Supreme Court Ruling - Gitmo detainees can appeal to U.S. court system

[DaddyTorgo]

Can't believe there's no thread on this yet!

http://www.cnn.com/2008/US/06/12/scotus/index.html

WASHINGTON (CNN) -- Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.

The decision marks another legal blow to the Bush administration's war on terrorism policies.
The 5-4 vote reflects the divide over how much legal autonomy the U.S. military should have to prosecute about 270 prisoners, some of whom have been held for more than six years without charges. Fourteen of them are alleged to be top al Qaeda figures.
Writing for the majority, Justice Anthony Kennedy said, "the laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system reconciled within the framework of the law."
Kennedy, the court's swing vote, was supported by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, generally considered the liberal contingent.

The Bush administration has urged the high court not to get involved in the broader appeals, saying the federal judiciary has no authority to hear such matters.
Four justices agreed. In a sharp dissent, read in part from the bench, Justice Antonin Scalia said the majority "warps our Constitution."
The "nation will live to regret what the court has done today," Scalia said.

Discuss!

[RedKingGold]

Tough call. On a micro level, I can get with all of the "respect that individuals under American control have rights....blah, blah, blah" However, on a macro level, the "Living Constitution" argument (i.e. Constitution evolves with time) is getting a little scary.

However, the decision today was not too surprising considering the trend of Court thinking towards these issues.

[molson]

Inevitable, but really, really bizzare. Our Supreme Court just gave Habeas Corpus rights to our enemies in an ongoing war. They're asking the militiary to publically provide wartime intelligence to justify detaining war prisoners.

The result will be more terrorists running around. Scalia pointed out how many freed Gitmo detainees have gone on to commit terrorist acts - these are guys the government released on their own terms, based on the current standards, before this legal hurdle.

I don't get it. It's dangerous stuff. I don't know how a military conducts its duties while trying to build habeas defeneses and criminal cases at the same time. They'd have to fly military personnel back and forth for court appearances. But they won't do that. The long term solution is to hand the prisoners to a regional ally. They'll wish they were at Gitmo.

Al-Qaeda must find this hillarious. They're probably scrambling to get Westlaw accounts to see what other constitutional rights they have.

[RomaGoth]

I am no fan of the Bush administration, but this decision makes me physically ill. I served in the Navy and thus maybe I am somewhat biased, but I just don't understand how any self-respecting American citizen can allow our enemies the same rights that we have as citizens. Would they give us the same treatment? Of course not. They kill us on sight.

I am becoming more and more worried for my children's future.

[molson]

I'm sure some people have some sypmathy for the detainees at Gitmo and I understand that to a degree. But providing Constitutional rights is not the right remedy.

[rowech]

I guess I don't understand how these guys aren't considered POWs. If we had declared war on someone they would be. The problem is we don't have a country to declare war against.

[RomaGoth]

Originally Posted by molson

I'm sure some people have some sypmathy for the detainees at Gitmo and I understand that to a degree. But providing Constitutional rights is not the right remedy.

I have no sympathy for those who seek to kill my family and destroy my way of life. For those who do, please move to the middle east, I am sure they will welcome you with open arms. Abusing someone just for the sake of abuse is of course wrong, but detaining someone because they are a threat to your existence is completely different.

I agree with you, this is not the right remedy. I could go on and on about this type of stuff, the entire state of the world right now frustrates me. But I will spare all of you that lecture.

[molson]

Originally Posted by RomaGoth

I have no sympathy for those who seek to kill my family and destroy my way of life. For those who do, please move to the middle east, I am sure they will welcome you with open arms. Abusing someone just for the sake of abuse is of course wrong, but detaining someone because they are a threat to your existence is completely different.

I agree with you, this is not the right remedy. I could go on and on about this type of stuff, the entire state of the world right now frustrates me. But I will spare all of you that lecture.

Well, what they would say is, "you don't know who's a terrorist and who isn't, you might have innocent people locked up there". Which is true. But that's kind of Scalia's point - that's exactly why it's impossible to prosecute/defend habeas actions. I have zero problem with some amount of "collateral incarceration" if it exists. All the more incentive to stay away from trouble.

