"Supreme Court blocks war crimes trials"

[erik_kosberg]

AP story here

The Supreme Court ruled today that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti-terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

"All in all, a good day for the rule of law."

[realtraveller]

From a cursory reading of parts of the opinion and commentary, it looks as though:

1. The 10 detainees charged can be tried before a regular military court martial; or

2. The charges could be dropped and the detainees can be kept as POW's until the end of the war.

[erik_kosberg]

"Hamdan Summary -- And HUGE News"

...the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, 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.

[erik_kosberg]

realtraveller said

The 10 detainees charged can be tried before a regular military court martial

Regular military court martials are for cases involving members of our military.

[erik_kosberg]

"After a Supreme Court decision overruling war crimes trials for Guantanamo Bay detainees, President Bush suggested Thursday he would seek Congress' approval to proceed with trying terrorism suspects before military tribunals."

The poor man just doesn't know how to admit defeat.

[realtraveller]

Actually, seeking the approval of Congress for the military tribunals is exactly the what the SCOTUS said to do in the holding of the case.

And it has the political effect of creating another "who is tougher on terrorists" issue for the midterm elections.

[realtraveller]

erik_kosberg said

Regular military court martials are for cases involving members of our military.

Not according to the excerts from the opinion at scotusblog. The court said that the rules of court martials should be applied to any trial of Hamdan.

[erik_kosberg]

"The first pillar was the government could hold people without any hearing. The 2004 Supreme Court ruling struck that down. The second was the military commissions were the way forward. Now that has gone, too."

I'm not sure how this can be spun as anything but a huge loss for the administration, but no doubt some kind of consensus spin will emerge over the next few days.

[realtraveller]

Read the opinion rather than the news media attempts to explain it. The court said that the rules under the Uniform Code of Military Justice could be applied to the detainees. And it said that if the President wanted to try the detainees under a different procedure, he could ask Congress to enact such a law. That's not spin. That's a plain reading of the opinion.

[AuntieEmma[$]]

This shows the system still works. The Executive makes a power grab, and the Court pulls them back and restores balance.

Sure took a long time, though.

[conradd]

I'd have no problem with this ruling if Al Qaeda observed the Geneva Convention too. They don't. At least the SC affirmed the government's authority to hold Hamden and the others for the duration of hostilities.

[pippadaisy[$]]

Deb, if our government stoops to that level, what do we have left? What makes us different?

[conradd]

I'm attending a funeral on Saturday for a young Oregon man who went to Iraq to make a difference. He was brutally murdered, his head cut off, his body carved up by monsters who are hellbent on preventing a democratic government in Iraq despite what the ordinary Iraqi citizens have expressed their longing to put into place by voting 3 different times. Compare the multitude of incidents like that with putting panties on the heads of inmates or playing Christina Aguilera music . . . some of the incidents that have been held up as proof of our brutality. We provide copies of the Koran, provide culture appropriate food, make sure that inmates are free to pray 5 times a day. Yes, abuses have happened and troops have faced charges. Because we're civilized and because we do observe Geneva rules.

The test of morality is not that there are abuses. It's what happens following the abuse. One side delights in it. The other seeks to correct it and prevent it from happening again. Are you telling me that you don't see a difference? Comparing how we wage war with the insurgency that indiscriminately kills both military and civilian targets isn't moral equivalence. It's moral paralysis.

[erik_kosberg]

realtraveller said

The charges could be dropped and the detainees can be kept as POW's until the end of the war.

That smacks too much of reality-based thinking, therefore it's a non-starter for Bushco. They've painted themselves in a corner by consistently and forcefully insisting that these folks are not reality-based prisoners of war but are "enemy combatants" subject to military tribunals. But the folks in this administration are past masters at saying something and then saying that they never said that so I suppose that it's possible that they might go the but of course they're prisoners of war route. We have always been at war with Eastasia.

realtraveller said

Actually, seeking the approval of Congress for the military tribunals is exactly the what the SCOTUS said to do in the holding of the case.

And it has the political effect of creating another "who is tougher on terrorists" issue for the midterm elections.

Oh, sure, Bushco will use an appeal to fear, it's what they do best. Just this morning on NPR, some Republican was suggesting that Bush will use a those who oppose the tribunals that I want will let dangerous people go free approach. I have no doubt that Bush will try to frame the debate that way, but will his opponents play along? They can play the we support the Constitution card, the our court system is the greatest in the world card. The tribunals are kangaroo courts that, among other things, allow the use of hearsay evidence. If these people are so dangerous, Bush's opponents can say, indict them, bring forward actual evidence and witnesses, convict them, and give them harsh sentences.

"The Supreme Court clips Bush's war wings"

It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists -- for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals.

BTW, the idea of trying these folks by traditional military courts martial sure seems odd to me, but if SCOTUS says it's okay, go for it.

[erik_kosberg]

"...Republicans believe the Supreme Court has dealt them another winning hand, especially with voters in middle America."

Not sure who those Republicans are, but they sure are delusional.

[mjfrombuffalo[$]]

This way they can rail against those "activist judges" I suppose.

[erik_kosberg]

"Man sits in Gitmo for 2 years because US cannot find any of his 4 witnesses. 3 days ago a British newspaper tried to find them, let's see how they did" -- Drew Curtis

[pippadaisy[$]]

And lest anyone discount that one because it's The Guardian, the Boston Globe also checked into it:

Detainees not given access to witnesses - The Boston Globe

A lot of those detainees were put in jail based on nothing more than hearsay. Don't like someone? Claim he's a terrorist. Off to Gitmo!

[rmthunter]

Two points about this decision that I've only seen a couple of references to anywhere:

Everyone's assuming that the Bush administration will pay attention to it and abide by it. I can't imagine why anyone would think that, based on the administration's record.

Congress can't legalize the tribunals without pulling us out of the Geneva Accords, which form a critical part of the basis of this decision. Our international standing is already tanking. What do you think that's going to do to our moral high ground? Are we all prepared to live in a rogue state?

[drmomentum[$]]

conradd said

Compare the multitude of incidents like that with putting panties on the heads of inmates or playing Christina Aguilera music . . . some of the incidents that have been held up as proof of our brutality. We provide copies of the Koran, provide culture appropriate food, make sure that inmates are free to pray 5 times a day. Yes, abuses have happened and troops have faced charges. Because we're civilized and because we do observe Geneva rules.

The test of morality is not that there are abuses. It's what happens following the abuse. One side delights in it. The other seeks to correct it and prevent it from happening again.

One of the things that happens following some abuses is that people consider those abuses to be OK as long as we're not as bad as the people we're fighting. I'm not sure anyone has ever made that argument here explicitly, but it is implicit in arguments that juxtapose terrorist actions with our own. Juxtaposing to see if it fails the moral equivalence test is the first step in condoning. Why else make that particular comparison? Most of us compare actions to our own inner voice or our source of moral guidance rather than what some brutal terrorist is doing.

And, yes, I'm glad that, when our system is working right, this is not how it works officially.

But I think it's a little too dismissive to call the followup to abusethe test of morality. That is a test of how well our system reflects our collective morality. I agree it is an important distinction between us and the people we're fighting, but then we're back to measuring ourselves against them.

But enough people using the terrorists as their yardstick can make a difference. Maybe they have already begun to make a difference. That's something I worry about. Because it feeds back into our collective morality.

[pippadaisy[$]]

Thanks JP. That's what I've been wanting to reply but wasn't able to put it together that coherently.