“We Will Analyze The Decision”

Published June 30, 2006 in Politics.

The Bush administration still - still - sees itself as above the law. Don’t count on the rubberstamp congress to do a thing about it.

16 Responses to ““We Will Analyze The Decision””

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1 Marty
Jun 30th, 2006 at 3:06 pm

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.
2 Mike
Jun 30th, 2006 at 5:06 pm

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?
3 Frank_D
Jun 30th, 2006 at 5:06 pm

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…
4 QuakerinaBasement
Jun 30th, 2006 at 7:06 pm

Feh.

What else could they say?
5 bryan
Jun 30th, 2006 at 7:06 pm

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!-
6 drpedro
Jun 30th, 2006 at 7:06 pm

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!
7 Frank_D
Jun 30th, 2006 at 9:06 pm

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”?
8 frameone
Jun 30th, 2006 at 9:06 pm

“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.
9 frameone
Jul 1st, 2006 at 5:07 am

“‘What the rights prescribed by the present Convention’?”

Gee, I don’t know …

Art. 71. No sentence shall be pronounced by the competent courts of the Occupying Power except after a regular trial.

Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be brought to trial as rapidly as possible. The Protecting Power shall be informed of all proceedings instituted by the Occupying Power against protected persons in respect of charges involving the death penalty or imprisonment for two years or more; it shall be enabled, at any time, to obtain information regarding the state of such proceedings. Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particulars of these and of any other proceedings instituted by the Occupying Power against protected persons.

The notification to the Protecting Power, as provided for in the second paragraph above, shall be sent immediately, and shall in any case reach the Protecting Power three weeks before the date of the first hearing. Unless, at the opening of the trial, evidence is submitted that the provisions of this Article are fully complied with, the trial shall not proceed. The notification shall include the following particulars: (a) description of the accused; (b) place of residence or detention; (c) specification of the charge or charges (with mention of the penal provisions under which it is brought); (d) designation of the court which will hear the case; (e) place and date of the first hearing.

Art. 72. Accused persons shall have the right to present evidence necessary to their defence and may, in particular, call witnesses. They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.

Failing a choice by the accused, the Protecting Power may provide him with an advocate or counsel. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.

Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, both during preliminary investigation and during the hearing in court. They shall have the right at any time to object to the interpreter and to ask for his replacement.

Art.73. A convicted person shall have the right of appeal provided for by the laws applied by the court. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

The penal procedure provided in the present Section shall apply, as far as it is applicable, to appeals. Where the laws applied by the Court make no provision for appeals, the convicted person shall have the right to petition against the finding and sentence to the competent authority of the Occupying Power.

Art. 74. Representatives of the Protecting Power shall have the right to attend the trial of any protected person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the Occupying Power, which shall then notify the Protecting Power. A notification in respect of the date and place of trial shall be sent to the Protecting Power.

Any judgement involving a sentence of death, or imprisonment for two years or more, shall be communicated, with the relevant grounds, as rapidly as possible to the Protecting Power. The notification shall contain a reference to the notification made under Article 71 and, in the case of sentences of imprisonment, the name of the place where the sentence is to be served. A record of judgements other than those referred to above shall be kept by the court and shall be open to inspection by representatives of the Protecting Power. Any period allowed for appeal in the case of sentences involving the death penalty, or imprisonment of two years or more, shall not run until notification of judgement has been received by the Protecting Power.

Art. 75. In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve.

No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence, or of an order denying pardon or reprieve.

The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences.

Art. 76. Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.

They shall receive the medical attention required by their state of health.

They shall also have the right to receive any spiritual assistance which they may require.

Women shall be confined in separate quarters and shall be under the direct supervision of women.

Proper regard shall be paid to the special treatment due to minors.

Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.

Such persons shall have the right to receive at least one relief parcel monthly.

Art. 77. Protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory.

Art. 78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.
10 frameone
Jul 1st, 2006 at 5:07 am

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)”
11 Frank_D
Jul 1st, 2006 at 7:07 am

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.
12 Marty
Jul 1st, 2006 at 11:07 am

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.
13 duros62
Jul 1st, 2006 at 12:07 pm

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?
14 Frank_D
Jul 1st, 2006 at 8:07 pm

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.
15 doug r
Jul 3rd, 2006 at 2:07 am

71% of Americans agree: bring them to trial or treat them as POW’s.
http://abcnews.go.com/US/story?id=2121953&page=1
16 Frank_D
Jul 3rd, 2006 at 8:07 am

Now if we could only get 100% of the Supreme Court to agree on what to do, we could shut down the government
/sarcasm