[cartman]

The ruling in no way gives them the same rights as an American citizen. The ruling was limited to habeas corpus petitions. The administration painted themselves into a corner with their actions. They were hellbent to create a legal limbo, where no laws at all applied. If they are so certain these people are dangerous and deserve to be locked up, a habeas corpus petition sets a pretty low bar to keep people in custody. Based on what we've been told about these people, the habeas corpus hearing should be a slam dunk for the government. Prove there is a reason you are keeping them in custody. If they would have just held these people under the Geneva Convention, instead of insisting the detainees were not eligible, then there would have been no review possible by the Supreme Court.

[molson]

Originally Posted by cartman

Prove there is a reason you are keeping them in custody.

What if that's sensitive information?

Though I'm sure if it's too sensitive they'll just hide him away where he doesn't have access to the courts.

It's kind of surreal to see old guys in robes telling the miltary what to do. It's actually pretty cool that our country is that strong.

[Flasch186]

The fact that Bush said that Geneva didnt necessary apply because their not soldiers but enemy combatants seemed to me to be the start of skirting the laws as they stood. So now it seems that is catching up to them. They couldve held them for as long as the "war on terror" was going on but had to follow the Geneva Conventions but they chose the other card to play.

no one ever claimed the admin were legal geniuses they just needed to be able to delay decisions for 8 years.

[cartman]

Originally Posted by molson

What if that's sensitive information?

Then the courts must treat it as such, as they do in other habeas corpus hearings that involve ongoing investigations.

[John Galt]

Originally Posted by molson

Inevitable, but really, really bizzare. Our Supreme Court just gave Habeas Corpus rights to our enemies in an ongoing war. They're asking the militiary to publically provide wartime intelligence to justify detaining war prisoners.

I don't get it. It's dangerous stuff. I don't know how a military conducts its duties while trying to build habeas defeneses and criminal cases at the same time. They'd have to fly military personnel back and forth for court appearances. But they won't do that. The long term solution is to hand the prisoners to a regional ally. They'll wish they were at Gitmo.

Originally Posted by RomaGoth

I served in the Navy and thus maybe I am somewhat biased, but I just don't understand how any self-respecting American citizen can allow our enemies the same rights that we have as citizens. Would they give us the same treatment?

Under no fair reading of the opinion are any of these statements true.

[molson]

Originally Posted by John Galt

Under no fair reading of the opinion are any of these statements true.

I have no doubts about your legal expertease (and would love to hear you elaborate), but I wonder about the practicalities of war and how the supreme court can undertand them.

I haven't read the whole opinion yet - went right to the dissent

[cartman]

Originally Posted by molson

I have no doubts about your legal expertease (and would love to hear you elaborate), but I wonder about the practicalities of war and how the supreme court can undertand them.

But that's the thing. By excluding the coverage of the Geneva Convention, the administration took the wartime considerations out of play.

[Drake]

All I can say is: It's about time.

[John Galt]

Originally Posted by cartman

But that's the thing. By excluding the coverage of the Geneva Convention, the administration took the wartime considerations out of play.

That's not really true, either. The declaration of war actually has little to do with this case. Instead, the basic question is whether habeas corpus applies to persons held in territory over which the US has de facto sovereignty. It has no application to the battlefield or battlefield prisons. It might have relevance to a few other odd places (like US embassies, places like the Panama Canal when the US had control, etc.). The question had never been addressed by the court. If Congress and the President disagree with the decision, they are free to pass a law "suspending" habeas corpus for those persons in the prison under the Suspension Clause of the Constitution. To do so would require that a declaration that the US is under invasion or rebellion, but if they did, I doubt the Supreme Court would intervene.

And for those who are Scalia fans and believe that judicial activism is some horrible thing plaguing our country, then Scalia's dissent presents a problem. This was a par of the beginning of his dissent:

America is at war with radical Islamists.... The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Yeah, that has a lot to do with the law.

