[greenG4]

I would like to discuss and get a few opinions of the recent Sipreme Court decision to afford captured terrorists the title of POWs under the Geneva Conventions. For starters, the Geneva Conv is a TREATY (actually 4 treaties) signed by a number of governments. These treaties refer to international law concerning the art of war. Previously to this, only those who signed the treaty had to afford the rights/expect to receive the rights of a POW. The SC has now essentially extended that treaty to everyone. Terrorists and all. Where does the constitution give the Supreme Court the right to enter into a treaty? Nowhere. That is a reserved right of the congress/executive branch. I seriously think the SC has overstepped it's constitutional rights in this decision. I haven't been able to read up on all the facts of this (IE read the supporting and dissenting arguements from the court), so I am going off what the press says, which I don't always trust.

[greenG4]

Links:

Geneva Conventions: http://en.wikipedia.org/wiki/Geneva_Conventions

Story: http://www.foxnews.com/story/0,2933,201530,00.html

[besson3c]

Stupid activist judges!

[greenG4]

Originally Posted by besson3c

Stupid activist judges!

Come on Besson, you're supposed to give a viable dissenting opinion! I was counting on it from you.

[besson3c]

Originally Posted by greenG4

Come on Besson, you're supposed to give a viable dissenting opinion! I was counting on it from you.

I'm just warming up... I'm generally not very good with coming up with an immediate opinion on legal nitty gritty though.

BTW, it's "supreme", not "sipreme".

[besson3c]

I will say that this was an important decision, and a big blow against the Bush administration who seems intent on extending executive power.

I'm not sure how this works out strategically, but I'm definitely not very trusting of issuing this government (or any government) more power in general, I think they overstep their bounds on many issues.

[greenG4]

Originally Posted by besson3c

BTW, it's "supreme", not "sipreme".

Typo. Notice the "u" and "i" are very close. Also, notice that I don't proof-read my posts very well.

[mac128k-1984]

I dunno about Legislating, but it is a blow to the bush administration. From the sounds of it, not an unexpected blow. I think to be fair to everyone they need to be tried, having them in jail w/o any trials I think only helps inflame the anti-american attitudes in the world.

I'm not sure if a military tribunal or a civilian court is in order but lets get off snide and get this behind us.

[spauldingg]

Article VI of the constitution: misinterpret it at will:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

[greenG4]

Originally Posted by mac128k-1984

I dunno about Legislating, but it is a blow to the bush administration. From the sounds of it, not an unexpected blow. I think to be fair to everyone they need to be tried, having them in jail w/o any trials I think only helps inflame the anti-american attitudes in the world.

I'm not sure if a military tribunal or a civilian court is in order but lets get off snide and get this behind us.

Per Article VI above, the treaty is the supreme law of the land. They ADDED to the law--expanded it to fit what they wanted. Thus, legislating.

[Millennium]

Originally Posted by spauldingg

Article VI of the constitution: misinterpret it at will:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

It's pretty clear. This is why the Senate has to ratify treaties, but is forbidden to ratify any treaties which would require the US to do anything unconstitutional. The hierarchy essentially goes as follows:

The Constitution
Any federal treaties (states are forbidden from making treaties on their own)
Federal law
State Constitutions
State law
Local law

Therefore, the federal government is bound to the treaties it has signed, almost as much as it is to its own Constitution. It is technically illegal for the government to break such a treaty, and therefore I applaud the decision of the SCOTUS.

I've said it before and I'll say it again: if a government can no longer hold onto power using only ethical means, then it no longer deserves to hold onto its power.

[greenG4]

Originally Posted by Millennium

It's pretty clear. This is why the Senate has to ratify treaties, but is forbidden to ratify any treaties which would require the US to do anything unconstitutional. The hierarchy essentially goes as follows:

The Constitution
Any federal treaties (states are forbidden from making treaties on their own)
Federal law
State Constitutions
State law
Local law

Therefore, the federal government is bound to the treaties it has signed, almost as much as it is to its own Constitution. It is technically illegal for the government to break such a treaty, and therefore I applaud the decision of the SCOTUS.

I've said it before and I'll say it again: if a government can no longer hold onto power using only ethical means, then it no longer deserves to hold onto its power.

The hierarchy you posted is correct to my knowledge. I fail to see how the treaty was broken, which what I get the sense you were saying. (If not, sorry) There was NO broken treaty. Just one expanded by the SC to include people it did not previously include.

[spauldingg]

Originally Posted by greenG4

I haven't been able to read up on all the facts of this (IE read the supporting and dissenting arguements from the court)..

Maybe you should before you take this any further. I will also.

[medicineman]

The President can do one of four things. He can ask Congress to draft legislation to cover this scenario, he can release them, he can turn them over to their respective governments or do what is traditionally done with those captured in war, keep them till the end of the conflict.

