Guantanamo Treatment Illegal, Says SCOTUS

The Supreme Court has ruled 5-3 that the Bush administration violated American law and the Geneva Convention (technically they’re the same thing) in its handling of detainees at Guantanamo Bay. In response the administration must either release the detainees, repatriate them at Guantanamo or try them in a legal manner.

In lieu of commentary I will repeat something that I said earlier:

Frankly I doubt that the government is ready or able to present a coherent answer to judge Walker’s questionnaire. This administration has a history of ducking legal oversight that stretches from removing JAG officers from the detainee treatment process to the Jose Padilla debacle to the basic mistrust of the FISA warrant application process that lies at the heart of this current eavesdropping scandal ( see here for more). They don’t think that the law will approve of what they do and they don’t have the nerve to change the law, so they cut the law out of decision making and they count on secrecy to keep it under wraps.

The Bush administration actually isn’t that hard to figure out. They love secrecy because they know that they are breaking the law. Part of that, probably a small part, comes from actual malicious intent but the much larger fraction probably just comes from the fact that they are not good enough at their job to do things right the first time. If you cannot get things right and you have too much self-regard to admit a mistake (that would look weak in front of the terrorists French liberals press jackalopes) then you get the dysfunctional mess that we have now.

***Update***

Unlike Marty Lederman I am not a lawyer or a SCOTUS expert. Read his analysis for more informed commentary (formatting his):

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. 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.






146 replies
  1. 1
    Punchy says:

    The blogosphere has exploded on this one.

    In response the administration must either release the detainees, repatriate them at Guantanamo or try them in a legal manner.

    I’m not so sure–I’ve read that they can hold these guys until the conflict is over–which is forever. Further, who is going to enforce this? Congress surely won’t care to, neither will the DoD or Justice or the Pentagon. Without enforcement, the ruling is empty.

    And now there’s a wicked rumor that Stevens is retiring tomorrow. God save us, if true.

  2. 2
    Jim Allen says:

    In a related story, President Bush immediately file a signing statement indicating that this decision obviously does not apply to him, as he is the Decider Who Gets to Decide, not a bunch of unelected activist judges who obviously hate America and are helping the terra-rists.

  3. 3
    Ancient Purple says:

    I really do wonder how long it will be before someone (or a lot of someones) seriously suggest that Bush not accept the decision and state that because he thinks the SCOTUS is wrong, he doesn’t have to listen to them.

    A round of drinks on me to any who can provide the first link to a notable making such a suggestion.

  4. 4
    Steve says:

    I’m not so sure—I’ve read that they can hold these guys until the conflict is over—which is forever.

    The Supreme Court, in Hamdi v. Rumsfeld, said that you are indeed entitled to hold enemy combatants until the conflict ends (which sounds pretty logical!) but there are two very important caveats.

    1. You don’t have to give them a full-blown trial, but you do have to at least give them some sort of hearing to prove that they are, in fact, “enemy combatants.” If they are, then you can just hold them like we always hold POWs.

    2. The Court was obviously troubled by the idea that holding enemy combatants until the termination of hostilities might mean “forever” in the context of the War on Terror, but it finessed the issue by saying that as long as we’re still in active combat in Iraq and Afghanistan, it’s fair to say that hostilities haven’t ended. Once those conflicts are over, the Court clearly hopes we’ll have found a better solution than simply trying to hold everyone without trial until the “War on Terror” is over.

    There’s really not going to be an answer, I think, other than giving these people a trial or at least a military tribunal of the sort this Hamdan case is about. In a traditional conflict, you know that once you sign a peace treaty with Germany or Japan, the soldiers aren’t going to keep fighting against you, and you can just let your POWs go. But if we capture a bona fide terrorist or suicide bomber, there’s no way we can ever let them go and feel safe (unless you think we’ll be signing a treaty with bin Laden someday, and even then, crazy people don’t necessarily respect a hierarchy).

    So the only solution is to kill them or imprison them for life, and we can’t justify either of those two things unless we at least convict them before a military tribunal. Obviously, if the government has the power to lock someone up for life just on someone’s say-so that they’re a terrorist, then they can lock anyone at all up for life. Our system won’t allow for that. The Supreme Court is waiting for a better solution to be proposed.

  5. 5
    Buck says:

    Wasn’t it Andrew Jackson who said, “The Supreme Court has made their decision, now let them enforce it”?

    I see something similar on the horizon here.

  6. 6
    Steve says:

    Marty Lederman has something to say:

    [T]he 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).

    If I’m right about this, it’s enormously significant.

  7. 7

    Supreme Court decides on Hamda v Rumsfeld

    UPDATE @ 8:35AM Pacific: Balloon Juice: “The Bush administration actually isn’t that hard to figure out. They love secrecy because they know that they are breaking the law. Part of that, probably a small part, comes from actual malicious intent…

  8. 8
    Steve says:

    I really do wonder how long it will be before someone (or a lot of someones) seriously suggest that Bush not accept the decision and state that because he thinks the SCOTUS is wrong, he doesn’t have to listen to them.

    It’s actually not the Supreme Court that Bush has to listen to here, it’s Congress. Congress has passed the UCMJ which sets standards for military tribunals; Bush is required to follow those standards. So a number of things that are wrong with the military tribunals could be fixed if Congress were to amend the UCMJ. The Geneva Convention would still be a problem, mind you.

  9. 9
    Pb says:

    Tim F.,

    In response the administration must either release the detainees, *repatriate them at Guantanamo* or try them in a legal manner.

    Emphasis mine–what does that even mean? Doesn’t repatriation consist of sending a person back to their country of origin, and therefore wouldn’t it be impossible to “repatriate them at Guantanamo”? Also, how would repatriation be any different from releasing them–wouldn’t we also send them home in that case? I’m sure I’m missing something here…

  10. 10
    Lee says:

    …they are not good enough at their job to do things right the first time.

    Is it they are not good enough or just too lazy?

  11. 11
    Nutcutter says:

    The president has stated that this decision is “disgraceful” and helps the terrorists.

    The pundictocracy will now be calling for indictments of treason against the justices, and Darrell will be here to spam the thread to the effect that a perfectly good and necessary program has been damaged by these activist judges.

    Thread closed, move along.

  12. 12
    VidaLoca says:

    John,

    Part of that, probably a small part, comes from actual malicious intent but the much larger fraction probably just comes from the fact that they are not good enough at their job to do things right the first time.

    I realize that you’re trying to be a sober commentator, not rush to conclusions, not get ahead of the facts and the story and not sound like a barking moonbat. That’s to be commended. In any case it’s not necessary for you to do any of those things; as your loyal commentariat we can pretty much take care of it all for you.

    I also think that what you’re saying is partly true, but only partly. Come on — if the “unitary executive” theory is not malicious intent, what is?

  13. 13
    Punchy says:

    This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons “shall in all circumstances be treated humanely,”

    Again, I call shenanigans on this. Who’s going to enforce these “new” regulations? Why would the military do anything different, knowing they’re backed by the Pentagon and DoD?

    Unless Stevens wants to march down to Gitmo with an Uzi and his ruling, I say nothing changes in practice.

  14. 14
    Steve says:

    As always, part of being a sober commentator is being able to tell the difference between John and Tim.

  15. 15
    Andrew says:

    As always, part of being a sober commentator is being able to tell the difference between John and Tim.

    They’re both American hating leftists, so I don’t see why it matters.

  16. 16
    Jill says:

    “Unless Stevens wants to march down to Gitmo with an Uzi and his ruling, I say nothing changes in practice.”

    I’m quite sure that most righties will be daring Stevens to do just that and calling for Bush to ignore the decision.

    Ancient Purple, get ready for your prediction to be rewarded!

  17. 17
    VidaLoca says:

    As always, part of being a sober commentator is being able to tell the difference between John and Tim.

    Ah, crap. And I’ve always snickered in the past at people who made the same mistake.

    My apologies, gentlemen.

    [/slinks away, blushing]

  18. 18
    Otto Man says:

    I really do wonder how long it will be before someone (or a lot of someones) seriously suggest that Bush not accept the decision and state that because he thinks the SCOTUS is wrong, he doesn’t have to listen to them.

    Just saw Bush on CNN, alongside the Japanese PM, and his response to the ruling was — paraphrasing here — yeah, we’ll take that ruling seriously and really give it a good look and talk with Congress about how to respond.

    He’s already looking for the wiggle room, though probably not headed toward a full rejection. Not even Nixon was that brazen, but this crowd has been pushing the arrogance envelope for a long time. Who knows?

  19. 19
    mrmobi says:

    Does this mean that Geneva is no longer “quaint?”

    So we’ll “give it a good look and talk with Congress about how to respond” eh?