[molson]

Originally Posted by John Galt

Instead, the basic question is whether habeas corpus applies to persons held in territory over which the US has de facto sovereignty.

So the only real effect may be that Gitmo gets shut down and prisoners are kept under less favorable conditions closer to the battlefield?

[molson]

Originally Posted by John Galt

And for those who are Scalia fans and believe that judicial activism is some horrible thing plaguing our country, then Scalia's dissent presents a problem. This was a par of the beginning of his dissent:

America is at war with radical Islamists.... The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Yeah, that has a lot to do with the law.

To be fair, he's not making law in a dissent. He just loves to be quoted in newspapers.

[cartman]

Originally Posted by John Galt

That's not really true, either. The declaration of war actually has little to do with this case. Instead, the basic question is whether habeas corpus applies to persons held in territory over which the US has de facto sovereignty. It has no application to the battlefield or battlefield prisons. It might have relevance to a few other odd places (like US embassies, places like the Panama Canal when the US had control, etc.). The question had never been addressed by the court. If Congress and the President disagree with the decision, they are free to pass a law "suspending" habeas corpus for those persons in the prison under the Suspension Clause of the Constitution. To do so would require that a declaration that the US is under invasion or rebellion, but if they did, I doubt the Supreme Court would intervene.

Gotcha. I wasn't looking at it from that angle, and I see your point.

[John Galt]

Originally Posted by molson

So the only real effect may be that Gitmo gets shut down and prisoners are kept under less favorable conditions closer to the battlefield?

If they had put the prisoners in Afghanistan or Iraq to begin with, the opinion today wouldn't apply. However, now that they are in Gitmo, they probably can't be moved until they get to exercise their habeas rights. The administration this problem by putting them at the Cuba base. It won't matter anyway if McCain or Obama are true to their word - they both say they will close down Gitmo and move the prisoners to the U.S.

[DaddyTorgo]

Originally Posted by cartman

The ruling in no way gives them the same rights as an American citizen. The ruling was limited to habeas corpus petitions. The administration painted themselves into a corner with their actions. They were hellbent to create a legal limbo, where no laws at all applied. If they are so certain these people are dangerous and deserve to be locked up, a habeas corpus petition sets a pretty low bar to keep people in custody. Based on what we've been told about these people, the habeas corpus hearing should be a slam dunk for the government. Prove there is a reason you are keeping them in custody. If they would have just held these people under the Geneva Convention, instead of insisting the detainees were not eligible, then there would have been no review possible by the Supreme Court.

but if they did that they couldn't have their fun with waterboarding, etc

[molson]

Originally Posted by Ronnie Dobbs2

How much power should we give to the federal government to fight a war that might never end?

A lot.

What are the alternatives? Putting legal roadblocks in place that make war itself more difficult? That's not what this case is about, but is that what public support for these kinds of decisions is about? We don't like the war so we want to try to help the other side where we can? (Again, that's not what today's decision is about, but I think that vibe from ultra-liberals sometimes.) Certainly if this was a popular war/president the public opinion would be different.

You could vote for another president. But once they're there, they need power.

[Buccaneer]

I like how they interjected (which I can't find now) Lincoln and his battles with the Peace Democrats regarding his suspension of the Great Writ and other unconstitutional acts. Those were "extraordinary times", were they not?

[rowech]

Originally Posted by Ronnie Dobbs2

This is an honest question: For those that are arguing that these are POWs and should be treated as such, do you have any fears of what then is essentially a completely open-ended war against non-nation that could conceivably go on for an extremely long time? How much power should we give to the federal government to fight a war that might never end? Do the parellels to 1984 give any of you pause? Endless war the reason for giving up rights (not this decision per se since whether these men have rights is up for debate, but the Patriot Act comes to mind) to an increasingly powerful federal government.

The war has been going on for decades and some would argue centuries. Lately though, only one side was fighting. The other side just sat around and took it on the chin over and over.