[spauldingg]

The end of the conflict being? When we beat "terrorims?" How do you beat a concept?

[greenG4]

Originally Posted by spauldingg

Maybe you should before you take this any further. I will also.

This is what I have been waiting for:

http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

[black bear theory]

how did the US deal with captured terrorists before 9/11? what makes al-qaeda picked up post-9/11 different from those pre-9/11?

the term 'illegal combatant' didn't come up until we invaded afghanistan in the WoT and started picking up fighters out of uniform, even though our own SF were eshewing uniforms for the more strategic local garb at the time.

[SimeyTheLimey]

Originally Posted by Millennium

It's pretty clear. This is why the Senate has to ratify treaties, but is forbidden to ratify any treaties which would require the US to do anything unconstitutional. The hierarchy essentially goes as follows:

The Constitution
Any federal treaties (states are forbidden from making treaties on their own)
Federal law
State Constitutions
State law
Local law

Therefore, the federal government is bound to the treaties it has signed, almost as much as it is to its own Constitution. It is technically illegal for the government to break such a treaty, and therefore I applaud the decision of the SCOTUS.

I've said it before and I'll say it again: if a government can no longer hold onto power using only ethical means, then it no longer deserves to hold onto its power.

This is not quite right. Treaties are part of federal law, they are not above federal law. They are treated exactly like federal statutes. And just like a statute, they can repeal earlier statutes, and subsequent statutes can override them.

To the first poster: the Court today really did not do what you are saying. Both left and right are overreading this decision. It's really quite narrow. (But long -- 185 paqes with the syllabus!).

[spauldingg]

Originally Posted by greenG4

This is what I have been waiting for:

http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

I'm busy reading the new decision. You wanna sum it up, or quote the relevant passages to make this go a little quicker? Thanks.

Edit: Ooops responded to the wrong reference.

[greenG4]

Originally Posted by spauldingg

I'm busy reading the new decision. You wanna sum it up, or quote the relevant passages to make this go a little quicker? Thanks.

I'm trying to still sort it out. 185 pages is a lot. Basically, the court found that Terrorists can be afforded the writ of habeas corpus. They can petition for a US Court to try them. I'm not a lawyer, so some of the language is lost on me. It seems we can no longer hold them as enemy combatants. They must be tried in court like a US citizen. A bit different than my first impression, but just as jacked up IMO. My eyes are blurring from reading this. I haven't even gotten to the dissenting opinions yet.

(edit) Any lawyers out there??????

[SimeyTheLimey]

Originally Posted by spauldingg

I'm busy reading the new decision. You wanna sum it up, or quote the relevant passages to make this go a little quicker? Thanks.

Maybe I can help a bit. Be careful when you read it. Some parts of Stevens' opinion (the whole section on whether conspiracy constitutes a war crime, and quite a bit about common article 3) didn't command a majority. Kennedy joined parts of it, and not others.

Basically, the case holds:

The Court held it had jurisdiction. Congress had tried to take it away.

The Court held that the current military commissions don't meet US statutory standards for procedure. As part of this, the court held that the weakest level of Geneva Convention protections apply (the government argued - I think wrongly - that it didn't apply).

If Hamdan is to be tried, it has to be in civilian court or in a military commission set up with the same kind of procedures as a regular courts martial, as used for US military personnel.

Hamdan doesn't have to be tried at all, he can continue to be held indefinitely without trial.

[ghporter]

It is completely allowable for Congress to pass and the President to sign into effect laws that are more stringent than existing laws. When an existing law provides for a minimum standard and a new law establishes a higher standard, there is no conflict at all. This is similar to new laws that extend the requirements of the Pure Food and Drug act. Further, individual states can pass laws with more stringent standards than Federal standards-the state of Michigan established higher standards for processed meats than the Pure food and Drug Act called for and the Federal government sued-and lost.

In stating that there are situations where it is impossible to determine whether a combatant is a formal (and thus lawful) combatant or an unsanctioned, informal (and thus unlawful) combatant, the Supreme Court has simply pointed out the obvious. In Southwest Asia, even many of the sanctioned soldiers of the former Afghan regime didn't wear what would be considered uniforms under the Conventions, so does that mean that almost all fighters were unlawful? Probably not. So the SCotUS said "err on the side of caution and render the prifeledges of POW status to all but the most obviously unlawful combatants. By the way, that's a pretty easy call; shoot at people from a mosque or hospital and it doesn't matter if you're in your finest dress parade kit-you're unlawful.

As for the actual specific case in question, I don't think anyone ever expected that the Conventions' standards would be held to not apply at all. It sounds like a bargaining chip-or that our legislators are less intelligent about international issues than I like to think...

[greenG4]

Originally Posted by SimeyTheLimey

Maybe I can help a bit. Be careful when you read it. Some parts of Stevens' opinion (the whole section on whether conspiracy constitutes a war crime, and quite a bit about common article 3) didn't command a majority. Kennedy joined parts of it, and not others.