    Why don’t we start by obeying the law and respecting the treaties we have signed? Wouldn’t that be a good thing?

    Just a thought, there’s probably some signing statement thing which exempts us, of course. I’m not a lawyer and I’m too dumb to understand how this works.

  20. 20
    Pharniel says:

    the only hope is that this time, when mr. jackson isn’t offering a profitable reason to buck the scotus, the soldiers do what they need to do when an execuative violates teh constituion in a brazen and traitorus way.

    i’m pretty sure that impeachment hearing would last all of thirty minutes and then the republicans can redeem themselves to thier base by passing the gay marrage amendment.

  21. 21
    Pharniel says:

    and oh yha, most of the PJ media thinks this is the NYT editorial board getting whatever they want, instead of, y’know, common sense.

    also, apperently the calling for thier heads has already started. can’t wait for the supremes to be arrested for treason…..

    Get ready to sign up for NightWatch.

  22. 22
    demimondian says:

    It’s actually not the Supreme Court that Bush has to listen to here, it’s Congress. Congress has passed the UCMJ which sets standards for military tribunals; Bush is required to follow those standards. So a number of things that are wrong with the military tribunals could be fixed if Congress were to amend the UCMJ. The Geneva Convention would still be a problem, mind you.

    I’m not so sure about that. Since those prisoners were detained under UCMJ, and it bans such commissions, there’s a strong case to be made that any attempt to change it retroactively would constitute _ex post facto_ activity for current detainees.

  23. 23
    Cyrus says:

    I also think that what you’re saying is partly true, but only partly. Come on—if the “unitary executive” theory is not malicious intent, what is?

    Well, “malicious“:

    ma·li·cious
    adj.
    Having the nature of or resulting from malice [from that entry: 2. Law. The intent, without just cause or reason, to commit a wrongful act that will result in harm to another.]; deliberately harmful; spiteful…

    I’m no expert, but the “harm to another” caused by the unitary executive theory seems indirect and/or unintentional. Likewise, it’s hard to argue that the unitary executive theory is “deliberately harmful” to any person rather than institutions. So we’re left with “spiteful”, or more broadly, causing harm/pain/whatever for the fun of it. Which, to me, doesn’t seem like what we’re seeing. I might call Bush stupid, greedy, power-hungry, corrupt, even dictatorial, but the major outrages everyone complains about do not seem malicious, like international versions of pulling the wings off flies.

    Just pedantic nitpicking, I suppose. But in an era when people were ready to burn Dick Durbin in effigy for using “American troops” and “Nazis” in the same sentence, we all have to be lawyerly with our language.

  24. 24
    Steve says:

    I’m not so sure about that. Since those prisoners were detained under UCMJ, and it bans such commissions, there’s a strong case to be made that any attempt to change it retroactively would constitute ex post facto activity for current detainees.

    Well, that’s a very interesting point. I’ve long since misplaced my old Con Law book, so I don’t know if ex post facto applies to matters that are procedural rather than substantive, and more to the point, I don’t know if these non-citizens are entitled to that sort of protection anyway.

    Didn’t Congress pass a new law on detainee treatment just last year? I get easily confused.

  25. 25
    sglover says:

    I really do wonder how long it will be before someone (or a lot of someones) seriously suggest that Bush not accept the decision and state that because he thinks the SCOTUS is wrong, he doesn’t have to listen to them.

    The Weekly Standard should be a promising venue for devoted observers of the Screeching Wingnut. I suspect the grubs will emerge from their burrows as soon as Billy Kristol regurgitates the necessary instructions to them.

  26. 26

    I really do wonder how long it will be before someone (or a lot of someones) seriously suggest that Bush not accept the decision and state that because he thinks the SCOTUS is wrong, he doesn’t have to listen to them.

    12 seconds?

  27. 27
    VidaLoca says:

    Cyrus,

    Hm. Well here’s another source on “malicious”:

    3. (Law)With wicked or mischievous intentions or motives;
    wrongful and done intentionally without just cause or
    excuse; as, a malicious act.

    (From Webster’s Revised Unabridged Dictionary (1913)

  28. 28
    Steve says:

    Glenn Greenwald says:

    Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas.

    So I think I was probably right that Congress has the power to undo this. It will be interesting.

  29. 29
    demimondian says:

    I thought about the citizen/non-citizen protection myself. The question is complicated by the fact that this is aaffects a treaty matter, and specifically a treaty matter concerning the rights of non-citizens. As such, I would expect that courts to read e.p.f. extremely broadly in that narrow situation.

  30. 30
    VidaLoca says:

    Cyrus,

    Oops — didn’t mean to close that off so soon. (This is not my day for commenting…). I meant to add that while I think that version gets a little closer to the point I was trying to make, which is that Bush is intentionally trying to tilt the balance among the branches of government toward the Executive rather than merely mounting coverups ad-hoc, the personalized sense of the word that you point out might indeed make it less than the best choice.

  31. 31
    Darrell says:

    There’s really not going to be an answer, I think, other than giving these people a trial or at least a military tribunal of the sort this Hamdan case is about

    The NYT article Tim linked to said that the Supreme court ruled that military tribunals for these unlawful combatents were not acceptable. Does that mean that military tribunals as they were held in Guantanamo were not acceptable because they were lacking some procedure or safeguard, or did the ruling say that terrorists captured on the battlefield must be given a trial in US Federal courts? If it’s the latter, seems that would amount to a power grab by the courts to try and take control on war related issues.

  32. 32
    John D. says:

    The NYT article Tim linked to said that the Supreme court ruled that military tribunals for these unlawful combatents were not acceptable. Does that mean that military tribunals as they were held in Guantanamo were not acceptable because they were lacking some procedure or safeguard, or did the ruling say that terrorists captured on the battlefield must be given a trial in US Federal courts? If it’s the latter, seems that would amount to a power grab by the courts to try and take control on war related issues.

    Um, Justice Stevens reasoning is actually, y’know, quoted in the article.

    In the majority opinion, Justice Stevens declared flatly that “the military commission at issue lacks the power to proceed because its structure and procedure violate” both the Uniform Code of Military Justice, which governs the American military’s legal system, and the Geneva Convention.

    So, it violates the UCMJ, a duly passed law that governs our military conduct, including our civilian leadership of the military, and the Geneva Convention, a treaty signed and approved by previous governance, also a law of the land. How is this a power grab? They pretty much just said “Here’s the law you guys passed. Follow it.”

    Quaint, I know. Rule of Law is *so* 1990s.

  33. 33
    John D. says:

    So I think I was probably right that Congress has the power to undo this. It will be interesting.

    Unlikely, due to ex post facto protections. They can undo this, but likely only for future detainees.

  34. 34

    “They love secrecy because they know that they are breaking the law.”

    Balloonjuice goes to the heart of the political divide (though not the SCOTUS ruling). He reads minds in the same way we all learned as college sophomores to cynically reject the claims of anyone we don’t like. It’s very simple: disregard everything they say and do not attempt to answer their reasoning; just accuse them of evil motives, even if you have no evidence. It’s called the Motive Fallacy.

    Just because a lot of people are on the same circular path of your logic doesn’t mean that any of you actually know anything. I am aware that all the cool kids think Bush is nefariously trying to circumvent the Constitution at every turn. I am also aware that this sort of argument is brought out when there’s not much left.

    Ask yourselves: What advantage would it be to Bush to undermine the rule of law? Because he gets off telling people what to do? Because he has more secret plans to take all the world’s kitties and drown them?

    Public trials can be used as public relations vehicles by our enemies. As the GWOT is increasingly an information and PR war, the president has the obligation, for our safety, to reduce any advantage our enemies have. Courts and treaties may legitimately set limits on how that might be done, but when previous presidential precedent (and lots of it) suggests that a military tribunal is an acceptable alternative, why is it so automatically evil to consider that option?

    The host and many commenters here apparently believe they know that the President is acting for other reasons. You can’t know that, and your guess is based only on previous self-reinforcing guesses. Interesting that conservative bloggers and commentators are excoriated for concluding that liberals make their decisions on the basis of impressions instead of facts, but guys like you give us new ammunition for it every day.

  35. 35
    SeesThroughIt says:

    Well, I haven’t seen any “Bush should just ignore it” posts yet, but we do have “Supreme Court Signs Treaty with Al Qaeda, which certainly lays the groundwork for “the SC is in league with AQ and is therefore committing treason. Not only should this decision be ignored, the SC should hauled into, uh, court and tried (and convicted) for sedition.”

  36. 36
    demimondian says:

    The Court said that Geneva applied to these “illegal combatants”. They need to either be treated as prisoners of war or as criminals. If the former, they have certain rights, which include immunity from prosecution for legal actions taken while in battle. If the latter, they must be tried as common criminals, which entails the standard protections applied to all criminals: right to legal counsel, right to a jury of their peers, etc.