[JW]

I think Bush screwed up from the start by creating a unique status for those people and then housing them at GTMO. I think we should have treated them like POWs, with all the rights afforded POWs, from the start, even if you want to argue that technically they are not POWs. I think that would have placed us in a better position internationally and morally and legally.

[cartman]

Originally Posted by Buccaneer

I like how they interjected (which I can't find now) Lincoln and his battles with the Peace Democrats regarding his suspension of the Great Writ and other unconstitutional acts. Those were "extraordinary times", were they not?

Yes, those were extraordinary times, but the reason habeas corpus was suspended then was to stifle political dissent, because Lincoln didn't think that the civil courts in certain locations would convict the war protesters. When one of them, (I want to say Merriman) was arrested by the military, the Chief Justice at the time issued the habeas corpus writ that Lincoln and the military ignored. Afterwards, the court ruled that military trials were illegal in places where the civil courts were able to operate.

[Buccaneer]

Originally Posted by JW

I think Bush screwed up from the start by creating a unique status for those people and then housing them at GTMO. I think we should have treated them like POWs, with all the rights afforded POWs, from the start, even if you want to argue that technically they are not POWs. I think that would have placed us in a better position internationally and morally and legally.

+1

[ISiddiqui]

I applaud this ruling and, really, it's nobody's fault but the administration's. They wanted to create this legal limbo, so they wouldn't have to protect the prisoners under the Geneva Convention and do all sorts of shady crap (ie, torture). Now, the Supreme Court has stepped in and said, bull, if they are on US territory, they need some legal status, whether that be POW status or have the right for habeus petitions to determine if they should be there in the first place (I know if I was just some goat hearder who got snapped up and haven't been charged in 6 years, I may want to prove that fact).

[Dutch]

Originally Posted by JW

I think Bush screwed up from the start by creating a unique status for those people and then housing them at GTMO. I think we should have treated them like POWs, with all the rights afforded POWs, from the start, even if you want to argue that technically they are not POWs. I think that would have placed us in a better position internationally and morally and legally.

I do agree that the lifespan of Guantanamo is pretty much done. Relatively little information can be gleaned anymore from these unlawful combatants.

As for giving them POW status from the start, that would have been a huge mistake. A number of additional terrorists were picked up because of the information we obtained from them. Being a POW means you don't have to say shit.

Also, it would have been a huge mistake to leave these traitors in the hands of their local host nations. They would all have been tried and shot by now.

[Flasch186]

Originally Posted by Dutch

Being a POW means you don't have to say shit.

They dont have to say shit anyways, and it's been proven that under duress people will say anything, truth or lies, to stop the torture. Some of these airstrikes int he wilderness that we have to apologize for later when the "target" wasnt there and we killed a family couldve come from some BS info. Shit, you dont even have to be under duress to tell a lie, see: Ahmed Chalabi.

[flere-imsaho]

It's taken longer to bring Khalid Sheik Mohammad to trial than R. Kelly. The mind just boggles.

[Dutch]

Originally Posted by Flasch186

They dont have to say shit anyways, and it's been proven that under duress people will say anything, truth or lies, to stop the torture. Some of these airstrikes int he wilderness that we have to apologize for later when the "target" wasnt there and we killed a family couldve come from some BS info. Shit, you dont even have to be under duress to tell a lie, see: Ahmed Chalabi.

Interrogation teams are collecting a TON of information that has proven to be extremely reliable. And they aren't torturing anybody, most is done by or under the care and guidance of the regular US Military. What has been proven is that a lot of bad guys aren't going to do what they wanted to do because of information we received from other bad guys.

[molson]

Originally Posted by Dutch

Interrogation teams are collecting a TON of information that has proven to be extremely reliable. And they aren't torturing anybody, most is done by or under the care and guidance of the regular US Military. What has been proven is that a lot of bad guys aren't going to do what they wanted to do because of information we received from other bad guys.

It will never be 100% perfect, it's an inexact science, but I'm always so impressed by our military. It's not fair to make parallels to things like domestic criminal prosecutions or incarcerations, which more and more people do as these issues come up.

