US Supreme Ct.: Gitmo trials illegal under Geneva Convention and US law

[Hurin_Rules]

A major rebuke for the Bush administration (and vindication of what some of us have been arguing for years on these boards):

http://www.msnbc.msn.com/id/13592908/

http://edition.cnn.com/2006/LAW/06/2...als/index.html

[rory_20_uk]

How long did that take?

No one is free. They're now going to wrangle over details for possibly years.

Land Of The Free?

[Lemur]

The court’s ruling says nothing about whether the prison should be shut down, dealing only with plans to put detainees on trial.

So nothing has really changed. The tribunal trials are off the menu, but the status of Guantanamo is undecided. Ugh. That place is a stain on our nation's honor.

[Hurin_Rules]

How long did that take?

Two years to overturn Bush's assertion that it could hold people indefinitely without access to trials, lawyers, charges or even the evidence against them.

Another two years to overturn Bush's assertion that it could make up the rules for the 'courts' on the fly and deny prisoners their rights under the Geneva Convention.

So it is four years in total that some of these people have been held unjustly.

But I wouldn't be holding my breath for an apology.

[rory_20_uk]

Two years to overturn Bush's assertion that it could hold people indefinitely without access to trials, lawyers, charges or even the evidence against them.

Another two years to overturn Bush's assertion that it could make up the rules for the 'courts' on the fly and deny prisoners their rights under the Geneva Convention.

So it is four years in total that some of these people have been held unjustly.

But I wouldn't be holding my breath for an apology.

An apology?

Just come out and say you want to kill Americans why don't you? Commie...

[English assassin]

Two years to overturn Bush's assertion that it could hold people indefinitely without access to trials, lawyers, charges or even the evidence against them.

Another two years to overturn Bush's assertion that it could make up the rules for the 'courts' on the fly and deny prisoners their rights under the Geneva Convention.

So it is four years in total that some of these people have been held unjustly.

But I wouldn't be holding my breath for an apology.

An apology? For holding people illegally for four years (and counting). For urinating all over the rule of law?

Bush can keep his apology. This should be jail time.

[yesdachi]

I don’t think we should forget the fact that not all of the people in gitmo are innocent peace loving shopkeepers who were just in the wrong place at the wrong time when the big bad US kidnapped them from their daily activities of praying for world peace.
Anyone know the proper way to handle a POW of an ongoing war. IMO freedom is not an option for some of these prisoners.

[Lemur]

Anyone know the proper way to handle a POW of an ongoing war.

Here's a partial answer:

Spoiler Alert, click show to read: 

GENERAL PROTECTION OF PRISONERS OF WAR

Article 12

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.

Article 13

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Article 14

Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.

Article 15

The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health.

Article 16

Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.

[Devastatin Dave]

http://en.wikipedia.org/wiki/Useful_idiot

Osama thanks you.

[rory_20_uk]

I don’t think we should forget the fact that not all of the people in gitmo are innocent peace loving shopkeepers who were just in the wrong place at the wrong time when the big bad US kidnapped them from their daily activities of praying for world peace.
Anyone know the proper way to handle a POW of an ongoing war. IMO freedom is not an option for some of these prisoners.

Guilty until proven otherwise, right?
How many years for evidence to come forward? And as there's no defence council, it doesn't need to be that great.

They're not POWs. Surely you know that? POWs have rights. You can't torture them, they get visits from the Red Cross, give name rank and serial number etc etc.

If you arrested 7,000 Americans there'd be lots of crminals amongst them (probably most minor stuff). Does that make it right?

[Lemur]

Osama thanks you.

In other words, why do we hate freedom?

Because clearly, any American who argues that we should adhere to our core values in this conflict must be a proxy for Osama. Did you think of this line of slander yourself Dave, or did someone help you with your homework?

[UglyandHasty]

That was about time a court rule on that.

I wouldnt be surprise if one day in the futur, some of the Bush current administration(or even Bush) are under trial by the international court because of Guantanamo.

[rory_20_uk]

http://en.wikipedia.org/wiki/Useful_idiot

Osama thanks you.

Did you read the link Dave? Says it all really.

Lenin is suppsed to have said that. Not attributed to him for decades.

Guantanamo has come up with virtually nothing.
Terrorism hasn't stopped.
The numbers aren't significant.

Yup, guantanamo is helping Bin Laden no end. Way to create a focus for the opposition. A modern Katyn Forest Massacre.

Don't worry Dave, no one expects you to provide anything to back that up. It's good to see that the old uncle figure is still with us, bless him. Shame his mind isn't as sharp as a concussed poodle's...

[Lemur]

My God, Devastatin' Dave is slowly turning into an anorexic woman!

[rory_20_uk]

You're sure that's a woman...

[doc_bean]

That was about time a court rule on that.

I wouldnt be surprise if one day in the futur, some of the Bush current administration(or even Bush) are under trial by the international court because of Guantanamo.