    In essence, this is a “can’t have it both ways” decision. The administration has been hiding behind a “since they’re neither one nor the other, they have the protections of neither” defense, and the Court has said, “You must make a choice. You don’t have a legally recognized third status to fall back on.”

  37. 37
    Tim F. says:

    Not everybody thinks in terms of “power grabs.” The government is obligated to follow the laws that it passes and it would take a pathetically incompetent court to rule otherwise. This alleged “power grab” can also be described as the courts “doing what we pay them to do.”

    Sure power grabs exist these days, Darrell, but I strongly doubt that you will ever acknowledge the perps.

  38. 38
    Darrell says:

    So, it violates the UCMJ

    Good observation.. That answers my question. The court ruling said the main problem was that the structure and procedure of these tribunals violated the UCMJ. So what Steve posted above seems to have encapsulated very well the bottom line issue:

    Congress has passed the UCMJ which sets standards for military tribunals; Bush is required to follow those standards. So a number of things that are wrong with the military tribunals could be fixed if Congress were to amend the UCMJ. The Geneva Convention would still be a problem, mind you.

  39. 39
    SeesThroughIt says:

    Ask yourselves: What advantage would it be to Bush to undermine the rule of law?

    Um…that he can do whatever the hell he wants unfettered by said rule of law? Sounds like a good advantage to me.

  40. 40
    Perry Como says:

    This just proves that we should abolish the Supreme Court. They are trying to usurp the power of the President.

  41. 41
    Darrell says:

    Tim F. Says:

    Not everybody thinks in terms of “power grabs.”

    You yourself wrote this:

    They love secrecy because they know that they are breaking the law.

    sounds pretty clear that you are alleging that the Bush administration regularly engages in power grabs, wouldn’t you agree?

  42. 42
    John S. says:

    Quaint, I know. Rule of Law is so 1990s.

    Somebody had to stop the mighty Clenis, a threat more detrimental to the fabric of our nation than anything this administration has done.

    /Darrell

  43. 43
    Tim F. says:

    sounds pretty clear that you are alleging that the Bush administration regularly engages in power grabs, wouldn’t you agree?

    The two quoted statements are not inconsistent. As I said,

    I strongly doubt that you will ever acknowledge the perps.

    Maybe someday you will prove me wrong. And maybe the moon is made of green cheese.

  44. 44
    Jim Allen says:

    Public trials can be used as public relations vehicles by our enemies. As the GWOT is increasingly an information and PR war, the president has the obligation, for our safety, to reduce any advantage our enemies have.

    Oh. My. God.

  45. 45
    Darrell says:

    The two quoted statements are not inconsistent. As I said,

    I strongly doubt that you will ever acknowledge the perps.

    Ah yes, criminal Bush and his illegal war for oil

  46. 46
    John D. says:

    Public trials can be used as public relations vehicles by our enemies. As the GWOT is increasingly an information and PR war, the president has the obligation, for our safety, to reduce any advantage our enemies have. Courts and treaties may legitimately set limits on how that might be done, but when previous presidential precedent (and lots of it) suggests that a military tribunal is an acceptable alternative, why is it so automatically evil to consider that option?

    Even in secret military tribunals, the accused is afforded the right to counsel, defense against self-incrimination, knowledge of the charges against him, charges actually being brought against him, opportunity to call witnesses and gather evidence, and a host of other things. UCMJ link (Subchapter VI and VII cover most of this).

    The fact that many of the provisions of the UCMJ were not followed mean that the law was broken. I am not claiming that this administration was acting in bad faith, I am merely claiming that they broke the law, wittingly or unwittingly. The problem is not with the military tribunals, the problem is how they were run.

  47. 47
    Punchy says:

    A round of drinks on me to any who can provide the first link to a notable making such a suggestion.

    Is Bush himself a notable? Because if so…well

  48. 48
    Jim Allen says:

    Ah yes, criminal Bush and his illegal war for oil

    Every time I read a posting by LarryDarrell&Darrell, I picture a duck with the voice of Gilbert Gottfried screaming, “Asshat!”

    Just one of my coping mechanisms, I guess.

  49. 49
    Darrell says:

    Oh. My. God.

    Jim Allen, which part of statement which you blockquoted qualifies as such an over the top “Oh.My.God” type response of shock? Is it really so shocking to assert that unlawful combatents not be given an OJ tril in Federal courts? I’d like you to explain yourself, so that we can see how extreme you really are.

  50. 50
    Jim Allen says:

    Jim Allen, which part of statement which you blockquoted qualifies as such an over the top “Oh.My.God” type response of shock? Is it really so shocking to assert that unlawful combatents not be given an OJ tril in Federal courts? I’d like you to explain yourself, so that we can see how extreme you really are.

    Damn, there’s that duck again.

  51. 51
    Steve says:

    Keep in mind that, unless I’m wrong about there not being an ex post facto problem, Bush working with Congress to amend the statutory scheme for military tribunals is not exactly “circumventing” the court’s ruling. It is, instead, pretty much how the system is supposed to work.

    They still have to follow Article 3 of Geneva, mind you. It’s not like Congress has unfettered discretion to authorize whatever it wants.

  52. 52
    John S. says:

    What advantage would it be to Bush to undermine the rule of law? Because he gets off telling people what to do? Because he has more secret plans to take all the world’s kitties and drown them?

    Are you serious? These are the best responses you can come up with to your own question?

    I prefer to let President Bush speak for himself:

    Q: What advantage would it be for you to undermine the rule of law?

    Bush: God told me to strike at al Qaeda and I struck them, and then he instructed me to strike at Saddam [Hussein], which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them.

    Q: So you are saying that you are above the rule of law because you are ruling by divine providence?

    Bush: I’m the Commander, see… I do not need to explain why I say things. That’s the interesting thing about being the President … [I] don’t feel like I owe anybody an explanation.

    So, yeah, Assitant Village Idiot, there is clearly no advantage to Bush undermining the rule of law – other than to get around the heathens that try to deny him executing the will of God, for which he has clearly been selected to do and is answerable to nobody but the Lord himself.

    But it’s the kitties we’re all really worried about.

  53. 53
    Pb says:

    Assistant Village Idiot Says

    *Assistant* Village Idiot? Would that be Cheney? Or is it the other way around…

  54. 54
    John D. says:

    Good observation.. That answers my question. The court ruling said the main problem was that the structure and procedure of these tribunals violated the UCMJ. So what Steve posted above seems to have encapsulated very well the bottom line issue:

    Ex post facto provisions mean that the UCMJ has to be applied as it was written at the time of detention. They can modify the UCMJ and have the new version apply to future detainees, but they cannot retroactively apply modifications.

  55. 55
    Tim F. says:

    Ah yes, criminal Bush and his illegal war for oil

    Boy you sure beat that straw guy up good.

    The host and many commenters here apparently believe they know that the President is acting for other reasons. You can’t know that, and your guess is based only on previous self-reinforcing guesses. Interesting that conservative bloggers and commentators are excoriated for concluding that liberals make their decisions on the basis of impressions instead of facts, but guys like you give us new ammunition for it every day.

    Alberto Gonzales:

    We have had discussions with Congress in the past — certain members of Congress — as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.

    In other words, they couldn’t get the law to follow their actions but they went ahead anyway. The AUMF argument was always a CYA move initiated after the program was disclosed and, as the Supreme Court ruled today, transparently bogus.

    Reality once again rears its partisan head…

  56. 56
    John D. says:

    Keep in mind that, unless I’m wrong about there not being an ex post facto problem, Bush working with Congress to amend the statutory scheme for military tribunals is not exactly “circumventing” the court’s ruling. It is, instead, pretty much how the system is supposed to work.

    Steve, I’m fairly sure we will have ex post facto issues, since the UCMJ was a Congressional law, not merely a military procedure. I do agree that modifying the UCMJ is pretty much how the system is supposed to work, but it *should* only apply to future detainees.

  57. 57
    RSA says:

    Public trials can be used as public relations vehicles by our enemies.

    So that’s why the most prominent villain in Iraq, Saddam Hussein, is being tried in secret, so that his trial can’t be used as a public—wait, what the hell are we talking about here? There’s very good argument for having public trials, to demonstrate the legitimacy of the process. Not coincidentally, the appearance of legitimacy to a worldwide audience is one thing that seems to be missing in our treatment of Guantanamo prisoners.

  58. 58
    Darrell says:

    Ex post facto provisions mean that the UCMJ has to be applied as it was written at the time of detention. They can modify the UCMJ and have the new version apply to future detainees, but they cannot retroactively apply modifications.

    You mean to say, they cannot re-try these detainees under a newly modified UCMJ? Do unlawful combatents now receive 5th amendment constitutional protections on double jeopardy?

