Supreme Court Rules Against Bush Admin

Published on June 29, 2006 By Gideon MacLeish In Politics

Looks like the fears of a Supreme Court composed of Bush cheerleaders are greatly exaggerated. In a 5-3 decision (With Chief Justice John Roberts sidelined over a conflict of interest), the court ruled that the detention of combatants at Guantanamo Bay, Cuba, and the proposed military tribunals are unConstitutional. This means the "have it both ways" policy of an administration that wants to treat these detainees as neither citizens of Iraq deserving of a fair trial nor prisoners of war may have to come to an end as questions about the validity of what we are doing with Gitmo seem so far to be going against the administration.

I expect pundits and talking heads to sort out what all this means and what the Bush administration will do to deal with these detainees, who they insist pose a serious threat to our national security, while similarly insisting that no proof of these allegations is necessary, but that we must take them at their word. I believe this may be a first and fatal blow against an administration that insists that the mere questioning of its policies poses a threat to our national security, and that the Bill of Rights was not meant to apply during wartime, and who subsequently invoked an undefined, open ended war to further their agenda. I don't think this means Bush will be the next Nixon, as a lot of questions still remain, but I do feel it means his self proclaimed power has been greatly eroded and that there may be hope yet for the restoration of Democracy in America.

Comments (Page 1)

Dr Guy

on Jun 29, 2006

You are not quite correct:

it does not address the government's ability to detain suspects.

From http://www.cnn.com/2006/LAW/06/29/scotus.tribunals/index.html

It is hardly the armegeddon that you portray. But it does mean Bush will have to rethink what to do with these prisoners. The Geneva Convention does not apply as they are not uniformed soldiers from a sovereign nation. You are right in that it now opens up more questions than it answers.

bakerstreet

on Jun 29, 2006

I don't see where they say the detention is unconstitutional. They don't even rule out these tribunals, they just say that at present he hasn't been granted the authority by Congress. Justice Breyer said:

"Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

I'm not seeing this as the loss you are portraying it as. Actually, in my opinion, it is a loss for the people detained there, because it makes the chance of them getting their day in court even further away.

davad70

on Jun 29, 2006

The Geneva Convention does not apply as they are not uniformed soldiers from a sovereign nation.

Actually it is you who is not correct. The Geneva Convention apparently does apply, at least in part.

From Scotusblog;

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).

And from the syllabus of the decision;

(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.
(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.
(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

Dr Guy

on Jun 29, 2006

Actually it is you who is not correct. The Geneva Convention apparently does apply, at least in part.

Actually it is you who is not correct. The SCOTUS has no jurisdiction over the Geneva Convention.

You are making a career of being wrong.

bakerstreet

on Jun 29, 2006

When was the last time we fought a foreign power that kept to the Geneva convention? They've been revising it since the 1800's, and it hasn't seemed to matter a bit. Germany was very selective in their adherance to it. Japan didn't at all. Koreans didn't. The Vietnamese didn't. Hussin didn't. Terrorists don't.

I'm just curious at this point how in the hell anyone sees it as anything remotely touching on reality.

ParaTed2k

on Jun 29, 2006

I'll write my own article about what I think of the decision itself, but I do want to respond to your article and what you stated here.

None of our rights or laws should be enforced so strictly that they become our enemies greatest weapon against us. Already our Freedom of the Press has been used in direct fire against us; Privacy rights are quickly becoming the sidearm of terrorists and now SCOTUS tells us that once a person is pulled from the fight, merely holding them fills the enemy batteries with more ammunition than they could buy in all the arms markets in all the world.

If our press, our elected officials and our SCOTUS are willing to roll over the barrel the bacteria had provided, we might as well bring the troops home becuase (like Vietnam) the troops have been betrayed. That being said, we have never put people on trial for their alleged role in a current war. It's pretty much new territory in a lot of ways, so it will be interesting to see what precedences are set for how we fight terrorism in the future.

singrdave

on Jun 29, 2006

Guy:

The Geneva Convention does not apply as they are not uniformed soldiers from a sovereign nation.

