I hope this is good news. That is, I hope this doesn't mean that detainees will now be shipped to our double-plus secret detention camps in Somalia and Uzbekistan.
It is good news that Anthony Kennedy has not gone insane, though.
That is, I hope this doesn't mean that detainees will now be shipped to our double-plus secret detention camps in Somalia and Uzbekistan.
Oh, don't be such a downer. The Court can't stop the adminstration from committing crimes -- that's just not within its powers. But it can stand up and define what a crime is.
It's a filthy inner tube of air for our drowning republic to suck on, but still, joy.
It's my understanding that the administration has been actively trying to avoid situations where the Supreme Court can make a decision on its activities.
I also personally know conservatives who salivate at the prospect of a president openly defying the Supreme Court -- presumably to counterbalance the judiciary's dictatorial reign of terror over our nation.
I really hope Bush doesn't go all Andrew Jackson, "the Court has made its decision, now let them enforce it" now.
7: He won't. I have no idea what the Supreme Court just said, or what requirements it imposes on the Executive, but I assume the Administration can "all deliberate speed" this for at least the length of its remaining term. IANAL, though.
t would have been 5-4 though. I'm pretty sure that Roberts voted the bad way when he was on the DC circuit. So blah. We haven't completely fallen into the abyss, but I wouldn't see this as a turning of the tide.
It's not the size of the boat that makes the wave, it's the motion of the ocean.
I feel oddly sad at being happy over the Supreme Court being required to confirm that yeah, the Geneva Conventions aren't just suggestions.
I'm pretty sure that Roberts voted the bad way when he was on the DC circuit.
Yep. This overturns his decision.
4 gets it exactly right. The problem we've had is that, when the President dances on the line of legality, there's no one but a few members of the press even suggesting it's deeply insulting to the idea of law to do so. It's vitally important that the other two branches of government start doing their job and providing checks to this executive loose cannon. Any branch of government, given too much power, will fuck up the country and do terrible things.
So Roberts recused himself? hmm. Last year, when Roberts was confirmed, someone said that Roberts was like Bush in antecedents, entitlements and assumptions of privilege, only educated and disciplined. Maybe so, I thought to myself, but wouldn't that make all the difference?
re: IANAL. IAAL, and I'll be damned if I know how any of this stuff will shake out. Ok, that overstates it, but not by much. I think more and more these days about my Con Law professor, the celebrated "liberal Strausian" and conscientious dissident George Anastaplo, hands down the greatest teacher of anything I ever had, who once said to me: "If this stuff makes sense to you, think what you've done to yourself."
"If this stuff makes sense to you, think what you've done to yourself."
I often try to tell myself the same thing as I read through the comments here.
As always, I should read the opinion before commenting, but preliminarily: Thank you JPS, RBG, SGB, SHS, and AMK.
It won't do anything, but it means something. To try on a historical parallel, the Emancipation Proclamation didn't free any slaves, either. I don't say this is as significant, but of an ilk, perhaps.
I know I already left a comment here-- wtf happened?
Anyway, I can't believe some of you think this won't do anything. It will almost certainly close/reform Gitmo -- and that's something significant, even if other illegalities persist.
2:I have read thec complete decision. The court said that there are no "illegal combatants" under the broad definition used by Bush, and Genava Art 3 applies to prisoners. At least.
What this could mean, if the administration/America keeps violating its own laws as interpreted by its own highest court, is that the int'l community will feel empowered to slap them down.
Gitmo => Morocco may not be an option, unless America wants to become completely outlaw. But we need help.
And the acceptance of Geneva, and as importantly, the reliance of the UCMJ on Geneva, is critical. The military will not will not explicitly abandon the laws of war. Cause they are the ones who will get hanged.
Crimes and war crimes have been committed. Thus spaketh SCOTUS. I wish we signed ICC, which would mean Bush could get arrested in Belgium tomorrow. I don't what forum exists to crucify these bastards, but Hillary and the rest better put trials in their platforms.
Is there a White House reaction to this yet?
re: 20 and 21
Bob, having skimed the opinion, I am not sure what the basis for many of your claims is. In what was mostly a case of statutory interpretation, the Court held that Hamdan could not be tried by a commission for the crimes with which he had been charged. I missed the part where they said that the President committed war crimes or that any detainees had to be released. Indeed, on the latter point, they were clear that they were not so holding.