  59. 59
    DBL says:

    The one thing this decision clearly does not mean is that the Gitmo prisoners must be released or tried. The Court stated that Hamdan can be held for the duration of hostilities. If, as some have argued, we are 30 years into a 100 years war, then he and his compatriots at Gitmo are going to be there for a very long time.

    It is true that the prisoners at Gitmo are entitled to some kind of hearing to show that they were not in fact combatants or members of al Qaeda, but just innocent Arab tourists who were wandering through the hills of Afghanistan when they were captured by allied soldiers. It’s even conceivable that one or two of them might be able to prove that they were not combatants. But for the rest, they’re going nowhere.

    I suppose, if AQ and its allies lay down their arms in Afghanistan and Iraq, and their leaders publicly announce that they have given up their jihad against the US and its allies, and if jihadist attacks cease throughout the world, then I suppose that if the Government at that far-distant point were to refuse to release the Gitmo prisoners, they might be able to convince a court to release them. But not until. You can count on it.

  60. 60
    Jim Allen says:

    You mean to say, they cannot re-try these detainees under a newly modified UCMJ? Do unlawful combatents now receive 5th amendment constitutional protections on double jeopardy?

    “Re-try”?

  61. 61
    AkaDad says:

    If Bush broke the law, there should be impeachment proceedings, just like Clinton. Right?

  62. 62
    Pb says:

    Darrell,

    Try actually reading the Constitution for once. It doesn’t start and end with Article II.

  63. 63
    John D. says:

    You mean to say, they cannot re-try these detainees under a newly modified UCMJ? Do unlawful combatents now receive 5th amendment constitutional protections on double jeopardy?

    *Any* military tribunal is run under the strictures of the UCMJ. Ex post facto applies to anyone tried under our laws, not just citizens, and the UCMJ is a law here. Frankly, that is as it should be. That’s why we are a nation of laws, not whims.

  64. 64
    Steve says:

    Steve, I’m fairly sure we will have ex post facto issues, since the UCMJ was a Congressional law, not merely a military procedure.

    Yeah, but (1) it’s procedural and not substantive, (2) these people don’t necessarily get every Constitutional protection in the book. I’m not saying you’re wrong, since I’m no criminal law expert, but I don’t think it’s quite that simple. No one is trying to convict these guys of a crime that wasn’t illegal at the time they conducted it.

  65. 65
    VidaLoca says:

    Darrell,

    You mean to say, they cannot re-try these detainees under a newly modified UCMJ?

    If I understand ex post facto correctly, the answer to that would be “yes”: the UCMJ could be modified, and persons captured after the modifications went into effect could be tried under the modified rules. Those caught before would be tried under the old rules.

    If the NYT article is correct, the “old rules” involve 2 choices: full court-martial under the UCMJ, or trial in the civilian system.

  66. 66
    demimondian says:

    John D. — the subtlety Steve is raising is that this is a procedural requirement (how things are done), not a substantive one (what actions are putatively legal or illegal). There’s no legitimate question that pursuing terror against the United States has been illegal for as long as I’ve been alive, at least, so there’s no substantive legal question. It’s a much narrower question whether it’s legal to try a non-citizen in a different way for such a crime after a change of the UCMJ.

    I see a broader protection under the Geneva Conventions. Even if we abrogate those, they state that certain actions are clearly not punishable at this time. If the Court has genuinely determined that there’s no legitimate classification of combattants as “illegal”, then it is the case that the detainees must either be criminals (in which case, they must be afforded basic legal protections guaranteed to all persons facing trial) or POWs (in which case, they raise an fascinating Constitutional question — what do you do with a POW who will have to be held forever?).

  67. 67
    demimondian says:

    Do unlawful combatents now receive 5th amendment constitutional protections on double jeopardy?

    Yes. Did you ever really wonder?

    That only kicks in if they’re actually tried and acquitted.

  68. 68
    Punchy says:

    They still have to follow Article 3 of Geneva, mind you. It’s not like Congress has unfettered discretion to authorize whatever it wants

    I just spit up Hi-C reading this. Brilliant spoof.

  69. 69
    John D. says:

    Yeah, but (1) it’s procedural and not substantive, (2) these people don’t necessarily get every Constitutional protection in the book. I’m not saying you’re wrong, since I’m no criminal law expert, but I don’t think it’s quite that simple. No one is trying to convict these guys of a crime that wasn’t illegal at the time they conducted it.

    I’d call lack of counsel, lack of charges, lack of trial and no Article 31 rights substantive, but enh. I’d like to have seen SCOTUS rule on those facets as well. I need to dig through all 180+ pages of that PDF this afternoon.

  70. 70
    betamu60 says:

    Well, not sure if this is a notable, but http://counterterrorismblog.or.....s_will.php

  71. 71
    Andrew says:

    I’ve got to say that this decision is a decisive victory in the war to spark ridiculous right wing commentary.

    From blogsforbush:

    Amazing, this week the democrats have embraced the terrorists. Not only giving them the protection they need to kill us in cold blood but also telling them how we are coming after them.

    I wonder who the real enemy of this country is? The Islam Extremeist or Liberal Democrats.

    Remember kids, John Cole voted for the same president as this guy did.

  72. 72
    Pb says:

    Constitutional Ex post facto refresher course:

    In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

    “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

  73. 73
    mrmobi says:

    AVI:

    Public trials can be used as public relations vehicles by our enemies. As the GWOT is increasingly an information and PR war, the president has the obligation, for our safety, to reduce any advantage our enemies have. Courts and treaties may legitimately set limits on how that might be done…

    Fair enough, but isn’t that exactly what the court is doing? They are forcing the administration to decide what the status of these prisoners is, and for how long they can be held. They must force the administration to do this, because the Attorney General has, in his writings, stated that he throught the Geneva Conventions “quaint.” Maybe not evil, but certainly on that slippery slope.

    …but when previous presidential precedent (and lots of it) suggests that a military tribunal is an acceptable alternative…

    Forgive me, I’m not a lawyer, but does “presidential precedent” carry the same weight as established law?
    For myself, I have no idea what motivates the Presdient, or even if he is the source of policy in this administration. But it seems abundantly clear to me that this administration feels it is above the law. Unitary Executive = King.

  74. 74
    Nutcutter says:

    I’ve got to say that this decision is a decisive victory in the war to spark ridiculous right wing commentary.

    Great line, best of the day.

    The whole election season is going to be like this. It’s all about GOTV now. All the insane shit is going to hit the fan for the next four months.

    Welcome to Roveworld.

  75. 75
    SeesThroughIt says:

    I’ve got to say that this decision is a decisive victory in the war to spark ridiculous right wing commentary.

    POTD, but the day is still young. Great b4b snip, though–those guys are going completely apeshit. Well, more apeshit than usual, at any rate.

  76. 76
    Andrew says:

    All the insane shit is going to hit the fan for the next four months.

    Welcome to Roveworld.

    Spoofing is our only hope.

  77. 77
    VidaLoca says:

    U.S. Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) today issued the following statement on the U.S. Supreme Court’s ruling on the Hamdan case:

    “We are disappointed with the Supreme Court’s decision. However, we believe the problems cited by the Court can and should be fixed.

    “It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions.

    “In his opinion, Justice Breyer set forth the path to a solution of this problem. He wrote, ‘Nothing prevents the president from returning to Congress to seek the authority he believes necessary.’

    “We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions. Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute.”

    h/t Malkin (who else?); no link provided

  78. 78
    jg says:

    Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute.

    I think they’re starting to figure out how to do their jobs.

  79. 79
    Punchy says:

    “It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger.

    Seriously, WTF?

    Tis the Season of Hyperbole. Ridiculous, nonsensical, superfluous hyperbole.

  80. 80
    Jim Allen says:

    “…and places the safety of jurors in danger.”

    “And we must be ever vigilant to keep safety safe.”

  81. 81
    t. jasper parnell says:

    It is not on the net version, but the New Yorker profile of Addington is really very revealing and horrfic.

  82. 82

    Public trials can be used as public relations vehicles by our enemies.

    Assistant Village Idiot suffers from pre-1776 thinking.

  83. 83

    You mean to say, they cannot re-try these detainees under a newly modified UCMJ? Do unlawful combatents now receive 5th amendment constitutional protections on double jeopardy?

    More evidence of pre-1776 thinking.

  84. 84
    demimondian says:

    …evidence of pre-1776 thinking

    Remember, kids, 7/4/1776 changed everything. [/jackalope]

  85. 85
    Jim Allen says:

    Remember, kids, 7/4/1776 changed everything.

    But BushCheneyCo will change it all back.

