Defending the Truth

The United States Supreme Court has ruled that prisoners held at Guantanamo Bay can take their case that they are unlawfully imprisoned to the American courts.
BBC News Online looks at the issues involved.

What did the Supreme Court say?

The overall ruling of the court was: "United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay."

The court then described how this should happen. It accepted the argument from lawyers from the Center for Constitutional Rights that the Federal District Court in Washington DC (to which the case was first brought) does have jurisdiction to hear the prisoners' petition, under the "habeas corpus" law, that they are held "in custody in violation of the Constitution or laws or treaties of the United States."

What is habeas corpus?

Habeas corpus is a Latin phrase meaning: "You have the body." It is the name given to an ancient legal device under English common law (a mixture of judge-made laws, precedents and statutes). Habeas corpus was continued in American law after independence.

If a writ of habeas corpus is issued by a court, the person holding a prisoner (the "body") must bring the prisoner to the court and justify the detention. It has been a basic instrument under which courts in common law systems have protected citizens against wrongful imprisonment.

Why did the Supreme Court rule in the prisoners' favour?

The court was divided 6-3. The majority opinion was written by Justice John Paul Stevens and hinged on the definition of "sovereignty." He argued that, even though Cuba retained "ultimate sovereignty", the United States exercised, in the words of the lease from Cuba, "complete jurisdiction and control" at Guantanamo Bay.

Therefore federal jurisdiction applied there and "aliens, no less than American citizens, are entitled to invoke the Federal courts' authority."

The court rejected an argument that a case arising out of World War II should be followed in this instance (see below), saying that the two were quite different.

Justice Stevens quoted a predecessor on habeas corpus: "Executive imprisonment has been considered oppressive and lawless since [King] John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land."

The majority was formed by the liberals on the court, joined by the "swing" justices. One of the latter, Justice Sandra Day O'Connor, said that the US government could not have a "blank check" even in time of war.

What did the minority on the Court say?

The minority opinion, on behalf of the three core conservatives, was written by Justice Antonin Scalia.

He based his argument on the "Eisentrager" case. This arose out of the arrest in China of a number of Germans agents accused of helping the Japanese after the surrender of Germany in World War II.

Their leader, who called himself Lothar Eisentrager though his real name was Ludwig Ehrhardt, had hired himself to the Japanese after the German surrender. He was sentenced to life in a prison in Germany but appealed for a writ of habeas corpus. The Supreme Court ruled that this did not apply because he was an alien outside US sovereign territory. He was eventually freed anyway under an amnesty.

Justice Scalia said that the "carefree" court's "spurious" ruling on Guantanamo was a "wrenching departure from precedent" and "boldly extends the scope of the habeas statute to the four corners of the earth."

The consequence, he said, was "breathtaking." It enabled "an alien captured in a foreign theater of active combat to petition the Secretary of Defense." It brought the "cumbersome machinery of our domestic courts into military affairs".


Is this the end of the prisoners' "legal black hole"?

It should be the beginning of it, though getting access to the US courts does not mean the prisoners necessarily getting their freedom. But they do now have much more of a legal status and the courts might order a full clarification.

The Defense Department announced (on 7 July) that nine more prisoners will face trial by military commission, bringing to 15 the number of prisoners who will be tried in this way.

On 7 July, the Pentagon announced that cases would be reviewed by military tribunals. Why?

The Pentagon is responding to the Supreme Court ruling and is trying to pre-empt any criticism from a US court. It is setting up three-officer review panels to determine whether a prisoner is a combatant.

This is supposed to happen under Article 5 of the Third Geneva Convention which states that if there is doubt as to whether someone was a combatant, a "competent tribunal" should determine his status. The conventions have not been applied to the Guantanamo prisoners, so the panels, provision for which exist in US military law, were not convened. The decision to set them up now does not mean that Washington is suddenly going to apply the conventions but it is following them more closely.

The prisoners' lawyers are likely to argue in court that the panels are not enough and that the detainees should be properly charged or set free.

Whatever happens in the District Court is likely to be appealed in a procedure which could go on for many months.
http://news.bbc.co.uk/2/hi/americas/3867067.stm

Heres a more recent article and link on this:

http://writ.news.findlaw.com/mariner/20020528.html

I think we should load EVERY detainee at Gitmo onto one jumbo jetliner. Let them provide their own pilots. Let them fly to wherever they want to fly.

...or, shall we say, start flying.

That would be funny if it was not so sick. The truth is only a few of the detainees would attack us. Like it or not, and I say this to you way too much, this country does have laws that even the president is not allowed to break. The detainees are not charged as is the law of this country. That base is subject to these laws (This was decide by the supreme court).