In order to uphold the Third Geneva Convention of 1949:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties...
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.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
( that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

The enemy must be fighting on behalf of an actual COUNTRY, like Afghanistan, Iraq, or Canada. Or must be a part of an organized group with comnmanders, uniforms, clearly-displayed weapons, and "acting in accordance with the laws and customs of war."

The enemy must wear that nation's uniforms, so as to not blend into the populace and be clearly marked as a combatant.

They aren't, so the Geneva Convention doesn't apply to these bacteria.

Davad:

a matter of treaty obligation to the conflict against Al Qaeda.

You can't have a treaty between America and a non-nation. You must be a nation to sign a treaty, at least one that is binding in international law.

davad70

on Jun 29, 2006

I understand what you guys are saying, but did you actually read the opinion of the court that I posted?

(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.
(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.
(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

You can disagree with the decision all you want, but it's clearly the opinion of the court that the geneva Convention applies, in part...just as I said.

Bahu Virupaksha

on Jun 30, 2006

It is tempting to regard theSC verdict as a blow to the Bush Administration. I have not yet read the full text of the judgement as the US Supreme Court web site does not carry the full text. Yet I feel that the court has not adjudicated the constitutionality of the C in C's War Time powers. There is an implied rejection of the Bush premise that the US Constitution backs his interpretation of the C in C's powers. It has not struck down the constitution of the "Commissions": it has stated that the provisions of the US Law and Geneva Convention have to be followed, but has not laid down the conditions and provisions that would satify US constitutional jurisprudence. Yes, the designation of the prisoners as enemy combattants instead of POWs has been overruled.

Personally speaking, I do not feel that the whole of the Bush interpretation of powers of the US president to constitute and proceed with the trials has been decalred illegal. Since it is a 5/3 judegement there is a great deal of ambiguity as yet. I will read the text when it is availbel.

The knee jerk reaction of Bush is to legilate into existence his interpretation of the powers of the C in C to create such military tribunals. Politiclly such a move will be disastraous and will not pass judicial muster.

Bahu Virupaksha

on Jun 30, 2006

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).

You have hit the nail on the head. The extraordinaray redition when contested in Court will be tried on the bais of this judgement and you have quite rightly said that the whole program will be declared illegal, on the bais of this judgement. Hence this verdict has far reaching consequences.

Island Dog

on Jun 30, 2006

Isn't it intersting that the liberals have been silent, until a case comes out in favor of terrorist rights? Now they just can't wait to get in and defend the decision.

Bahu Virupaksha

on Jun 30, 2006

Nothing will satisfy these anti-america-at-any-cost cretins other than the complete dismantlement of Gitmo and first class tickets home for all the detainees, preferably with a couple of million in their bank accounts for 'damages'

I do think the issue is a LIBERAL vs CONSERVATIVE one at all. What is at stake here is the legality of a certain course of action taken by the President invoking his powers as C in C, presumably because USA is at war. The SC of the US has not declared the Bush Admin actions as illegal and unconstitutional: it has said that the USA must conform to both domestic legal requirements and the Geneva convention to which USA is a signatory. In fact liberals seem to think that the court verdict is a defeat for the President: that is most certainly not the case. And conservatives believe that the verdict provides an easy way out by legislating a hybrid criminal and military system. Politically this will not be easy. So really there is nothing for both to crow about.

singrdave

on Jun 30, 2006

Isn't it intersting that the liberals have been silent, until a case comes out in favor of terrorist rights? Now they just can't wait to get in and defend the decision.

I do think the issue is a LIBERAL vs CONSERVATIVE one at all.

You're right, it's not lib. v conservative for me, either. But some see this as poking holes in the hull of the USS Bush. And that's what irritates: people (or parties) seizing the political advantage at any opportunity.

Dr Guy

on Jun 30, 2006

You're right, it's not lib. v conservative for me, either

No, but nancy Pelosi is trying to make it one.

drmiler

on Jul 03, 2006

I understand what you guys are saying, but did you actually read the opinion of the court that I posted?

Have "you" actually been paying attention? The US court has ABSOLUTELY NO JURISDICTION over the geneva conventions!

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