  86. 86
    Don says:

    Graham and Kyl should take a minute to read the opinion (or have their experts do it) before they mouth off with things like “It is inappropriate to try terrorists in civilian courts.” The ruling was very clear in that they took no issue with military tribunals, only that the President couldn’t just make up rules from whole cloth. Use the UCMJ as it stands and you’re golden.

  87. 87
    Mac Buckets says:

    Why don’t we start by obeying the law and respecting the treaties we have signed? Wouldn’t that be a good thing?

    Doesn’t it take two parties to make a treaty? When did al-Qaeda sign the Geneva Conventions?

    The ruling doesn’t add up to much, I think, and it might show the Muslims a thing or two about how civilized people act, even toward the thugs who want them dead. Who knows, maybe they’ll respond positively to our magnanimous gesture! [Something from Wayne’s World about monkeys flying comes to mind.]

  88. 88
    Steve says:

    Doesn’t it take two parties to make a treaty? When did al-Qaeda sign the Geneva Conventions?

    I’m pretty sure a lot more than two parties signed the Geneva Conventions.

    I’m pretty sure the parts of the Geneva Conventions which state they apply to non-signatories are applicable to, well, non-signatories.

  89. 89
    Joshua Chamberlain says:

    Hot air and ill-informed banter is right

  90. 90
    Jim Allen says:

    Doesn’t it take two parties to make a treaty? When did al-Qaeda sign the Geneva Conventions?

    The ruling doesn’t add up to much, I think, and it might show the Muslims a thing or two about how civilized people act, even toward the thugs who want them dead. Who knows, maybe they’ll respond positively to our magnanimous gesture! [Something from Wayne’s World about monkeys flying comes to mind.]

    Stuck in the middle there is, I think, the whole point. “The ruling doesn’t add up to much, I think, and it might show the Muslims a thing or two about how civilized people act, even toward the thugs who want them dead.” Yeah, it won’t mean anything at all to Al Qaeda, but we aren’t trying to convince them of anything. We need to not only destroy al Qaeda, but destroy that which breeds the al Qaedas. “Exporting democracy” is done by action and example, not by force. We need to get back to acting like civilized people, and it should not hinge on if some terrorist group signed the Geneva conventions, but rather should hinge on what our core principles are and whether we stand by them no matter how difficult, or throw them over because it’s easier (or more politically expedient) that way. If we want them to “act like us”, we need to be the “us” we want them to emulate.

  91. 91
    John S. says:

    When did al-Qaeda sign the Geneva Conventions?

    Who gives a shit whether or not they signed it? You go from insinuating that we aren’t bound by the GC because al-Qaeda didn’t sign it, to contradicting yourself in the next breath:

    it might show the Muslims a thing or two about how civilized people act, even toward the thugs who want them dead.

    So which is it, Mac? Do we lower ourselves to the standards of terrorists or do we live by a higher code than our enemies? You can’t have it both ways.

  92. 92
    Ancient Purple says:

    When did al-Qaeda sign the Geneva Conventions?

    And so that is what you think binds the U.S. to the Geneva Conventions? Good grief.

    Next up, MacBuckets tells us that we aren’t going to have freedom of the press until Al Qaeda has freedom of the press.

    That will show them.

  93. 93
    Jim Allen says:

    Next up, MacBuckets tells us that we aren’t going to have freedom of the press until Al Qaeda has freedom of the press.

    That will show them.

    But, but, but, al Qaeda reads the new York Times! If we have freedom of the press, then the terrorists have freedom of the press! And we can’t let the terrorists have freedom of the press! So we can’t have freedom of the press! Freedom of the press does you no good if you’re dead! Ahhhhhhh!!!!!!!!

  94. 94
    Mac Buckets says:

    So which is it, Mac? Do we lower ourselves to the standards of terrorists or do we live by a higher code than our enemies? You can’t have it both ways.

    Blow it out your moronic ass — you obviously have no idea what a terrorist is or how they behave, and you obviously haven’t been paying attention for the last five years. The day our soldiers dress in civvies, strap on a bomb, and detonate in civilian marketplaces, then you can get on your high horse and pretend that we are same as them.

  95. 95
    Punchy says:

    Next up, MacBuckets tells us that we aren’t going to have freedom of the press until Al Qaeda has freedom of the press.

    They could be there, already. I just picked up today’s copy of The Al Qaeda Jounal-Times, and there’s a scathing editorial on the selection of Abu Hamza al-Muhajir as the big cheese in Iraq over the much more qualified and extremely bearded Abu Al-Fucksdogsalot. If the writer lives to see tomorrow, that’s a pretty sure sign AQ has American journalism down pat.

  96. 96

    Blow it out your moronic ass—you obviously have no idea what a terrorist is or how they behave, and you obviously haven’t been paying attention for the last five years. The day our soldiers dress in civvies, strap on a bomb, and detonate in civilian marketplaces, then you can get on your high horse and pretend that we are same as them.

    Pre-1776 thinking

  97. 97

    Thank you mrmobi for an honorable response. I do think it is a bit hyperbolic to accuse Gonzales of calling the entire Geneva Accords “quaint,” when he was referring to s specific provision, however. And Unitary Executive is a rather humorous exaggeration of what is happening here in the eyes of one whose has family from Romania, where they really know what dictatorship is. Aside from the fevered exaggeration, your points have merit. Precedent is not law. It should prevent people from overexcitement at how badly our prisoners are being treated when this is a similar response – or milder – than what has been used by previous, including Very Recent, presidents.

    Demimondian has it right. The SCOTUS has directed that the administration must go one way or the other on these prisoners, and does not have a third “no-man’s land” option.

    I will note in passing that these prisoners are better treated than the citizens in US prisons, which makes the outrage at their treatment a bit puzzling.

  98. 98
    Steve says:

    I will note in passing that these prisoners are better treated than the citizens in US prisons, which makes the outrage at their treatment a bit puzzling.

    Perhaps some people consider it material, in evaluating the circumstances of a person’s confinement, to note whether or not that person has been convicted of a crime, as the citizens in US prisons have.

  99. 99
    Andrew says:

    They could be there, already. I just picked up today’s copy of The Al Qaeda Jounal-Times, and there’s a scathing editorial on the selection of Abu Hamza al-Muhajir as the big cheese in Iraq over the much more qualified and extremely bearded Abu Al-Fucksdogsalot. If the writer lives to see tomorrow, that’s a pretty sure sign AQ has American journalism down pat.

    I hope you didn’t miss the snarky review of An Inconvenient Truth by Al Osama Scott. “An Inconvenient Truth? I’ll tell you an inconvenient truth: The generator went out last night so I couldn’t watch this Western imperialist propaganda.”

    And Brooksistani had a hell of an column on the bobos of Kandahar.

  100. 100
    John S. says:

    Blow it out your moronic ass—you obviously have no idea what a terrorist is or how they behave, and you obviously haven’t been paying attention for the last five years. The day our soldiers dress in civvies, strap on a bomb, and detonate in civilian marketplaces, then you can get on your high horse and pretend that we are same as them.

    Oh, no! You sure showed that strawman who is boss!

    You are too funny, Mac. By the way, your nanny-statist cowardly colors are showing…I can just hear you crying into your pillow at night, “Save me daddy Bush from the evil terrorists and liberals!”

    For those playing along at home, Mac is the fucktard who thinks that it’s ok to break the Geneva Conventions because terrorists don’t adhere to them AND thinks that we should show those evildoers how we have the moral high ground and are better than them.

  101. 101
    Pb says:

    these prisoners are better treated than the citizens in US prisons

    Except for the ones who have been beaten, or tortured, or killed, right? Oh, I forgot, it’s really a friggin’ country club over there, with a few zany ‘pranksters’ with a penchant for torture. Try the lemon chicken, I hear it’s quite good.

  102. 102
    Mac Buckets says:

    And so that is what you think binds the U.S. to the Geneva Conventions? Good grief.

    I’m sorry, what do you think binds any agreement together — why even have a treaty if you don’t require all sides to agree and sign?

    Example: In WWII, Russia and Japan hadn’t signed the Geneva Conventions. So when it came to their captives and their captured, all bets were off. Geneva was not applied.

    There’s also the issue of legitimate, Geneva-approved, in-kind reprisals against combatants who, say, behead their captives on the internet (not suggesting that our reprisals be literally “in-kind” in that case), but I suspect that’s for another time.

    Look, a country can go off and sign all the treaties they want with groups that they know won’t follow them. An army can even abide by treaties that the other army hasn’t signed. That’s their option, but it doesn’t make them heroes — it makes them suckers.

  103. 103
    Mac Buckets says:

    You are too funny, Mac. By the way, your nanny-statist cowardly colors are showing…I can just hear you crying into your pillow at night, “Save me daddy Bush from the evil terrorists and liberals!”

    Very funny.

