Supreme Court rules against Tribunals

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Thomas gets owned here:

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http://www.acsblog.org/separation-of-powers-2923-guest-blogger-hamdan-and-the-youngstown-framework.html

Thomas, Scalia, and Alito have shown that they are total power hungry fascists here.

[minionofmidas]

Indeed, Stevens actually said we can hold them in club Gitmo until the end of hostilities since they are POWs.  He left us a way out.

Fine with me.  Rot terrorists - no way Bush tries them in American courts.  Imagine how hard it would be for Ramsey Clark to have to divide his time between Sadaam's trial and all the terrorists who demand trials.  You can't expect Ramsey to have to commute clear across the world.  Hehe

What happened to presumtion of innocence.

If they're POWs...then they don't have to be tried, do they? Of course, this also means there are POW protections that come into play and all that. This will be interesting to watch.

There's like, 5, things you're allowed to ask a POW in interrogations. You know, name, unit, place of birth, that sort of thing. And you can't torture them.

[Mr. Morden]

I support this decision. Everyone should have the right to a trial rather than being held indefinitely without being charged with a crime. If they are truly guilty, and I believe the vast majoirty of them certainly are, we should have absolutely no trouble getting convictions.

It's still unclear to me that this decision *does* prevent them from being held indefinitely.  If they're POWs, then you can hold them until the end of hostilities, which could go on indefinitely, without ever charging them with a crime.

[Emsworth]

The ruling is completely unsound on technical grounds. Last year, Congress passed the Detainee Treatment Act, which provides that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guanatanamo Bay." Therefore, the Supreme Court has no jurisdiction over this case. But the Supreme Court ignored the plain text of the act, and relied instead on its "legislative history" to conclude that it really did have jurisdiction after all.

[nlm]

For those that would like to read the ruling

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

[MODU]

The ruling is completely unsound on technical grounds. Last year, Congress passed the Detainee Treatment Act, which provides that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guanatanamo Bay." Therefore, the Supreme Court has no jurisdiction over this case. But the Supreme Court ignored the plain text of the act, and relied instead on its "legislative history" to conclude that it really did have jurisdiction after all.

Let's not forget the fact that they in effect altered a US treaty.

[WMS]

Indeed, Stevens actually said we can hold them in club Gitmo until the end of hostilities since they are POWs.  He left us a way out.

Fine with me.  Rot terrorists - no way Bush tries them in American courts.  Imagine how hard it would be for Ramsey Clark to have to divide his time between Sadaam's trial and all the terrorists who demand trials.  You can't expect Ramsey to have to commute clear across the world.  Hehe

What happened to presumtion of innocence.

If they're POWs...then they don't have to be tried, do they? Of course, this also means there are POW protections that come into play and all that. This will be interesting to watch.

There's like, 5, things you're allowed to ask a POW in interrogations. You know, name, unit, place of birth, that sort of thing. And you can't torture them.

Under the Geneva Conventions or under something else? And we haven't been torturing them (not at Gitmo - the shipping them off to other countries where torture is possible is another issue, though), hyperbolic press commentary aside. How legal all of this is remains murky - which is the point Mr. Morden was trying to make. And John Ford and Emsworth have made interesting points about this...

[minionofmidas]

That would be, to treat them as ordinary criminals. The problem is, very few of them have committed any crime under US law. Remember, this is one of the handful of Gitmo inmates that they felt they had most about - and what is it? That he was Bin Ladin's chauffeur. Others are farmers from around Al Qaeda who supplied it with market vegetables. Others are just anybody who moved to Afghanistan or areas in Pakistan bordering Afghanistan from a Western country immediately before 9/11 or between 9/11 and the invasion (these people are mostly released by now.)
The people the government really felt to be dangerous terrorists mostly never made it to Gitmo.

[WMS]

That would be, to treat them as ordinary criminals. The problem is, very few of them have committed any crime under US law. Remember, this is one of the handful of Gitmo inmates that they felt they had most about - and what is it? That he was Bin Ladin's chauffeur. Others are farmers from around Al Qaeda who supplied it with market vegetables. Others are just anybody who moved to Afghanistan or areas in Pakistan bordering Afghanistan from a Western country immediately before 9/11 or between 9/11 and the invasion (these people are mostly released by now.)
The people the government really felt to be dangerous terrorists mostly never made it to Gitmo.

Or POW's. Unless there is a third option I am unaware of, it seems like one of those two options can be used. On the flip side, some of the people we released have been found to have gone back there and fought against the U.S. So it remains murky.
It could have been done better, yes...but then again, "it could have been done better" is the unofficial slogan I assign to the Bush Administration, period.

[minionofmidas]

That would be, to treat them as ordinary criminals. The problem is, very few of them have committed any crime under US law. Remember, this is one of the handful of Gitmo inmates that they felt they had most about - and what is it? That he was Bin Ladin's chauffeur. Others are farmers from around Al Qaeda who supplied it with market vegetables. Others are just anybody who moved to Afghanistan or areas in Pakistan bordering Afghanistan from a Western country immediately before 9/11 or between 9/11 and the invasion (these people are mostly released by now.)
The people the government really felt to be dangerous terrorists mostly never made it to Gitmo.