But the motion of your ocean means small-craft advisories.
Crimes and war crimes have been committed.
I haven't read them, but I would be beyond shocked if anything says or implies this (and if they did, it would be obvious because the dissents would say, "the majority opinion is so divorced from the law that it accuses many members of the American armed forces of war crimes because they obeyed regulations promulgated by their Commander-in-Chief with the explicit authorization of Congress"
Genava Art 3 applies to prisoners. At least.
23: The opinion certainly does say this (I've only skimmed it as well.) To the extent that we have behaved as if the Gitmo prisoners were not covered by the protection of Article 3 of the Geneva conventions, we have, according to this opinion, violated Article 3. Is every violation of the the Geneva conventions a war crime? Maybe not, but I assume that's the point Bob's making.
Preznit responds. He mostly says he doesn't know what will happen, but he nevertheless insists that the prisoners will not be released.
All he has to do is give them real trials. That shouldn't be hard, considering that they're all hardened killers and we know it.
I'm awfully cynical by now, but I have a sneaking suspicion that nobody in Guantanamo will get any sort of trial until after Bush leaves office.
I find myself becoming completely stoical wrt the government and its acts at this point, neither hoping nor fearing, determined to do the most I can but remain as disassociated emotionally as possible.
From the NYTimes:
Justice Thomas took the unusual step of reading his dissent from the bench, the first time he has done so in his 15 years on the court. He said that the ruling would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."
Good gawd I despise that man.
I am encouraged by the fact he feels that way.
Steven Poole has a nice commentary on Scalia's and Alito's dissents up.
29: Really? Aw, c'mon. They've shown themselves more than willing to accept political inconvenience when the law requires them to do so.
HA HA HA HA HA HA HA.
I missed the part where they said that the President committed war crimes or that any detainees had to be released.
I've just done a fast read through the majority opinion and Kennedy concurrence and a skim of the dissents, but there's a clear 5-3 (5-4 if you count Roberts) majority holding that Common Article 3 of Geneva applies to anybody detained in this war (however you define "war"), and the AMK concurrence rather pointedly states that
By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel.
It's not a big leap from there to the conclusion that the Court today held waterboarding, etc., to be a crime against both the law of war and U.S. domestic law, assuming, as seems safe, that those practices constitute at least "cruel treatment" and perhaps "torture." (Marty Lederman makes the same argument here.)
Personally, I don't know whether to be elated that the Constitution survived the day or deeply depressed that four members of the Supreme Court were willing to throw it away. And the Scalia and Thomas concurrences (at least; I didn't get very far with Alito's) appear to be not just wrong but profoundly dishonest pieces of work.
25:Obsidian Wings is a good site roday, with hilzoy posting and charleycarp very active in comments. charleycarp is representing Gitmo detainees, if you didn't know.
My logic or war crimes:the Gitmo detainees are entitled to Article 3 protections, under today's decision. (Hilzoy has much af Art 3 posted) Art 3 protections are not the full POW protections, but are very close. If they are not protected under Art 3, the admin's contention, that must be determined in a court with either military standards or very close. All have at least these rights.
It has been four years. The rights are plain in Geneva:POW, civilian, or tribunal and shoot them. Confusion is no excuse. The delay is a war crime.
I see nothing in Geneva that allows indefinite postponement of that determination.
And that is to say nothing of the specific treatment in Gitmo, which the admin claimed was permissable because the detainees had no status. But the denying of a just and prompt status adjudication is itself a war crime, which enabled all the othes
26 I guess LB had me covered. Hell, I consider the initial decision to subvert Geneva a war crime. The very words spoken, written, and signed off. The very doctrine of pre-emption, even only as theorey, may be a war crime. Hague and Geneva discuss the "planning of an aggressive or illegal war" as a crime. If we are war-gaming Iran, that may be a crime.
Ok Bob, I agree it's more than a shot across the bow, and implies that these violations occured, as most of us believe they did. And the grouping of the Justices' votes, and the vociferousness of the dissents, suggest your reading is shared, at least as an implication, by them.
4 in a row is too many, and I am not even drunk.
The Lederman link is good. But Lederman's logic that if administration appointees says it ok, it probably is, or at least not prosecutable (OLC, Roberts on District, etc) is incredibly nauseating and should be unacceptable.
