pointed out that articles 27 and 37 of the Geneva Conventions apply even to 'unlawful' combatants. Nor did you respond to my point about international humanitarian law applying as well.

---

I didn't respond to Articles 27 or 37 because they didn't really apply. If you read either you will note both are stipulations for prisoner of war status. If the detainee's aren't recognized as POW's then neither apply. Even so, I don't know that either of these were denied.

Now, regarding my question: how are the Taliban a legally constituted militia? Do you have an answer or can we dismiss this idea?

Quote:

---

Perhaps you could also respond to this one: does common article 3 of the Geneva Conventions apply to detainees or not?

---

This is what the SCOTUS Ruling referred to. This was part of the Stevens Opinion.

Quote:

---

You might also like to explain why Taliban have not been treated as POWs until such time as their status is determined

---

All sent to Gitmo. were previously sifted through field commissions. This is what determined their status. Recall, some 6000 were originally captured. From that, the initial odd 600 were sent to Gitmo.

Quote:

---

You might also like to explain whether the Fourth Geneva Convention regarding the Protection of Civilian Persons applies to the Taleban or not, and where exactly the Geneva Conventions discuss this category of 'unlawful combatants' about which you have spoken.

---

Taliban were not civilians. They were armed combatants. The Geneva Conventions the U.S. is a signatory to do not discuss this. That is why I mentioned insurgencies, guerillas etc fall through the cracks. This is what Protocol I, introduced in 1977, meant to address. The U.S. refused to sign it because it refused to give terrorists POW status.

Quote:

---

Originally Posted by Hurin_Rules

In a rather unexpected reversal, it looks like the Bush administration has finally realized it was wrong and is now admitting that ALL detainees are protected by the Geneva Conventions:

Care to comment, Pindar?

---

Actually, the Administration is compiling with the SCOTUS Ruling regarding Article III. The Stevens Opinion referred to Article III explicitly. I mentioned this in the initial post of the thread. That is part of the point of the thread. This is one of the reasons I noted the ruling is a bad decision.