Supreme Court Blocks War Crime Tribunals at Gitmo!

[MichaeltheGreat]

Originally posted by Arrian
I don't like the way the Admin has handled Gitmo, but any sane person has to acknowledge that this situation is something that anyone (perhaps other than a fascist or a libertarian) would struggle with.

They aren't PoWs. They're not really civilian criminals either, though, are they? It's not cut-and-dried.

Like I said, I don't like the way they've handled it, and I would've done things differently, but I doubt my way would've been perfect either.

-Arrian

They are presumptive PoWs under the Geneva Convention, until a competent tribunal determines otherwise - and that's something that Bushy never bothered with. It would have been real simple to have a tribunal set up under the same principles as a General Court Martial to hear evidence on PoW vs. unlawful combatant status, and the GC allows for that.

Then it would have been legally possible to try those who are found to be unlawful combatants by a tribunal process functionally identical to the General Court Martial process, for any acts violating the UCMJ. We could have had proper trials, convictions, mandatory appeals and executions, if warranted, by this point.

Instead, Bush wanted to push the limits (and well beyond) of his assumed powers, and let Rummy make unilateral blanket determinations of prisoner status, and then to set up a whole separate tribunal system with its own rules, without any authority whatsoever.

At least we now know we have two functioning branches of government.

[PLATO]

No Big Deal....Congress will soon acede to the tribunals.

It is nice that SCOTUS still wants the Congress involved in Government though!

[MichaeltheGreat]

Originally posted by DinoDoc
Is this not custodial in nature? Won't there be speedy trial issues to deal with? Is it really a crime to be fighting the US military on the battlefield of a foreign country? Will we have to provide lawyers during interrogations?

No, yes, maybe*, and interrogations are limited** by the GC unless/until unlawful combatant status is determined.

* Since al Qaeda has conducted operations in the US, al Qaeda members could be prosecuted under Federal conspiracy and RICO statutes in the regular judicial system, and any unlawful combatant can be tried through the military justice system (or an equivalent tribunal system with the same substantive rules) for individual violations of the UCMJ, or through international tribunals under crimes against humanity statutes. Otherwise, if we choose to recognize al Qaeda as a hostile power engaged in war, we can detain al Qaeda members for the duration of hostilities, subject to the rules for the treatment (including non-interrogation) of prisoners of war.


** The limits aren't really defined clearly - obviously, interrogation happens in the field, and early in the prisoner detention process, and when a prisoner is taken under conditions which allow for a reasonable presumption of unlawful combatant status, the prisoner's "rights" are a whole lot more vague.

[Arrian]

Originally posted by MichaeltheGreat


They are presumptive PoWs under the Geneva Convention, until a competent tribunal determines otherwise - and that's something that Bushy never bothered with. It would have been real simple to have a tribunal set up under the same principles as a General Court Martial to hear evidence on PoW vs. unlawful combatant status, and the GC allows for that.

Then it would have been legally possible to try those who are found to be unlawful combatants by a tribunal process functionally identical to the General Court Martial process, for any acts violating the UCMJ. We could have had proper trials, convictions, mandatory appeals and executions, if warranted, by this point.

Instead, Bush wanted to push the limits (and well beyond) of his assumed powers, and let Rummy make unilateral blanket determinations of prisoner status, and then to set up a whole separate tribunal system with its own rules, without any authority whatsoever.

At least we now know we have two functioning branches of government.

I don't disagree with anything you said there until the last sentence. Congress is functioning?

-Arrian

[MichaeltheGreat]

No - SCOTUS decided to step up to the plate. Congress is still busy with the real issue that is important to our very survival as a God-fearing, all-powerful empire - hordes of brown illegal immigrant flag burning fudgepackers who want to destroy marriage.

[DinoDoc]

Originally posted by MichaeltheGreat
No,

So it's just an extended vacation then. I fail to see what the problem is then. People would pay good money to live at a tropical island resort.

yes,

How would you get around such issues short of simply sending them on their way which I presume is a non-starter.

maybe*,

On what basis would those laws apply? Is simply being a member enough to get a conviction under such laws?

and interrogations are limited** by the GC unless/until unlawful combatant status is determined.