Or POW's. Unless there is a third option I am unaware of, it seems like one of those two options can be used. On the flip side, some of the people we released have been found to have gone back there and fought against the U.S. So it remains murky.
It could have been done better, yes...but then again, "it could have been done better" is the unofficial slogan I assign to the Bush Administration, period.

LOL.

Hey. They could have done worse. They're not breaking ILO regulations by making persons detained without trial do forced labour. (I just read a piece about British behaviour in Kenya in the 50s... they were sort of wrestling with the same problem. They didn't want to try everyone, which is what you normally do with partisan fighters - didn't have any evidence anyways -they were certainly not ready to treat these people as POWs either. They wanted to know more about who they were fighting, too.) Actually, there is of course one major difference - the British still claimed to be legitimate owners of Kikuyuland. The Americans never made that claim about Afghanistan. The "legally correct" route would no doubt have been to get all these people through the Afghani court and prison system...

[WMS]

That would be, to treat them as ordinary criminals. The problem is, very few of them have committed any crime under US law. Remember, this is one of the handful of Gitmo inmates that they felt they had most about - and what is it? That he was Bin Ladin's chauffeur. Others are farmers from around Al Qaeda who supplied it with market vegetables. Others are just anybody who moved to Afghanistan or areas in Pakistan bordering Afghanistan from a Western country immediately before 9/11 or between 9/11 and the invasion (these people are mostly released by now.)
The people the government really felt to be dangerous terrorists mostly never made it to Gitmo.

Or POW's. Unless there is a third option I am unaware of, it seems like one of those two options can be used. On the flip side, some of the people we released have been found to have gone back there and fought against the U.S. So it remains murky.
It could have been done better, yes...but then again, "it could have been done better" is the unofficial slogan I assign to the Bush Administration, period.

LOL.

Hey. They could have done worse. They're not breaking ILO regulations by making persons detained without trial do forced labour. (I just read a piece about British behaviour in Kenya in the 50s... they were sort of wrestling with the same problem. They didn't want to try everyone, which is what you normally do with partisan fighters - didn't have any evidence anyways -they were certainly not ready to treat these people as POWs either. They wanted to know more about who they were fighting, too.) Actually, there is of course one major difference - the British still claimed to be legitimate owners of Kikuyuland. The Americans never made that claim about Afghanistan. The "legally correct" route would no doubt have been to get all these people through the Afghani court and prison system...

Glad you liked that bit.

Thanks for making that point - we could have done worse, and we even provide the call to prayer through our own, err, imam (?) on the Gitmo speaker system so they can continue their religious obligations (which makes us far better than the Commies, anyway ). And that is a very fascinating comparison with the Kenyan insurgency the British had to deal with. And the legally correct route...well, we'd have taken flak for that, too, given Afghanistan is still coming to grips with the whole concept of "rule of law" not meaning "stick your enemies in metal boxcars in the middle of the desert and roast them to death" (the Dostum approach ). Tricky, tricky...

[Filuwaúrdjan]

The guy that does the Adhaan is a Muezzin. An Imam is, basically, a priest (the term can also be used for almost any sort of Islamic leader).

And that old bastard Dostum never really went in for the whole "container" craze IIRC (Malik, I think his name is/was Malik. Anyway the guy that deposed Dostum for a while, certainly did though).

The Dostum Method is tying someone to the tracks of a tank and...

[WMS]

The guy that does the Adhaan is a Muezzin. An Imam is, basically, a priest (the term can also be used for almost any sort of Islamic leader).

And that old bastard Dostum never really went in for the whole "container" craze IIRC (Malik, I think his name is/was Malik. Anyway the guy that deposed Dostum for a while, certainly did though).

The Dostum Method is tying someone to the tracks of a tank and...

Ah, thanks for the correction Al. Muezzin! I knew that! Argh!

Malik sounds familiar, so I think you got the name right.

So, "Tank Tread" Dostum vs. "Rail Container" Malik? What is this, a matchup in Hell?

[A18]

The ruling is completely unsound on technical grounds. Last year, Congress passed the Detainee Treatment Act, which provides that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guanatanamo Bay." Therefore, the Supreme Court has no jurisdiction over this case. But the Supreme Court ignored the plain text of the act, and relied instead on its "legislative history" to conclude that it really did have jurisdiction after all.

Actually they claim that their interpretation is the "most natural reading," though that seems difficult to say with a straight face.

Ford's second point does not address the Court's reasoning, because the majority relied on Common Article 3 in its opinion.

[The Duke]

Ford's second point does not address the Court's reasoning, because the majority relied on Common Article 3 in its opinion.

Common article 3 only applies "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties".

Common article 3 does not apply here, obviously, as this war is as international in character as any war has been in a very long time.  Given that I think its clear Common Article 3 does not apply, I think my position is correct.