"But Goebbels and Schmitt told me Treblinka was legal. Who was I to argue?"
re: 35-37
I guess we have quite different conceptions of the law of war. Further, since the Court went out of its way to write:
It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.
I do not see the opinion as the strong rebuke to the US's detainment of enemy combatants that you appear to.
I do not see the opinion as the strong rebuke to the US's detainment of enemy combatants that you appear to.
If it's not a strong rebuke, do you think that's a good thing or a bad thing?
If it's not a strong rebuke, do you think that's a good thing or a bad thing?
The case was not about the right of the US government to detain enemy combatants. Indeed, it's scope is fairly narrow. I think that it will make it difficult, or perhaps even impossible, to try most terrorists as war criminals, because it sets procedural hurdles that probably cannot be met in most cases. However, because it mostly is about statutory interpretation, I suspect Congress could amend the law to deal with the court's objections. Ultimately, whether or not we try terrorists as war criminals is not particularly important to me.
As far as the opinion goes, I think, as is often the case, Justice Thomas's position is much more defensible that Justice Stevens's position. On the other hand, I do not think Justice Stevens's position is ridiculous, I just think he is wrong on a number of things.
Justice Thomas's position is much more defensible that Justice Stevens's position
Um, with all due respect, WTF?
By "defensible" do you mean "monarchist"?
41: There are two sets of issues with "enemy combatants", as I understand the situation: (i) their detention and conditions of detention, and (ii) the procedural (and substantive?) rules under which they can be tried and punished (as opposed to merely held for the duration). Hamdan deals with the second set of issues, not the first. The holding that detainees are protected by Common Article 3 of the Geneva Conventions has major implications for the first set of issues, but as a matter of implication, not because that was what was before the Court.
The blogospheric wisdom, as I gather it, is that while Congress certianly could authorize most of the practices the courts struck down today, it's not clear that they could authorize charging an enemy combatant with the bare crime of conspiracy.
I agree with this analysis, based on what I've read and skimmed of the decision so far.
As far as the opinion goes, I think, as is often the case, Justice Thomas's position is much more defensible that Justice Stevens's position. On the other hand, I do not think Justice Stevens's position is ridiculous, I just think he is wrong on a number of things.
Please elaborate.
Yeah, 49 is a better way of saying what I spluttered in 44.
Please elaborate.
Kind of swamped with work--and MORE IMPORTANT, THE TEAM NEWYORKISTAN FUNDRAISER, so I can't respond now. If the thread is still alive tomorrow evening or Saturday, I will try to.
Oh, right. Anyone in the NY area should click through that link, and show up at Verlaine, on Rivington Street, at 7. I'll be there, and you'll be raising money for Team NewYorkistan!
Verlaine is located at 110 Rivington Street, between Ludlow and Essex - http://newyork.citysearch.com/profile/11652224/new_york_ny/verlaine.html
also, Idealist, with all due respect, I think you failed to answer M/itch's 42, except to say that it isn't very important to you. so when you come back, would you mind answering that question?
text, you know the answer isn't going to make you happy.
51: fair enough. I'm pretty swamped too and already feeling guilty about spending too much time looking at Hamdan stuff this morning, but I really do think it's important (albeit perhaps not to my clients).
re 54:
I do not have much more to say than what I said. I think the holding is actually fairly narrow. Even though I disagree with it, it did no particular harm to the Constitution or the rule of law. It just was not well reasoned IMHO. I do not think it will hurt the war effort in any important way. So I do not view it as particularly bad or good. I recognize its symbolic importance to opponents of the war, but I do not think it will have the legal or rehtorical force many might hope it will have.
41, 45:AFAIK, Hamdan's status has yet to be determined. If determined a Pow, he could certainly be detained for the duration, with full protections of Article 2. If a civilian, etc. But calling him an "illegal enemy combatant" or whatever does not make him one, and I believe the forum and procedures in which that determination will be made is the subject of this decision. If it is determined that Hamdan is and was a POW, he has not been treated as one = war crime. Ditto with civilian. Possibly his treatment is acceptable under some weirdy third category, but it is the common perception that the administration would not or could not prove it under any decent set of procedures. I do not believe they can escape Article 3 liability.
I recognize its symbolic importance to opponents of the war
Not a legal point, but it's of course possible to support any of the Global Struggle Against Violent Extremism, the war in Afghanistan, and the war in Iraq, or any combination of the three, and still be worried about and opposed to the particular procedures promulgated for the military tribunals at Guantanamo, to believe that they were promulgated without the necessary authority, and to be happy that the Supreme Court struck them down.