People always want to cite the mistakes in intelligence or anything that's less than 100% efficient and then at the same time want to complicate matters by involving civilian courts where ANYTHING can happen.

[molson]

Originally Posted by flere-imsaho

It's taken longer to bring Khalid Sheik Mohammad to trial than R. Kelly. The mind just boggles.

Kelly won't be executed after his trial's over, and he can't give us any useful information before then.

Mohammed is a worse villain than Bin Ladin. Some have argued for a civilian trial for him, which boggles my mind.

[Flasch186]

Originally Posted by Dutch

Interrogation teams are collecting a TON of information that has proven to be extremely reliable. And they aren't torturing anybody, most is done by or under the care and guidance of the regular US Military. What has been proven is that a lot of bad guys aren't going to do what they wanted to do because of information we received from other bad guys.

I have no doubt that information is gleaned, some good some bad but to use Waterboarding (which we admitted in a slip of the tongue) or other techniques that we agreed to label as torture when we signed on to Geneva, is wrong because we signed that. Waterboarding in and of itself, I haave no problem with it's usage or any other technique for that matter (results of info left out of the equation) but the hypocrisy of signing on to Geneva and then the debacle of denying than admitting, then mislabeling than miscategorizing said techniques is deplorable.

Unfortunately when you talk about results and the actions taken due to them you get mixed results. I agree and am sure that some events have been stopped due to some info but I am also sure that entire families of innocents worldwide have been eradicated due to misinformation on top of those that have been utter mistakes and bad aim.

How many families are expendable in the war on terror? That I dont know, and that number probably varies depending on who you ask.

[st.cronin]

Originally Posted by molson

Kelly won't be executed after his trial's over.

Which is really a shame.

[flere-imsaho]

Originally Posted by molson

Kelly won't be executed after his trial's over, and he can't give us any useful information before then.

That really wasn't my point, though.

KSM's trial should be open-and-shut easy. He both admits guilt and isn't interested in an insanity plea. Plus he's about as "high-value" as they come. There should be mountains of evidence on him, if Intelligence are doing their job.

I don't know where you're going with "getting useful information". You can still interrogate someone after they've been convicted. Just don't kill him. And anyway, we shouldn't be giving KSM the death penalty anyway since it's his stated aim to become a martyr. The worst possible punishment for him is life imprisonment.

So try him, convict him, and sentence him to life and continue to pump him for information (though I'm skeptical as to how much relevant information he has at this point).

To me, it doesn't seem to be rocket science.

[molson]

Originally Posted by flere-imsaho

That really wasn't my point, though.

KSM's trial should be open-and-shut easy. He both admits guilt and isn't interested in an insanity plea. Plus he's about as "high-value" as they come. There should be mountains of evidence on him, if Intelligence are doing their job.

I don't know where you're going with "getting useful information". You can still interrogate someone after they've been convicted. Just don't kill him. And anyway, we shouldn't be giving KSM the death penalty anyway since it's his stated aim to become a martyr. The worst possible punishment for him is life imprisonment.

So try him, convict him, and sentence him to life and continue to pump him for information (though I'm skeptical as to how much relevant information he has at this point).

To me, it doesn't seem to be rocket science.

I don't understand the military prosecution process as well as our own system. I know that it's completely different and it's not particularly meaningful to draw paralells.

So I don't understand why it takes so long to try a KSM, but I'm certainly not concerned about it and assume there's a damn good reason for it. I don't doubt that it can take years to prepare for a "trial" that involves hundreds of charges and thousands of victims. I would assume that the families of every single one of those victims have to be involved/informed to some capacity. Are you assuming that there's some kind of unjust motive? If not, what difference does it make? Why are you concerned about it? He's never going to be a free man again, under any scenerio.

[RomaGoth]

Originally Posted by Flasch186

I have no doubt that information is gleaned, some good some bad but to use Waterboarding (which we admitted in a slip of the tongue) or other techniques that we agreed to label as torture when we signed on to Geneva, is wrong because we signed that. Waterboarding in and of itself, I haave no problem with it's usage or any other technique for that matter (results of info left out of the equation) but the hypocrisy of signing on to Geneva and then the debacle of denying than admitting, then mislabeling than miscategorizing said techniques is deplorable.