    Lefties on 9/12/01: “Why didn’t Daddy Bush stop the terrorists on 9/11? We need an investigation! What must Daddy Bush do better to protect us from the terrorists next time! Hurry, before it’s too late!!”

    Lefties 2006: “What terrorists? There’s no such thing as terrorists! We don’t need Daddy Bush to protect us from imaginary terrorists! Anybody who says we do is a crybaby!”

    And there was no strawman there. You said fairly plainly that we were living to the standard of terrorists because we hadn’t been adhering to Geneva. But you knew that already, and you knew it was total crap — you just had nothing else to say!

  104. 104
    Pb says:

    An army can even abide by treaties that the other army hasn’t signed. That’s their option, but it doesn’t make them heroes—it makes them suckers.

    Actually, it makes them law-abiding, when their treaty obligations happen to apply anyway, as they do in this case. Law-abiding, honest, and not ‘suckers’ at all.

    And while we’re talking about WWII, Don’t Be A Sucker!

  105. 105
    Mac Buckets says:

    AND thinks that we should show those evildoers how we have the moral high ground and are better than them.

    Actually, what I said was that this was a possible outcome, and that monkeys might fly out of Wayne’s butt. I’m not stunned you didn’t get it.

  106. 106
    Pb says:

    and that monkeys might fly out of Wayne’s butt

    Sheah, right! Party on, sphincter boy!

  107. 107
    Mac Buckets says:

    Actually, it makes them law-abiding, when their treaty obligations happen to apply anyway, as they do in this case. Law-abiding, honest, and not ‘suckers’ at all.

    Law-abiding? Why didn’t Geneva apply to non-sigs Russia and Japan in WWII, but it does apply to non-sigs who don’t adhere to Geneva now? I’m not saying there hasn’t been further legal interpretation, but I’ll need more than your word for it. Barring that legal change, I’ll stick with “sucker.”

  108. 108
    Pb says:

    I’m not saying there hasn’t been further legal interpretation, but I’ll need more than your word for it.

    You don’t have to take *my* word for it… see what five Supreme Court justices have to say about it instead.

  109. 109
    John S. says:

    And there was no strawman there.

    Of source there was, it’s your favorite game to play! You throw two new strawmen on the fire with your Lefties on 9/12/01 – Lefties 2006 nonsense.

    You said fairly plainly that we were living to the standard of terrorists because we hadn’t been adhering to Geneva.

    Oh, I said that? Really? Funny, I thought I asked YOU a question:

    So which is it, Mac? Do we lower ourselves to the standards of terrorists or do we live by a higher code than our enemies?

    I thought it was a pretty straightforward question. Do we shred the Geneva Convention and torture at will or do we follow the Geneva Convention despite the fact that the terrorists will not? And yet, you were incapable of answering. Could that be because you already knew that answering would show what a morally bankrupt piece of shit you are?!

    I think we already have the answer to that.

  110. 110
    John S. says:

    Actually, what I said was that this was a possible outcome, and that monkeys might fly out of Wayne’s butt. I’m not stunned you didn’t get it.

    Actually, what you said consisted of two parts. In the first part – which I addressed – you said:

    The ruling doesn’t add up to much, I think, and it might show the Muslims a thing or two about how civilized people act, even toward the thugs who want them dead.

    The second part – which I did not address – pertained to the “possible outcome”:

    Who knows, maybe they’ll respond positively to our magnanimous gesture!

    But hey, you’re so full of shit that I’m not surprised you can’t even accurately represent your own fucking posts.

  111. 111

    […] Concerning the recent Hamden v. Rumsefeld decision: “I’ve got to say that this decision is a decisive victory in the war to spark ridiculous right wing commentary.” —Andrew, from a comment “Guantanamo Treatment Illegal, Says SCOTUS” […]

  112. 112
    Eural says:

    And there was no strawman there

    No there’s not – it is entirely possible (and I would claim quite probable) that Bush actually did screw-up and fail to do his job prior to 9/11 and then proceeded to screw-up and fail to do his job since then. That’s called incompentence and its why he’s in the running for Worst President. Ever.

  113. 113
    demimondian says:

    Mac…you do know what happened to the Commandants of the German camps in which Russians were held during WWII, right? A date with a war-crimes court, which lead, in many cases, to an even more exciting dance date with Mademoiselle Noose.

    Violating Geneva is a war crime if your country is a *signatory*.

  114. 114
    Steve says:

    Law-abiding? Why didn’t Geneva apply to non-sigs Russia and Japan in WWII, but it does apply to non-sigs who don’t adhere to Geneva now? I’m not saying there hasn’t been further legal interpretation, but I’ll need more than your word for it. Barring that legal change, I’ll stick with “sucker.”

    Common Article 3, the part of the Geneva Conventions we’re talking about, applies by its own terms only to conflicts that aren’t between nations.

    Every one of the 8 Justices who decided this case, by the way, agrees that it’s perfectly reasonable to interpret Common Article 3 this way. The only point of debate is that Thomas, and the judges who joined him in dissent, thinks that the President has a different interpretation that’s also reasonable, and because it’s a treaty the President’s interpretation is the last word.

    But the idea that you could just read the language of Common Article 3, and be like “oh come on! obviously this could never apply to al-Qaeda” isn’t how Justice Thomas sees it, and isn’t how the liberal Justices see it, either. They’re all in agreement that it’s a plausible reading to apply Common Article 3 to al-Qaeda. See here for more.

  115. 115
    Pb says:

    Steve,

    I stand corrected. Mac, see what *eight* Supreme Court justices have to say about it…

  116. 116
    John S. says:

    From Steve’s link:

    Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees.

    What was that Mac was crowing about before…

    I’m not saying there hasn’t been further legal interpretation, but I’ll need more than your word for it.

    Is the word of the Supreme Court enough for you, Mac?

  117. 117
    mrmobi says:

    AVI:

    And Unitary Executive is a rather humorous exaggeration of what is happening here in the eyes of one whose has family from Romania, where they really know what dictatorship is.

    Point taken AVI, but what really sticks in my craw about Gonzalez is that he is the Attorney General. In grade school, they taught us that no one is above the law. I still believe that, Romania notwithstanding.

    Yes, I know, it might seem fevered to you that some feel we are losing our Democracy here, but I have very unpleasant memories of a man named Nixon, and Bush makes Nixon look like an amateur, in terms of sheer arrogance and dirty tricks.

    In the case of the Gitmo prisoners being better treated than US prisoners, you are probably right, but let’s not forget they can kick out the press or anyone else they choose to whenever they feel like it. My point, AVI, is that we (the US) are supposed to be better than this.

    It will be interesting to see how the Republican party frames the run up to legislation to comply with this ruling. I expect lots of Americans will find themselves being called traitors and partners of AQ. So goes our politics. Thank you for your response.

  118. 118
    Mac Buckets says:

    Common Article 3, the part of the Geneva Conventions we’re talking about, applies by its own terms only to conflicts that aren’t between nations.

    Ah, gotcha. I might’ve known you’d be the only one here with anything of value to offer, Steve. Thanks.

    So CA3 applies when it’s a conflict between a state and a non-state (like a rebellion against a ruling government), which couldn’t have signed the Conventions. So they’re assuming that al-Qaeda would’ve signed the Conventions if The Caliphate were a reality, since they’re all about humanity toward their enemies — OK. Whatever.

    From the first analysis at Volokh, I think the majority interpretation of CA3 points out a short-sightedness in the Geneva Conventions with regards to a war against a religious, terrorist army. Also, the protections offered indicate that the Conventions assumed that the “rebels” would be the ones more likely to be brutalized. Whoops! They sure got that one wrong!

    Now, what about Geneva-sanctioned reprisals for the “rebels'” repeated violations of Geneva? I think holding a prisoner at Gitmo would be the mildest reprisal against the beheaders! How do we get that ball rolling?

  119. 119
    demimondian says:

    Mac, you’re word-spinning.

    Flaws in the Conventions don’t change the legal and moral basis for obeying. If we don’t like them, we need to change them; the Conventions were not delivered to us on stone tablets. [Cue Mel Brooks as Moses here.] It’s really the same thing as FISA — if the administration wanted to change the law, there was a way to do it. Having failed to pursue that route, the administration has lost its leverage.

    For what it’s worth, I think your purported flaws are non-sensical. But that’s irrelevant to the SCOTUS decision today; we went to war with the laws we had, and we are obliged to obey them. It’s one of the prices we pay to live in a civilized society.

  120. 120
    demimondian says:

    I also want to point out the I doubt that UCMJ can be amended to get out of Justice Stephens’ opinion. He says:

    The absence of any showing of impracticability [of trying Hamdan in a true court-martial] is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839(c). Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53-62

    Get that? The Court’s majority held that UCMJ would have jettison the “basic right” of presence for these tribunals, as contemplated, to pass muster. That’s a pretty huge burden — the whole point of this affair has been to keep Hamdan and his representatives out of a court martial, where they could actually challenge the evidence against them.

