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The Bush administration still – still – sees itself as above the law. Don’t count on the rubberstamp congress to do a thing about it.
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Actually scratch, you don’t quite have it right- the court has no problem with military tribunals. They knocked down the idea that the executive branch could be the one who decides on the type of hearing/trial in Hamdi’s case. They left open the opportunity for the Legislature to decide on military tribunals for prisoners captured in this conflict.
Scratch,
Let’s see what all these know-it-all “defenders of the Constitution” are made of, shall we? Since Bush has supposedly done everything possibly wrong, violated rights and laws and such, please outline the perfect treatment of the Guantanamo prisoners:
How do we classify terrorists captured by our military? POW’s – even though they violate the Geneva Convention’s requirements to be recognized as legal combatants?
IF they are not POW’s, what are they?
Should they be tried in a civil court? A Military court?
What charges should be brought against them?
Should they be subjected to the Constitutional rights guaranteed for American citizens, even though they are not American citizens?
If they are POW’s, then under Geneva they have no right to attorney or criminal trial. They are not criminals, just captives who are to be held until the end of hostilities. Is that fair?
What do we do with the prisoners already in Guantanamo?
Should we recognize “Afghanistan” as a signatory of the Geneva conventions, and thereby treat prisoners captured in Afghanistan by the GC, even though the Taliban government was not recognized by the US as the proper legal government of Afghanistan at the time?
So many questions. Let’s have the perfect answers now, shall we?
The very idea that the Executive Branch might question the Supreme Court!
One might get the idea that the the Supreme Court was supposed to be a referee in interstate squabbles, and the Executive Branch was under the delusion that they were running the country…
Oh, wait…
Feh.
What else could they say?
I can’t help it. is it true that Condi and W are bumping uglies, and that Laura has quit the whitehouse because of it? I gotta know!-
Great questions Mike…
I suspect this is going to provoke extended periods of silence from Ollie and his fellow leftist travelers though…This thread is dead!
shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.
We’ve been here before, Bluto.
What the rights “prescribed by the present Convention”?
“POW s – even though they violate the Geneva Convention s requirements to be recognized as legal combatants? IF they are not POW s, what are they? Should they be tried in a civil court? A Military court? What charges should be brought against them?”
Guys what it comes down to is this: POWs are prisoners with special rights granted to them by the Geneva Conventions based on the nature of warfare. For instance, an occupying power is not allowed to try an enemy soldier for murder and execute them, if that soldier was acting within the rules of war, like say, killing another soldier on the field of combat. POWs get other rights like the right to medical treatment, communication with family, the right not to answer questions beyond name, rank serial number etc.
If it is found, by a duly constituted military tribunal, established according to requirements laid in the Genave Conventions, that a person is an unlawful combatant and not entitled to the special protections of a POW, that personal is simply a prisoner, not a prisoner of war, subject to the laws of the occupying authority. Having lost POW status, however, they do not lose all their rights entirely. The Geneva Convention clearly asserts, as the Supreme Court reminded the Bush administraton, that everyone who falls into the custody of an occupying power must be given their basic human rights and are entitled to “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
In other words, even if someone is not entitled to the special status of POW you can’t just summarily execute them without a trial. You can’t just torture the fuck out fo them because no law governs your treatment of them. If they aren’t POWs they are still prisoners entitled under the Geneva Conventions to basic human rights, due process and fair treatment.
Article 4 of Convention 4 defines protected civilain persons:
Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
Now here s article 5:
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
So even if a civilian is determined to be an unlawful combatant we they shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.
“‘What the rights prescribed by the present Convention’?”
Gee, I don’t know …
Why don’t you try actually reading something, Frank?
“The passing of sentences and the carrying out of executions are forbidden unless all the judicial guarantees which are recognized as indispensable by civilized people have been met and a regularly constituted court has pronounced a judgment. (Convention I, Art. 3, Sec 1d)”
Well, thanks for the cut and paste, Paulie, but a link would have sufficed — forgot how to do that link thingie, eh? Oh that’s right… Pretending you wrote it must give you a woody.
Personally, I pad all my papers with that method — indents, cited paragraphs, two to a page.
But I digress.
Just a hypothetical: Could not these procedures have been followed, and given that no “Protecting Power” exists to take advantage of the information revealed in Secs. 71 and 72, the trials would be virtually secret.
In other words, the information only has to be revealed to the accused and the Protecting Power — in this case, our allies.
The point being, that the SCOTUS is not just asking that our prisoners be treated like “Geneva – style” POW’s; they have also interpreted the Geneva Conventions with regard to new class of prisoners.
Once again, the SCOTUS has overstepped the limits of Amendment X, The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people
And that’s Judicial Activism.
Wow, Frank- that was unecessary. Frame clearly put it in quotes. And as far as the Executive branch analyzing the decision, I would have to imagine they will be considering what course of action they can take in light of the decision. I would suspect that a legislative course is in order per the court’s decision.
And that s Judicial Activism.
And that’s bullshit, Frank. You would like to reduce the Supreme Court to a glorified traffic court and simply shoot everyone held at Guatanamo in the head, wouldn’t you?
The Supreme court is the third branch of government, designed to keep the other two in check, and vice versa.
Once again, the SCOTUS has overstepped the limits..
And yet the President has not, is that it?
duros62: Just because you and all the other liberals have overlooked the 9th and 10th Amendments of the Constitution, doesn’t mean I have.
And judicial interpretation was only a natural outcome of the Court’s originally defined role as “interstate referee”, not traffic court.
Resolving interstate issues was serious business before Reconstruction, when the Federal gummint used its power to occupy and restructure the South as the “nose in the tent” to ever increasing Government power.
From a conservative point of view, it’s been downhill ever since.
71% of Americans agree: bring them to trial or treat them as POW’s.
http://abcnews.go.com/US/story?id=2121953&page=1
Now if we could only get 100% of the Supreme Court to agree on what to do, we could shut down the government
/sarcasm