Unfortunately when you talk about results and the actions taken due to them you get mixed results. I agree and am sure that some events have been stopped due to some info but I am also sure that entire families of innocents worldwide have been eradicated due to misinformation on top of those that have been utter mistakes and bad aim.

How many families are expendable in the war on terror? That I dont know, and that number probably varies depending on who you ask.

While I agree with what you are saying, I am hoping that we all remember the thousands of people that died on 9/11. They were also innocent people, and their families today are still suffering I am sure. My question is really this: why do some people here and in other "free" countries continue to believe that somehow the innocent Americans that die in terrorist attacks are less important than the innocent people that die in Iraq, Afghanistan, Jordan, Syria, etc..etc..? Not to mention the belief that our military personnel are monsters, yet when compared to the Islamic extremists, Vietcong, and North Koreans (amongst others), our soldiers actually show compassion. It just boggles my mind.

[duckman]

Originally Posted by Flasch186

I have no doubt that information is gleaned, some good some bad but to use Waterboarding (which we admitted in a slip of the tongue) or other techniques that we agreed to label as torture when we signed on to Geneva, is wrong because we signed that. Waterboarding in and of itself, I haave no problem with it's usage or any other technique for that matter (results of info left out of the equation) but the hypocrisy of signing on to Geneva and then the debacle of denying than admitting, then mislabeling than miscategorizing said techniques is deplorable.

Hey, dumbass, the US Military follows the US Army manual for interrogation. Guess what's not listed as a viable method of extracting information? That's right. Waterboarding.

The CIA uses waterboarding as method, but he was talking about the CIA. Work on that reading comprehension problem. k bye

[Flasch186]

duckman, Im sorry, when the military guys stand at the back of the room, hold prisoners in Military prisons but call in CIA interrogators to do the torturing (by their own definition), they're complicit. Just as if I send my son into the store to steal, I am too. Just as if one of my subs building a house screws up, it's on me to take responsibility for it. I am certain that that manual stopped the guy from torturing the puppy and kept Abu Gharaib from happening, or the thousands of other things that happen outside of training manuals in everything from corporations to military, oh wait.

Your boy Bush painted himself into this corner, no one but himself and Rumsfeld and the other idiots who played fast and loose with the law. I mean what moron calls on his own admin lawyer's to come up with interpretations of a law to get to the result he wants instead of relying on the law to craft the policy?

In regards to Roma's point above about the 9/11 families I agree that innocents dying is bad anywhere however I'd be willing to bet that in most wars each side considers themselves the victims and has the right to retaliate. That's probably why you'll always hear people say, "theyve been fighting for thousands of years." Neither side is right or wrong unless youre on one of the sides...then your side is right. The atrocities certainly happen on both sides but we shine a spotlight on our own when we use the term "good vs. evil" and "moral right" etc. I am an American so I want us to win the War on Terror just as bad as the next guy but I hope when it's all said and done we can say that we held the moral high ground.....unless of course their is a change in doctrine that says "fuck 'em all. We're going to kill 'em all and let god sort 'em out." Then if you support that, you support that and that's your right too.

[flere-imsaho]

Originally Posted by molson

I don't understand the military prosecution process as well as our own system. I know that it's completely different and it's not particularly meaningful to draw paralells.

I too am not interested in drawing parallels. My point is that any of the high-value targets should be such slam-dunk cases that they could have been turfed to even the stupidest civilian court ages ago and we still would have had convictions and by now have these turkeys wasting away at ADX Florence.

I don't doubt that it can take years to prepare for a "trial" that involves hundreds of charges and thousands of victims.

I can't imagine it's more complex than something like the Enron trial, not to mention that KSM and his co-conspirators admit guilt.

I would assume that the families of every single one of those victims have to be involved/informed to some capacity.