Court ruling leaves Bush in quandary
If administration follows codes of justice, detainees may be harder to convict

By Richard B. Schmitt
Los Angeles Times
WASHINGTON -- The Supreme Court decision striking down the tribunal system created by the Pentagon for trying accused enemy combatants at Guantanamo Bay has apparently presented the Bush administration and its allies in Congress with two choices -- both fraught with risk.

They can use the Republican majorities in the House and Senate to put a quick congressional seal of approval on something close to the existing system but run the risk that it, too, will be struck down by the court.
Or they can follow the path suggested by the court and devise a system embracing procedural and other principles of the U.S. Uniform Code of Military Justice and the Geneva Conventions but risk the possibility that few, if any, of the accused terrorists will be convicted.
And both choices, as well as attempting to chart a middle course, could set off the kind of protracted, internally divisive debate that the White House and GOP political strategists would not relish with the November elections approaching.
Indeed, Sen. Dianne Feinstein, D-Calif., issued a warning Sunday: "Republicans will rue the day if they politicize this," she told ABC's "This Week."
Two Republican senators, prospective GOP presidential candidate John McCain of Arizona and Judiciary Committee chairman Arlen Specter of Pennsylvania, have made clear their desire to dig into the problem.
"We're going to have to dot all the I's and cross all the T's on this legislation to make sure it passes muster," Specter said Friday.
As a result, the court's decision has set up what may become the biggest test so far of the government's ability to reconcile a maximum effort against terrorism with traditional American standards of legal fairness and decency. And the test has been almost five years in the making.
Since the Sept. 11, 2001, terrorist attacks, the Bush administration and its supporters have argued that extreme measures are necessary and justified against a foe that employs extreme tactics and rejects accepted moral standards. Civil libertarians, many Democrats and now the Supreme Court have argued that the war on terrorism must be waged in a manner compatible with established legal and ethical principles.
The challenge is to devise a system that will survive later judicial review, yet permit successful prosecution of the enemy combatants held in Guantanamo Bay.
Many legal experts say that will be hard to do.
"Can you set up a tribunal that will pass what we now know to be the judicial standards the Supreme Court is going to impose? The answer is unequivocally 'yes,' " said John Hutson, a former Navy judge advocate general and dean of the Franklin Pierce Law Center.
"Is the prosecution going to be able to get convictions?" he said, "I think there is a chance you won't see any."
That's because a trial system capable of withstanding judicial review would likely exclude much of the evidence the government has gathered on battlefields and in prison interrogation rooms.
The military code that the court pointed to as a road map is "a good framework for setting up tribunals," McCain said Sunday on "This Week." The Uniform Code of Military Justice mirrors many of the procedural rules of U.S. civilian courts and the bedrock principles that the court mandated last week.
Yet experts acknowledge that one result of embracing such a system could be that few, if any, of the Guantanamo detainees the government has identified for trial could end up being convicted -- or even going to trial.
http://www.indystar.com/apps/pbcs.dl...607030372/1012

I disagree totally with the ruling as I am sure you all expected. Since when do enemy combatants against the USA who are not fighting for a nation or wear a uniform of a nation have any right to the Geneva Convention? When did Al queda or Hamas, etc ever sign on? They also should have no rights that US citizens have in a court of law. They are terrorists for cripe sake. Totally unbelievable. What is the left going to say when a big bombing occurs and they find out that one of these murderers that the left let go is responsible? They will blame Bush.

Do you even comprehend what the Geneva Convention has to say in the first place???
There was MORE than just one Geneva Convention...


HOW do you classify these people as "terrorists"?
You conclude they are "terrorists" without any facts. Without any trial.

THAT is the "unbelievable" thing...


This is ridiculous!
Nobody is saying that we should just let them go.
We're asking for TRIALS to ascertain their guilt.
If they are found guilty, proceed accordingly.

What is so difficult to comprehend about that?

Provide me with the Geneva convention part you are applying to the captives in Guantanamo that gives them the same rights as soldiers in uniform from a recognized nation.

I classify them as terrorists because they were taken from the battle field fighting Americans. These guys weren't rounded up because they were working in McDonalds.

It is positively AMAZING how quick you are to demand proof of things from others while you provide INCREDIBLY LITTLE yourself.

And I never said that had the "same rights" as soldiers in uniform.
Do you comprehend that the Geneva Convention covers MORE than just PoW's?


You classify them as "terrorists" out of ignorance.
For those who were captured on the battle field, it should be pretty damn easy to prove, shouldn't it? So why balk at having to provide reasonable proof?

The truth is that YOU DO NOT KNOW where these guys all came from, because the government is doing their damndest to KEEP THAT INFO from the American public.

If they did come out with a statement that said, "Every one of these prisoners came to us because we captured them attacking U.S. soldiers", we wouldn't be having this problem.

You assume WAYYYYYY too much.