    By the way, Steve, that paragraph shows pretty clearly that a change to UCMJ to allow a trial of Hamdan to be tried in a commission would constitute a change in the rules of evidence, which are *by design* different in the Guantanamo Tribunal from a true court martial. That would rise to an ex post facto change of the statute, as it’s usually interpreted.

  121. 121
    Richard 23 says:

    For more informed commentary:

    Supreme Court Rules in Favor of Jihad

    Er, maybe not. The comments are atrocious.

  122. 122
    Steve says:

    I think holding a prisoner at Gitmo would be the mildest reprisal against the beheaders! How do we get that ball rolling?

    I’m with you, brother. I think it would be preferable, however, to choose a guilty person to hold at Gitmo, as opposed to exacting our reprisal on anyone who comes within range.

    I seriously don’t give one fig for the rights of terrorists and killers – not even the rights which they are legally guaranteed, to be brutally honest. Someone else can make a priority out of protecting those. But I do think it’s pretty darn important to use the right procedures in order to tell the guilty from the not guilty.

  123. 123
    t. jasper parnell says:

    I seriously don’t give one fig for the rights of terrorists and killers – not even the rights which they are legally guaranteed, to be brutally honest. Someone else can make a priority out of protecting those. But I do think it’s pretty darn important to use the right procedures in order to tell the guilty from the not guilty.

    Isn’t this kind of argument a slope most slippery? Assuming we put in place a system for separating sheep from goats; isn’t the assumption here implict that the systme of separation is safe from failure? Isn’t the point of creating a system that respects rights, or perhaps creates them, all through the process, for initial sheepdom through to goat appropriate punishment, that it limits the possibility of human frailty, say the quite understandable hatred of goats, for in advertently giving to the one the punishment or reward intended for the other?

    What was it Christ said about wheat and tares?

  124. 124
    t. jasper parnell says:

    From the first analysis at Volokh, I think the majority interpretation of CA3 points out a short-sightedness in the Geneva Conventions with regards to a war against a religious, terrorist army. Also, the protections offered indicate that the Conventions assumed that the “rebels” would be the ones more likely to be brutalized. Whoops! They sure got that one wrong!

    That is the problem with laws and treaties, they are necessarily constraining, which is to say short sighted. How could the framers of a law, or an amendment, forsee the future? Yet absent a generational rewriting of law (or the opting out of treaties) are we not necessarily bound to the short sightedness of our predecessors as our successors are bound to our short sightedness. Had the framers been able to overcome common prejudices against women and slaves imagine what a cheery world it would have been.

    Don’t like the constraints the GC place on the CiC as he orders the AFs of the USA? Opt out. Don’t like the messes the 4th or 1st Amendments create? Repeal them. It worked with drink, right?

  125. 125

    Oh this is rich!

    American Constitution Society, regarding the Hamden decision

    Ironically, Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.

    Justice Thomas must be a high ranking officer in the 82nd Chairborne. :-)

  126. 126
    Andrew says:

    Geez, TOS, Stevens was only awarded a Bronze Star while he was in military intelligence. I think we can see how uniquely unqualified he is to rule on such matters.
    /snark

    A number of posters on some wacko blogs like lgf and B4B have already made death threats against Stevens and the other Justices. I would not mind seeing similar protections applied to the Supreme Court Justices as are to the President, making it illegal to call for their assasination. Also some better protective services are in order, considering Souter was mugged as he jogged alone two years ago.

    I honestly thing that some on the extreme right wing are insane eough to threaten the Supreme Court now.

  127. 127
    Mac Buckets says:

    Flaws in the Conventions don’t change the legal and moral basis for obeying. If we don’t like them, we need to change them; the Conventions were not delivered to us on stone tablets.

    That’s great. Just great. Only I said we should obey the (moronic, in this case) GCs — especially the part about reprisals! I’ve totally given up on you guys and your inability to read two sentences without totally misinterpreting both of them.

    For what it’s worth, I think your purported flaws are non-sensical.

    Geez, you could’ve at least left a reason. I’ll even reiterate mine. I mean, aren’t treaties designed to be tit-for-tat? You give up something, I give up something? Like a peace treaty — I stop routing your people if you disarm and maybe give me some land. Or a missile treaty — I stop with the ABMs if you do also.

    I’ve never seen a treaty that says “You keep treating our prisoners like dogs, keep beheading them at your whim, continue dragging their dead bodies through your streets, keep blowing up civilians at the market… and in exchange, we agree not to hurt your prisoners’ feelings with mean things like questions, because those might assault his dignity.”

    Again, that’s not a treaty, that’s being a huge, gigantic, all-day sucker.

  128. 128

    Antient Purple,

    How about this?

    If the Supreme Court of the United States really takes it upon itself to extend Geneva Convention Rights to terrorists and illegal combatants, George W. Bush ought to take Andrew Jackson’s position, and tell Justice Stevens to go enforce his own ruling.

    href=”http://neveryetmelted.com/?p=1211″>At this site.

    There are probably others.

  129. 129
    John S. says:

    “You keep treating our prisoners like dogs, keep beheading them at your whim, continue dragging their dead bodies through your streets, keep blowing up civilians at the market… and in exchange, we agree not to hurt your prisoners’ feelings with mean things like questions, because those might assault his dignity.”

    The view from fantasyland…

    Where America is free to ignore the Geneva Conventions so that we can continue running terrorist day spas. If you get a chance, try the Chicken-a-la-King, I hear it’s to die for!

  130. 130

    mrmobi, we seem to be among the few having an actual conversation here. I reflected on your comments, adding them to others I had read on left-leaning blogs over the past few years, and puzzled again: this seems like an intelligent, thoughtful person. From whence comes this idea of burgeoning tyranny, dictatorship, grab for power – which I and most conservatives find simply bizarre? I posted on the subject last night @ http://assistantvillageidiot.b.....power.html. Short version: the power structure in American society is so diffuse that no one has anything approaching the authority of an autocrat, and even the most diabolical power-mad administration could only move their influence on world events from 1% to 1.03%. This just came into focus for me, so the expression of it may be ragged.

    As to torture, I had previously posted on that as well @ http://assistantvillageidiot.b.....lence.html

  131. 131
    searp says:

    It seems to all come down to honesty and transparency. Nothing done in secret is transparent, and a quasi-secret like Guantanamo can be characterized dishonestly with impunity. The politics of the matter should accord with the facts, but almost certainly will not.

    SCOTUS didn’t issue a pro-terrorist ruling, they issued a pro-law ruling. Nothing is more American. Sure, that makes life difficult in some respects, but it also assures the rule of law and, in the end, justice. Our commitment to law and justice is the single most important thing we have in the GWOT. The ruling will enhance our security.

  132. 132
    demimondian says:

    Geez, you could’ve at least left a reason.

    You’re right, I could have. You’re also right that I didn’t.

    Is that rhetorically unfair? You betcha. Is it unkind? Absolutely. However, I’ve got a finite amount of time in this life, and there’s no evidence that the time I’d spend explaining my reasoning would be either compensated or appreciated.

  133. 133
    mrmobi says:

    AVI

    From whence comes this idea of burgeoning tyranny, dictatorship, grab for power – which I and most conservatives find simply bizarre?

    I read your linked posts. Both present good arguments. One area where you might be missing the point is that, I think, it doesn’t really matter if the Presidents’ power only increases from 1% to 1.03% as you say, because what we are experiencing here is the beginning of a “death by a thousand cuts.” Not some sudden power grab, but a slow, steady repeal of our most basic freedoms, along with a rejection of our most fundamental values.

    I think that you are too moderate in this respect. You know, the “all that’s necessary for evil men to succeed is for good men to do nothing” idea (forgive my paraphrasing). I’m not saying Bush is evil, just that as citizens we shouldn’t become complacent about these incursions against our basic rights as free people.
    You should look to the second half of this famous campaign slogan, which cost it’s author an election:

    “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue”

    This was widely mis-interpreted as meaning he would be a loose cannon if elected. Not true, of course, but I whole-heartedly agree with the second sentence. I guess I’m cherry-picking, but there it is.

  134. 134
    Don says:

    I am amazed every time I run up against people who do not share my view that we should extend due process and reasonable treatment to every prison, foreign or domestic, not because we HAVE to but because we SHOULD.

    Are there really so few of us left who feel a desire to be that shining beacon, an example to other countries?

    Personally I grew up past “well, HE hit ME first!” a long time ago as an argument for how to behave.