Basically, the case holds:

The Court held it had jurisdiction. Congress had tried to take it away.

The Court held that the current military commissions don't meet US statutory standards for procedure. As part of this, the court held that the weakest level of Geneva Convention protections apply (the government argued - I think wrongly - that it didn't apply).

If Hamdan is to be tried, it has to be in civilian court or in a military commission set up with the same kind of procedures as a regular courts martial, as used for US military personnel.

Hamdan doesn't have to be tried at all, he can continue to be held indefinitely without trial.

So I was kinda right. Why are people who did not sign a treaty afforded the bennefits of said treaty??

[SimeyTheLimey]

Originally Posted by greenG4

So I was kinda right. Why are people who did not sign a treaty afforded the bennifits of said treaty??

That isn't really the way to look at it. It is more that the country that signed up to the treaty agreed to limit itself. In this case, common article 3 forms a kind of a floor.

The court didn't hold that they get POW status. In fact, it expressly declined to consider that question because it found this lesser status applied. This is pretty much what I said here a year or two ago. Link Link From my point of view, that is an unremarkable construction and I was a bit shocked to see the Bush Administration tried to argue otherwise. My comment to a friend was that they "over-Yoo'd" their argument.

[greenG4]

Originally Posted by SimeyTheLimey

That isn't really the way to look at it. It is more that the country that signed up to the treaty agreed to limit itself. In this case, common article 3 forms a kind of a floor.

The court didn't hold that they get POW status. In fact, it expressly declined to consider that question because it found this lesser status applied. This is pretty much what I said here a year or two ago. From my point of view, that is an unremarkable construction and I was a bit shocked to see the Bush Administration tried to argue otherwise. My comment to a friend was that they "over-Yoo'd" their argument.

But a treaty is between specific named entities who wish to agree with all other entities in that treaty. I guess I never interpreted that to mean it extends to others who had nothing to do that treaty. I can see your interpretation, I just never thought about it that way.

[spauldingg]

This is helping me digest it a little easier. It is most probably biased, but is well written. The guys name is familiar, but can't place him. Either way, for him to slap this together so quickly is quite impressive. I'm sure Simey will agree.

http://glenngreenwald.blogspot.com/2...-rumsfeld.html

[greenG4]

Originally Posted by spauldingg

This is helping me digest it a little easier. It is most probably biased, but is well written. The guys name is familiar, but can't place him. Either way, for him to slap this together so quickly is quite impressive. I'm sure Simey will agree.

http://glenngreenwald.blogspot.com/2...-rumsfeld.html

This clears some things up. It's still nagging at me that we affording the rights of the Geneva Conventions to terrorists.

[spauldingg]

Ah. That is what you can't get over, because, you just assume that they are terrorists, and not actual living human beings. Someone said, "they are terrorists" and so they "are terrorists" to you. Who said they are terrorists? Why, it was the "Rumsfeld" half of the case. You simply granted the Rumsfeld side as "fact," and never considered the "Hamden" side. (Not Hamden himself, but his/his lawyers... and thier argument that human beings on planet earth should...

...BE FRIGGEN ALLOWED TO KNOW WHAT EVIDENCE IS BEING USED AGAINST THEM!)

If you can't grasp that then give it up. There's tons of others.

[medicineman]

Originally Posted by spauldingg

The end of the conflict being? When we beat "terrorims?" How do you beat a concept?

Terrorism is a tactic used by terrorists. I thought we were beyond defining words.

[Troll]

Originally Posted by SimeyTheLimey

Hamdan doesn't have to be tried at all, he can continue to be held indefinitely without trial.

Of course, getting your legal summaries from Simey, you're going to get his heavy-handed interpretation thrown in. The court did not for instance say what I quoted from his post. Technically, this case had to do with Executive power more than it had to do with Guantanamo Bay and theoretically the detainees could be held indefinitely because no court has had to look at the question of indefinite detention without trial so far. However, if the Administration tried to detain them indefinitely without trial, that would almost certainly be challenged and the Administration would almost certainly lose.

If you want a full interpretation of what the Geneva Conventions say and how each side interprets it, read the Merkel and Guantanamo thread.

"Any real lawyer who isn't part of the administration knows this violates the Geneva Conventions," Michael Mori, a military lawyer defending Guantanamo detainee David Hicks.

[Troll]

http://www.scotusblog.com/movabletyp...n_summary.html

Interesting what some are saying about the effect on the CIA's interrogation techniques.

"As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

it is hard to overstate the principal, powerfully stated themes emanating from the Court, which are (i) that the President's conduct is subject to the limitations of statute and treaty; and (ii) that Congress's enactments are best construed to require compliance with the international laws of armed conflict.

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)."