That will never happen. The US would never allow it's leaders to be trialed by foreigers. Nor would any other western country really, Serbia reluctantly agreed since they weren't left much choice...

It would be nice to see them trialed in the US for deception fo the public/treason though. It will never happen

[Kanamori]

I don’t think we should forget the fact that not all of the people in gitmo are innocent peace loving shopkeepers who were just in the wrong place at the wrong time when the big bad US kidnapped them from their daily activities of praying for world peace.

Even if they were all guilty, it would be immoral and illegal. Somehow, the fact that they are or even may be terrorists vindicates the illegality of the government's actions? One of the most conservative principles is the rule of law, and this is a very clear violation. The entire legal system depends on fair treatment for all; these people were not even given trials, so I don't see how we can even begin to speculate on how many are guilty or not. I don't think that it can get any more unjust than jailing someone without trial, and that's what's been going on.

[English assassin]

I wouldnt be surprise if one day in the futur, some of the Bush current administration(or even Bush) are under trial by the international court because of Guantanamo.

I wonder why they never signed up to that. Oh, wait...

[Lemur]

Interesting analysis:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

If I'm right about this, it's enormously significant.

[Keba]

If I'm right about this, it's enormously significant.

It is ... but nothing can be done about it. The guilty parties have their asses covered. The US has already stated (some time ago) that it will not extradite it's citizens to the International Court of Law (a number of countries were forced to sign the thing, promising not to extradite US citizens, under political pressure).

As for the internal legal system ... I find that prospect unlikely, but it remains to be seen.

[Aenlic]

OK, perhaps some barebones definitions are needed before the argument gets going really well.

Treatment of POW's - well established by the Geneva Conventions of 1949 and the additional Protocols of 1977.

So, how does the Bush administration solve this little problem? They define the prisoners of war as detainees and enemy combatants. Violá! No more prisoners of war and no need to worry about those pesky Geneva thingies.

The SCOTUS (Supreme Court of the United States) said nope, so sorry that won't do.

"The military commission at issue is not expressly authorized by any congressional act," said Justice John Paul Stevens, writing for the majority. The tribunals, he said, "must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law."

Customary international law in this case being... wait for it... those pesky Geneva thingies. Ooops.

Ruh roh! That puts a wrench in the works, because the whole idea of military tribunals and unlimited detainment was based upon the detainees not being protected by the Geneva Conventions.

"In undertaking to try Hamdan and subject him to criminal punishment, the executive is bound to comply with the rule of law that prevails in this jurisdiction," Stevens said.

Those darn pesky Geneva thingies agin! You can almost hear Bush saying this to his little toadie Alberto Gonzales, can't you?

Sadly for democracy and judicial oversight and the rule of law however, Bush wasted no time in making it clear to everyone that he doesn't really care. GASP! What a surprise.

He (Bush)also said that the "American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street."

Understand it? Him? Will SCOTUS be releasing their ruling as a graphic novel or a comic book to make this happen? Ruh roh. And this from a man who "understands" such things so well that he blatantly disregarded something as simple as SCOTUS decisions clearly stating that wiring tapping U.S. citizens is illegal without a court-ordered warrant, at the very least by a FISA court? This whole SCOTUS ruling is beginning to look like a lost cause. And then, just to top it off with a typical Bush smirk we get the following:

"One thing I'm not going to do, though, I'm not going to jeopardize the safety of the American people," Bush said, adding, "I understand we're in a war on terror, that these people were picked up off of a battlefield."

OK, it looks like SCOTUS is just like the rest of us (you know, those pesky citizens and a government of the people and by the people and for the people). Ignored when inconvenient.

Don't kid yourselves. This isn't a triumph of the rule of law over a power-hungry unitary executive. It's just smoke in the wind and it will all be business as usual as soon as they can put the blinkers back on the ignorant majority. Go back to sleep, child, nothing to see here. Hush, Daddy is taking care of everything.

[yesdachi]

Here's a partial answer:

Thanks for the link Lemur. According to it the treatment of POW’s at gitmo is definitely questionable, but from what I have heard from a former gitmo guard is that aside from some childish meow little games meow they were treated as well as in any other US prison (prison stay and interrogation techniques are separate issues to me). Well behaved prisoners were treated better than troublemakers.

The part I am really confused about is the holding without a trial part or why they would be entitled to one. I don’t know what the rule is but don’t you take prisoners and when the war is over you give them back? How does a trial fit into the equation? That, and what they really are, civilian, terrorist, enemy soldier, POW? Do some get a trial and some don’t?