  135. 135
    scs says:

    I’m no lawyer, so maybe someone can explain to me how we are supposed to try foreign citizens on crimes they committed in other countries, here, under US law in regular US courts. I don’t think it’s going to work. The only courts that would work for that would be international courts or the courts where the crimes where committed, i.e. Afghanistan.

    So for example, if we seized a bunch of Saudi Arabs in Afghasnistan fighting for the Taliban, what law could they have broken, other than belonging to a terrorsit organization such as the Taliban? But on the other hand, half of the Afgthan males belonged to the Taliban, voluntariy or not, so why would a Saudi be charged for terrorism when an Afghan wouldn’t be, for the same act?

    See there is no “law” against what this hypothetical Saudi did. However, we know that if some Saudi travelled a thousand miles to sit in freezing cold snow covered mountains to meet Bin Laden and support the Taliban, he’s probably not someone we want out running around. That’s why we have to continue to hold them “illegally”. Have Congress change the law and have military tribunals so at least we have a record of who these detainees are and some public knowledge of what they did, and then throw away the key.

  136. 136
    Darrell says:

    Don Says:

    I am amazed every time I run up against people who do not share my view that we should extend due process and reasonable treatment to every prison, foreign or domestic, not because we HAVE to but because we SHOULD.

    Imagine if during Vietnam or WWII, we had to extend due process rights as you are advocating, to every enemy, tens and hundreds of thousands of them, captured on the battlefield.. imagine what an incredible clusterf*ck that would have been. Only the stupidest of the stupid would advocate such a thing. NO country does this in war for obvious reasons, yet you and so many others on your side want to shackle us. Actually, those captured terrorists are in fact lower than POW’s, as the head choppers do not follow civilized rules of war.

    Are there really so few of us left who feel a desire to be that shining beacon, an example to other countries?

    Puh-leeze

  137. 137
    John S. says:

    Puh-leeze

    Darrell and MacBuckets: pro-torture, pro-relativism, pro-anything that will stop them from wetting their beds at night.

  138. 138

    Point taken, mrmobi. I am also concerned about the details, which can grow into larger evils and larger problems. I have never advocated mistreatment of anyone. Example: I have worked in a psychiatric hospital for almost 30 years. Frequent accusations of abuse are made against the staff.

    Sometimes it is true. It is unacceptable, and I have personally turned people in for abusive behavior. But I am also familiar with advocacy organizations and rights attorneys who work very hard to make fairly innocent acts sound like horrendous abuses. The eventual result is that we are unable to treat desperately ill people – or are unable to protect society by keeping dangerous people locked up. I am assuming on no evidence but that experience that our treatment of prisoners is much the same. The reports of their good treatment come from credible sources, the reports of ill-treatment from poor sources. And yet I believe there probably is abuse going on. I just believe it is likely to be the work of individuals, or of one-off events under provocation. Sure, fire the bastards. Put ’em on trial. But the easy assumption that there is enormous abuse of people simply because all of the information is not released holds no credibility for me. Similarly, the idea that these people are given no rights because they do not have rights in a particular category is not persuasive to me. Reports – as suggested here – that there are killings, beatings, torturing going on just because people think Bush capable of it, do not have foundation. That many people believe this without evidence I find more damaging to the Republic than the miserable, but hardly unexpected, results of war.

    Don, my comment is similar to you. “Due process” is not a one-size-fits-all. The fact that the prisoners do not fall into the rights categories you think they should does not mean that they are being mistreated in any way. Being deprived of liberty in a strange place is of course miserable in and of itself, and uncertainty about the future magnifies that.

    I do share your concern that some commenters here seem to be unwilling to assign basic rights to prisoners, and can see how that could spill over into you worrying that our military, intelligence organizations, and government might contain people who would allow or encourage that. I would only caution not to leap to the worst conclusions because we lack information. There are many reasons for secrecy, not all of them evil. Even the public revelation of their identities and where they were found gives valuable information to those who would gladly kill us.

  139. 139
    John S. says:

    There are many reasons for secrecy, not all of them evil.

    By all means, list them. Perhaps in order of their virtue. And “National Security” can only be used once.

  140. 140
    Mac Buckets says:

    You’re right, I could have. You’re also right that I didn’t. Is that rhetorically unfair? You betcha. Is it unkind? Absolutely. However, I’ve got a finite amount of time in this life, and there’s no evidence that the time I’d spend explaining my reasoning would be either compensated or appreciated.

    Well, demi, I think you’re missing the point of this comments board, then, versus a Kos/Freeper echo chamber. I mean, if you want an echo chamber, there are pleanty of sites where you can post the most ridiculous nonsense (as long as it’s the straight party line) and no one will ever call bullshit on you. I think John and Tim are pretty proud that they maintain a place where commenters of any stripe — from Darrell to Richard — can participate, and are encouraged to back up what they say by other commenters.

    As far as my “appreciating your reasoning,” on this very page I’ve already been informed by other commenters and come to a stance that is opposed to my original one, so your “it would be lost on one such as you” dodge rings hollow, doesn’t it?

    I mean, unless you’ve just got nothing of value here, and don’t want to admit it.

  141. 141
    Mac Buckets says:

    Where America is free to ignore the Geneva Conventions so that we can continue running terrorist day spas. If you get a chance, try the Chicken-a-la-King, I hear it’s to die for!

    John s, if all you’ve got is a little weak swing at a bit of hyperbole buried in my comment, then just don’t even bother posting. Just assume that I’m not interested in a lesson on literalism from the idiot who posted:

    there is clearly no advantage to Bush undermining the rule of law – other than to get around the heathens that try to deny him executing the will of God, for which he has clearly been selected to do and is answerable to nobody but the Lord himself.

  142. 142
    Bruce Moomaw says:

    “Imagine if during Vietnam or WWII, we had to extend due process rights as you are advocating, to every enemy, tens and hundreds of thousands of them, captured on the battlefield.. imagine what an incredible clusterf*ck that would have been. Only the stupidest of the stupid would advocate such a thing. NO country does this in war for obvious reasons, yet you and so many others on your side want to shackle us. Actually, those captured terrorists are in fact lower than POW’s, as the head choppers do not follow civilized rules of war.”

    Er, Darrell. Does that include the Japanese POWs during WW II — for whom we also outlawed torture?

    By the way, that ABC/Washington Post poll earlier this week (before the Hamdan decision) showed that 71% of the American people want all the Gitmo inmates to be “either charged with crimes or treated as POWs” — which is fine with me (and also provides an excellent slogan with which the Dems can counter any GOP attempt to smear them as pink traitors). I had hoped that most of this country’s people had not let fear turn them into swine, and apparently they haven’t.

  143. 143
    Bruce Moomaw says:

    And to repeat: anyone ignorant enough not to know that the Gitmo inmates include a very large fraction of honest-to-God innocents — and, more shockingly, that the Pentagon KNOWS they’re innocent and is continuing to hold them just to continue concealing Rumsfeld’s incompetence — is cordially invited to read Kevin Drum’s reasoned, detailed and bloodcurdling reports on the subject among his blog entries for Feb. 15, Feb. 17, and, well, yesterday. Which, I think, should be adequate even to explain to the most seriously intellectually challenged posters on this thread why it is very unwise to give any president dictatorial powers in wartime (as the Founders, of course, did not, contrary to the malignant fairy tales of Yoo and Addington).

  144. 144
    John S. says:

    John s, if all you’ve got is a little weak swing at a bit of hyperbole buried in my comment

    Hyperbole? It’s pretty clear that you are an ardent supporter of torture and think we should kick the Geneva Conventions to the curb for the sake of the GWOT. But hey, whatever you want to call it.

    Make sure mommy tucks you in extra snug tonight so that the terrorists don’t get in under your covers.

  145. 145
    Mac Buckets says:

    Make sure mommy tucks you in extra snug tonight so that the terrorists don’t get in under your covers.

    Dumbest. Meme. Attempt. Ever.

  146. 146
    melior (in Austin) says:

    There are many reasons for secrecy, not all of them evil.

    Now subtract the reasons that no longer apply when a secret FISA court is required to review and provide oversight (in order to prevent evil).

    Hmm… any reasons left that aren’t evil now?
    Doesn’t look like it.

Trackbacks & Pingbacks

  1. […] Concerning the recent Hamden v. Rumsefeld decision: “I’ve got to say that this decision is a decisive victory in the war to spark ridiculous right wing commentary.” —Andrew, from a comment “Guantanamo Treatment Illegal, Says SCOTUS” […]

  2. Supreme Court decides on Hamda v Rumsfeld

    UPDATE @ 8:35AM Pacific: Balloon Juice: “The Bush administration actually isn’t that hard to figure out. They love secrecy because they know that they are breaking the law. Part of that, probably a small part, comes from actual malicious intent…

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