NYT on Gitmo

[spindrifter]

After Ruling, Uncertainty Looms at Guantánamo

By TIM GOLDEN
Published: June 30, 2006

<snip>

"It appears to be about as broad a holding as you could imagine," said one administration lawyer, who insisted on anonymity because he was not authorized to discuss the ruling. "It's very broad, it's very significant, and it's a slam."

<snip>

"What the decision says is that the government cannot hold these prisoners lawlessly," said Joseph Margulies, a lawyer with the MacArthur Justice Center in Chicago who has defended one of the military commission defendants and is the author of a new book, "Guantánamo and the Abuse of Presidential Power."

"It is now incumbent on the government to come into federal court and demonstrate the lawfulness of the detentions," Mr. Margulies said. "It cannot hold people in conditions that are cruel and degrading. It cannot apply coercive interrogation techniques."

<snip>

In his majority opinion, Justice John Paul Stevens said that the United States was legally bound by Common Article 3, as the provision is known (it is common to all four Geneva Conventions). He said the article "affords some minimal protection" to detainees even when the forces they represent are not signatories to the conventions themselves.

<snip>

http://www.nytimes.com/2006/06/30/washington/30gitmo.html?hp&ex=1151640000&en=08b8cb725164ea86&ei=5094&partner=homepage

++++++++++

Not a good article to snip from--there are many interesting paragraphs--too many for a DU posting.

[rusty charly]

1. Court's Ruling Is Likely to Force Negotiations Over Presidential Power

As seen by Mr. Bush's critics, the court has finally reined in an executive who used the Sept. 11 attacks as a justification — or an excuse — to tilt the balance of power decidedly toward the White House.

"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."

Some allies of Mr. Bush reacted bitterly on Thursday, asserting that it was the court, rather than Mr. Bush, that had overreacted.

http://www.nytimes.com/2006/06/30/washington/30assess.html

"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford A. Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."

[spindrifter]

2. I am becoming more and more convinced that

this "time of war" justification for unprecedented growth of Executive Powers is a sham. The war was simply an excuse for the power grab and the weak willies in Congress are afraid of the war word, above all.

[papau]

4. "war" on terrorists is not a war any more than war on drugs is a war

there is no one to make peace with.

this is a police action.

[papau]

3. USSC says President broke the law - Reagan's treason on Boland was

ignored by media because USSC had not ruled on Boland Amendment.

Now on Bush treason the USSC has ruled.

Now can we get the media to start discussing impeachment? - Or does Bush get a do over?

Or can everyone ignore the law until the USSC rules - and if it rules against you is the rule then that only future braking of that law counts - the past law breaking gets a pass because you weren't certain it was an allowed law?

I do not recall the law working that way - but I bet the media will sell that idea to anyone that tries to say Bush broke the law.

[Biernuts]

6. But he hadn't tried him yet - so no law was broken

All the court poceedings were to detemine if he could try him by commission/tribunal. The answer is no, unless you first get specific congressional authoriation, because mere "conspiracy" is not a war crime. The opinion also says he can be tried by court martial, or by a civilian court.

If, in the face of the ruling, he went ahead with the trial by tribunal, then THAT would be actionable. BTW, I find that highly unlikely.

[Biernuts]

5. Haven't read the ruling, but the evening news said one option is

to not try them, just hold them until the war is over.

When WWII ended, war crime trials in Europe tended to be international. In the Pacific theater, they tended to be US only. As I read In Re Yamishita, he was condemned by a US only war crimes tribunal that was constituted without any special legislation by congress - the USSC cited WWI era authorities. <http://64.233.161.104/search?q=cache:Fp-4IfdVXT0J:www.law.uchicago.edu/tribunals/docs/yamvsty.pdf+in+re+yamashita&hl=en&gl=us&ct=clnk&cd=3>

Guess precedent (Stare Decises) ain't all it's cracked up to be. It was Stevens, Bryer, Ginsburg, Kennedy and Souter who voted against precedent while Thomas, Scalia and Alito voted to uphold it. Roberts recused himself. <http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf>

[hootinholler]

10. Your cites are moot in this case.

The WWI citation is pre ratification of Geneva Accords, and therefore not relevent. Geneva occured after the war crimes trials of WWII, which renders Yamishita a poor citation at best.

The question really boiled down to "is Geneva applicable?" The court rightfully said yes, it is.

-Hoot

[Biernuts]

11. You are right on the timing of course. The questions I have, however,

is what is the incentive to act as a legal combtant (Taliban), and, what are the disinentives to act as illegal combatants (Al Qaeda). If they both enjoy the same rights, there is no reason to ensure compliance with the laws of armed combat.

Even more importantly - where is the outrage when our soldiers are not treated IAW the 1949 Geneva conventions?

[hootinholler]

12. When you yield the high ground...

You shouldn't complain about getting whipped.

IOW, it *doesn't matter* what the other guys do, we are either a nation of law or not.

-Hoot

[hopeisaplace]

7. what "3" Justices said "ok-doke-kee"? anyone know?

thanks if you do.

[Biernuts]

8. It's not a simple ruling - 180 pages (.pdf) covering multiple

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

The issue with the most publicity: Does Congress need to authorize trial by tribunal/commission?

Roberts - Recuses himself (because he ruled on this case while sitting on the appeals court)

Yes - Stevens (wrote opinion) Souter, Ginsburg, Kennedy & Breyer concurring in part

No - Thomas, Scalia & Alito all filed separate dissents (meaning that the reasons they disagreed with opinion varied from justice to justice

Like I said, it's complex - but the court said the government has several options, including
1. Trying them by military court martial
2. Trying them in civilian court
3. Trying them by tribunal if Congress authorizes it

Interesting note for anyone that believes military defense counsel don't represent their clients well - this case exists only because of the motions filed by military defense counsel assigned to these detainees.

[hopeisaplace]

13. thank you :)

[enough]

9. k&r