A Supreme Court Hamdan Guide

[A.Saturnus]

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.

[Papewaio]

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?

[Aenlic]

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.

[Papewaio]

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..."

[Seamus Fermanagh]

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.

[Pindar]

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.

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.

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.

[Seamus Fermanagh]

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.

[Pindar]

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?

[Pindar]

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.

[Pindar]

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.

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

[Aenlic]

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.

[Papewaio]

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.

[Kralizec]

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.

[Hurin_Rules]

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.

[Pindar]

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.

[Pindar]

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.

[Pindar]

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.

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.

[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.

[A.Saturnus]

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.

[Pindar]

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)

[Pindar]

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.

[Seamus Fermanagh]

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.

[Hurin_Rules]

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.

[A.Saturnus]

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.

[Pindar]

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.

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?

[Pindar]

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?

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.

[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.

[Hurin_Rules]

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

[A.Saturnus]

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

Define balance.

[Keba]

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.