Why? And besides, if the U.S. military can inform and involve the families of over 4000 deceased soldiers in return & burial services over the past five years I'd imagine they (or some similar organization) can do the same for the families of the roughly 3000 9/11 victims in the same time frame (or less).

Are you assuming that there's some kind of unjust motive?

The best I can come up with is that Bush and his advisors didn't trust the court system to do their jobs and decided to try to make up their own court system from scratch. They also didn't trust Congress to work with them (although, ironically, Congress did work with them and has also gotten slapped down by the Supreme Court) to develop new procedures to deal with the issues raised by capturing and holding terrorists, so they just decided to ignore the Constitution.

Basically you have a small cabal of people deciding what's best for the country against the wishes of the other two branches of government (one of which is directly elected by citizens). And this isn't a slight difference of opinion, it's a complete 180.


This is what Bush should have done:

"Look, KSM and these other guys aren't like Timothy McVeigh or the Unabomber. They're connected to a large international network of terrorists. In the interest of national security, we need two outcomes that aren't necessarily afforded by normal criminal proceedings. One, we need to have a time period, post-capture, when we can interrogate these individuals to inform current intelligence, and we need to be able to continue these interrogations as necessary. Two, we need to make sure that these individuals are not inadvertently released from a maximum secure custody during and after their criminal trials. My administration plans to work closely with leaders in Congress and representatives from the Supreme Court over the next few weeks to work out a framework that will ensure these objectives but not compromise the fundamental principles upon which this country was founded."

If Bush had approached this problem this way, I'd be very surprised if a workable solution wasn't quickly developed and the last 7 years of wrangling was far behind us.

Why are you concerned about it? He's never going to be a free man again, under any scenerio.

Let's be clear: I could not care less what happens to KSM and his cronies. My recommendation is that they not get the death penalty solely because that's exactly what they want and what their supporters worldwide want. Let them rot in prison.

I have two concerns:

One, Bush created a stupid legal mess where one didn't need to be created. As a yardstick for how off-base Bush and his legal team were, remember that even Antonin Scalia disagreed with them (in Hamdi vs. Rumsfeld). Dude, when even Antonin Scalia disagrees with a Conservative President, that President is just plain wrong.

Two, as we know now, the vast majority of Gitmo detainees were taxi drivers, farmers, or whatever - guys who had the misfortune to be brown and in the wrong place at the wrong time. As this Souter states most specifically in this decision, it's simply inexcusable to lock people up like this for this amount of time with absolutely no movement towards dispositioning them.

[Dutch]

Two, as we know now, the vast majority of Gitmo detainees were taxi drivers, farmers, or whatever - guys who had the misfortune to be brown and in the wrong place at the wrong time.

A vast majority of the people detained from Iraq and Afghanistan are brown? Are you fucking kidding me? Really? No way I vote for Bush had I realized this kind of shit was going on.

[flere-imsaho]

I think you focused on the wrong part of the sentence, Dutch.

Very AP of you, to be honest.

[flere-imsaho]

Originally Posted by molson

What if that's sensitive information?

Not to pick on you, but this seems to be part of the same argument Scalia makes.

My response if that if we could try and convict Aldrich Ames, Robert Hanssen and other Cold War spies without giving up national secrets, I'm sure we'll be able to do the same with these guys.

Heck one spy, Clyde Lee Conrad, was even convicted in a German court without further detriment to national security secrets.

[Dutch]

Originally Posted by flere-imsaho

Not to pick on you, but this seems to be part of the same argument Scalia makes.

My response if that if we could try and convict Aldrich Ames, Robert Hanssen and other Cold War spies without giving up national secrets, I'm sure we'll be able to do the same with these guys.

Heck one spy, Clyde Lee Conrad, was even convicted in a German court without further detriment to national security secrets.

It's not our secrets we should be worried about. When we convicted those clowns, we dimed out the Soviets. It was pretty obvious who they worked for and it was also pretty obvious we couldn't really do anything about it.

We are in a different situation where information we get now can be relayed back to the war zone to help us find the enemy and capture or kill him. My concern is that this goes away in a public setting.