Well if we insist on trying them and military tribunals are out with SCOTUS saying that we should treat them like any other criminal, why shouldn't lawyers be provided before an interrogation starts?

[Imran Siddiqui]

with SCOTUS saying that we should treat them like any other criminal

Where did they say that?

AFAIK, regular criminals aren't subject to the UCMJ in their trials.

[DinoDoc]

I'm faily certain that even soldiers have speedy trial protection and access to a lawyer at some point before trial. Besides military tribunals got thrown out according to your article.

[Imran Siddiqui]

Originally posted by DinoDoc
I'm faily certain that even soldiers have speedy trial protection and access to a lawyer at some point before trial. Besides military tribunals got thrown out according to your article.

The military tribunals as constituted! That means the ones that Bush created to try the accused, which were not under UCMJ, without any of the protections. Hamdan acknowledged that he could be tried under the UCMJ and that was not at issue in the case.

And why shouldn't the Gitmo prisoners get a speedy trial and access to a lawyer?

[DinoDoc]

/me wonders why people ignore his questions and then expect him to answer thiers. Especially when they answered one to his satisfaction.

[MichaeltheGreat]

Originally posted by DinoDoc
I'm faily certain that even soldiers have speedy trial protection and access to a lawyer at some point before trial. Besides military tribunals got thrown out according to your article.

Speedy trial protections don't mean that you have to go in a matter of months. The argument (from an appellant unlawful combatant detainee) would be moot anyway if the basic conditions of confinement were consistent with GC standards for PoW detainees, and the appellant wouldn't have been subject to release or parole due to ongoing hostilities. It's a bit different if the alternative to detention is unconditional freedom.

The military tribunals that were thrown out were the specific system proposed by Bushy/Rummy, not any future tribunals.

Besides, a speedy trial gets you in front of a set of speedy bullets, so what's the problem?

[DanS]

I have similar qualms about this as DinoDoc.

[MichaeltheGreat]

Originally posted by DinoDoc
So it's just an extended vacation then. I fail to see what the problem is then. People would pay good money to live at a tropical island resort.

It's not a custodial arrest. A normal person/criminal has a presumptive right to wander around freely, unless subjected to arrest by a sworn peace officer. Once that arrest becomes custodial (a traffic stop is a technical arrest, since you're not free to drive off), then Miranda kicks in.

An enemy in a theater of battle doesn't have any presumptive rights of a civilian in the US. What rights he/she has are governed by international conventions and the laws and customs of warfare.

How would you get around such issues short of simply sending them on their way which I presume is a non-starter.

You have a right to detain them as long as hostilities are on-going. The only issue is little details like the right to continue interrogation, or subsequently put them up against a wall for specific crimes.

On what basis would those laws apply? Is simply being a member enough to get a conviction under such laws?

For RICO laws, yes, membership is enough. For conspiracy laws, you would have to have evidence of at least knowledge of any planned illegal act, and someone, somewhere, (not necessarily the defendant, or even with the knowledge of the defendant), carrying out any single overt act in furtherance of the conspiracy.

So anyone with any prior knowledge, of any level of detail, of the 9/11 attacks, could be convicted of conspiracy in relation to those acts.

Well if we insist on trying them and military tribunals are out with SCOTUS saying that we should treat them like any other criminal, why shouldn't lawyers be provided before an interrogation starts?

Interrogations for purposes of intelligence gathering, and interrogations for evidentiary purposes in anticipation of criminal prosecution of the person interrogated are two entirely different things. Once you get into the latter, the right to counsel attaches, OR, you can't use the results of that interrogation or its derivatives as evidence (subject to arguments of inevitable discovery and subject to free waiver of the right to counsel)

[DinoDoc]

Well Ok then.

[MrFun]

Constitutional laws and fair trials are stupid -- throw rocks at them.