[Aenlic]

Yesdachi, I recommend that you find and go see a movie called Road to Guantanamo, which details the experiences of 3 British citizens called the Tipton Three. They were held without charges for 2 years in Gitmo, until finally released after international pressure. They spent two years in there, experienced torture in there, and their take on Gitmo is rather different than your statement about it being no worse than any other U.S. prison. Thanks to U.S. Attorney General Gonzales' position that the Gitmo prisoners are enemy combatants and not prisoners of war, the Geneva Conventions have not been applied to them - at all. They have been without those protections for as much as 4 years now. There has been torture. It just hasn't been called torture. That thanks to another little Gonzales' memo which decided that the Bush administration gets to decide what is and isn't torture, not international law. Even the Nazis at least made a show of looking like they were abiding by the conventions. We won't even do that.

[Lemur]

It isn't torture if we don't call it torture, that much is obvious. I believe the Daily Show coined the term "Freedom Tickling"?

[yesdachi]

Yesdachi, I recommend that you find and go see a movie called Road to Guantanamo, which details the experiences of 3 British citizens called the Tipton Three. They were held without charges for 2 years in Gitmo, until finally released after international pressure. They spent two years in there, experienced torture in there, and their take on Gitmo is rather different than your statement about it being no worse than any other U.S. prison. Thanks to U.S. Attorney General Gonzales' position that the Gitmo prisoners are enemy combatants and not prisoners of war, the Geneva Conventions have not been applied to them - at all. They have been without those protections for as much as 4 years now. There has been torture. It just hasn't been called torture. That thanks to another little Gonzales' memo which decided that the Bush administration gets to decide what is and isn't torture, not international law. Even the Nazis at least made a show of looking like they were abiding by the conventions. We won't even do that.

Actually, the Road to Guantanamo is on my list.

It seems the biggest issue people have is that we are not following the Geneva Conventions with people that have not been following Geneva Conventions. Maybe I am uncaring but it doesn’t really bother me. What bothers me is that we (the president) haven’t publicly given them a designation, whatever it may be, and dealt with them accordingly, sidestepping the Geneva Conventions or not. There is too much evasion and not enough decisive action.

[Soulforged]

Thanks to U.S. Attorney General Gonzales' position that the Gitmo prisoners are enemy combatants and not prisoners of war, the Geneva Conventions have not been applied to them - at all.

Even if Mr. Gonzales is right, the custom of international law still applies. Even more this actions could be considered as crimes against humanity. The sistematic character of the actions is prooved, it has an specific target wich is a group of people, and the actions have the intention of destroying either their lives or their freedoms. There's a lot of Treaties that were violated here, not just the Convention about POW. But wait, you'll say, the USA didn't ratified, not even participated in, for example, the Convention about imprescriptibility of crimes of war and against humanity, that is true, however the responsability for those crimes is previous to the treaty, the treaty only confirms it.

[whyidie]

Damn those activist judges.

[Aenlic]

I think the only real positive sign from all of this, considering that it's unlikely that the Bush administration and idiots like Alberto Gonzales are going to stop violating international law or even our own US laws, is that the SCOTUS turns out to not be as bad as some people predicted.

Roberts had to recuse himself from the decision; because he was on the lower appeals court that initially ruled in favor of the Bush administration. So that left a 5-3 vote, with Scalia and Thomas and scAlito on the outside looking in. Even if Roberts had been in on the decision and repeated his appeals court performance, it still would have been a 5-4 decision. We can only hope that no more justices retire or die before Bush is either impeached, convicted and frog-marched out of the White House to stand trial in the Hague for war crimes or he's thrown out on his ass after the 2008 elections and then sent off to the Hague.

[Ronin]

amazing......common sense comes out on top......

could this be a sign?...is the end near?

[Watchman]

Actually, the Road to Guantanamo is on my list.

It seems the biggest issue people have is that we are not following the Geneva Conventions with people that have not been following Geneva Conventions. Maybe I am uncaring but it doesn’t really bother me. What bothers me is that we (the president) haven’t publicly given them a designation, whatever it may be, and dealt with them accordingly, sidestepping the Geneva Conventions or not. There is too much evasion and not enough decisive action.

Quite a few accounts suggest way too many of them were guilty (as far as is relevant anyway) exactly of being in the wrong place at the wrong time and nothing else. Period.
But you know, since no charges are pressed, no proper investigations made and no proper courts gathered, they get to sit in there for years as "enemy combatants" before some wiseguy figures the most they're getting out of them is solid advice on animal husbandry and herding sheep.

Aside from that, laws are supposed to apply to everyone equally and in particular the authorities supposed to enforce them are also supposed to adhere to them. Or, put this way: we all know organized crime uses some pretty brutal methods, don't we ? So how many would be willing to let the police use similar methods on suspected (as in, not proven) organized crime members...?

If the point didn't become clear, then assume you for one reason or another are mistakenly suspected of being a "made man" and subjected to those methods.

Habeas corpus and Innocent Until Proven Guilty. It puzzles me how easily so many people are willing to deny them to "bad guys" without apparently for a second thinking of the implications.