But anyway, the reality is that I think the folks remaining at Gitmo don't provide any more value and they should be tried and convicted as being unlawful combatants in a battlefield. Or set free and returned to their host country and let their governments be the judge of them.

[SackAttack]

Originally Posted by Dutch

they should be tried and convicted as being unlawful combatants in a battlefield.

I'm sorry, but that particular turn of phrase is the biggest load of bullshit I have ever heard.

"Unlawful combatants"? Please. The only things the Geneva Convention denies that status for are mercenaries and children.

Sure, Congress passed a law defining "unlawful combatants" in 2006, but y'know, unless I'm mistaken, the Iraq and Afghanistan conficts had been underway for sometime by then. The Constitution, in the clause immediately following that of Habeas Corpus, says that no ex post facto law shall be passed. Unlike the habeas clause, the ex post facto clause includes no exceptions. No law may be passed which retroactively criminalizes an action.

So even under the most generous interpretation of the status of the detainees, none detained prior to 2006 can Constitutionally be considered as "unlawful combatants."

Even leaving that aside, it's either a battlefield, or it's not. If it's a battlefield, and they're raising arms against you, how in the hell is that "unlawful combatants"? Either you're fighting a war, in which case they're lawful combatants and should be treated as such, pursuant to the Geneva Convention, or you're prosecuting a police action, in which case there's no damn battlefield, and standard criminal procedures ought to apply.

[NoMyths]

McCain attacks Guantanamo ruling, calling it "one of the worst decisions in the history of the country"

One of the worst decisions in the history of the country? Really?

Full Text:
McCain attacks Guantánamo ruling
By Andrew Ward and Demetri Sevastopulo in Washington
Published: June 13 2008 21:44 | Last updated: June 13 2008 21:44

John McCain on Friday described the decision by the Supreme Court to allow Guantánamo Bay prisoners to challenge their detention in US courts as “one of the worst decisions in the history of this country”.

The Republican presidential candidate said he agreed with the four dissenting justices on the nine-member court that foreign fighters held at the detention camp were not entitled to the rights of US citizens.

He criticised Barack Obama, his Democratic opponent, for supporting the decision and said it highlighted the importance of nominating conservative judges to the Supreme Court. His remarks represented a hardening of his position from his more moderate initial response to the ruling on Thursday, signalling a strategic decision by the McCain campaign to make it an election issue.

Mr McCain’s stance appeared designed to demonstrate his toughness on national security, while casting Mr Obama as soft on terrorists. It also looked calculated to spark debate on the future of the Supreme Court – one of the most important election issues for many conservative voters.

But his support for President George W. Bush’s position on Guantánamo risked undermining his appeal among moderates and reinforcing his association with the unpopular president.

Mr McCain, who spent five years as a prisoner of war in Vietnam, had previously sought to distance himself from Mr Bush on the treatment of detainees, arguing for Guantánamo to be closed and torture to be banned. He said he stood by those positions on Friday but insisted the Supreme Court ruling would weaken national security. “These are enemy combatants, these are people who are not citizens, they are not and never have been given the rights that the citizens of this country have,” he said. “Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that.”

The debate surrounding Guantánamo has been a complex issue for Mr McCain, a former navy pilot tortured as a prisoner of war in Vietnam. While Mr McCain has been one of the loudest critics of the Bush administration over interrogation policies, he has supported legislation that stripped prisoners at Guantánamo of habeas corpus, the right to challenge their detention in federal court.

Tom Malinowski, Washington advocacy director at Human Rights Watch, said the Arizona senator’s willingness to support the legislation contradicts his overall position on Guantánamo.

“To this day, he strongly believes Guantánamo has hurt the US and should be closed,” said Mr Malinowski. “And yet he has not been able to distance himself from the principle [of] detention without charge.”

[Flasch186]

Not to get sidetracked but I think this decision by McCain, if signalling the direction his camp intends to take, will spark the demise of any real shot he had at contending for the Presidency. He is just making it so easy for Obama's camp to lump him in with Bush that it's unreal.