I extend this quite far. The usual rare use of "illegal combatant" was for spies and saboteurs. There is no understanding I know of, that says Khalid Sheikh Muhammed (KSM), picked up at a house in Pakistan. is neither a POW or civilian criminal, but actually a spy or saboteur.
Where is KSM?
"If it's not a strong rebuke, do you think that's a good thing or a bad thing?"
That was the question. Your answer seems to be: the opinion will have little force, but you think it's poorly reasoned, and therefore, you don't support it.
But that answer doesn't answer the question, which wasn't about the opinion itself, whether it will have much force, or whether it was poorly reasoned.
I also consider this a very small subset of an encyclopedia of war crimes by this administration, from initiating the war without UN authorization to not controlling the militias in Iraq as part of their responsibility as an occupying power. "Militias" is the specific word used in the Hague conventions.
I want them to hang. I think it is necessary.
Is this what one means by hard fascism? "the Court has abandoned traditional notions of deference when it comes to second-guessing the conduct of foreign and military affairs by the President and (to a lesser extent) by Congress"? Where deference means granting the power to lock people up forever without judicial review?
Also, I think 59 should be said more forcefully. If you think opponents of unrestricted executive powers, and of the sham tribunals carried out in US prison camps, are a fortiori opponents of the war against Al Qaeda, or even in Iraq...
...actually, maybe it shouldn't be said more forcefully.
I recognize its symbolic importance to opponents of the war
Speaking for myself, it's not about the war but about the future of constitutional government in this country. We have a history of going moderately to seriously batshit when we feel threatened and getting over it later, but there's always a danger that we'll go too far and not get over it. The Bush Administration's approach to presidential power is genuinely scary. We'll have to wait and see how much does or doesn't follow from this decision, but at the very least it's a shove back from the abyss, and that's worth something.
63: Glad I'm not the only one who read that and thought "Eurasia has always been at war with Eastasia."
This is not me, but I agree with it. With 65 too.
I recognize its symbolic importance to opponents of the war
I'm hoping this was just sloppiness or something and not indicative of your actual views, Idealist. If it is so indicative, I'd appreciate hearing how you get from one to the other.
McManus hits on the point that makes Hamdan a way bigger deal than Rasul was. The Geneva conventions do not apply to Salim Hamdan only because he's sitting in a cage on a Navy base "leased" from Cuba. They apply based on the nature of the war.
I see no reason why they don't then also apply to KSM. Where is KSM? If the GC apply, isn't it time for the Red Cross to visit him?
One's mind also wants to wander off toward idle speculation about whether war crimes count as high crimes and misdemeanors under the impeachment clause, up until the part where you realize that stacking the bench with people scarier than you are may be a pretty good strategy for remaining in office.
"If we are war-gaming Iran, that may be a crime."
That seems extremely improbable to me.
a) "War-games" = "intent to attack" by any measure I'm familiar with by any nation or international body or law or treaty. If it were a war crime to conduct a war game, or draw up theoretical plans, most national governments on planet Earth would be guilty of war crimes, including that of Switzerland. (I say "most," but it would probably be "all.")
b) War-games by the U.S. are always done as exercises against fictionally named countries, anyway, just for the sake of politesse.
I think this suggestion is a bridge too far, Bob. However, kindly don't hate me for disagreeing, if you please.
"Verlaine is located at 110 Rivington Street, between Ludlow and Essex"
Focussing on the important, I spent about a year living at 87 Clinton St., in the mid-Nineties.
"Where is KSM?"
Quite possibly on a ship at sea. But maybe not.
70:"Quite possibly on a ship at sea. But maybe not."
I did hear a story that KSM was at a Central European location, and that his very appearance frightened a more recent detainee into talking. I also heard that the Central E location was shut somewhere around the time of a Condi visit, and moved to North Africa. Consider these rumours.
...
Gary, without cite, I am fairly certain that the Hague language is as I stated:"planning an aggressive or illegal war". I am also certain that it would be open to interpretation and selective enforcement. Some Nazi official, involved in war-gaming "Polistan" in the winter of 1938, captured (or something;would Greece be a better example?) very early in 1939 before he ordered or was involved in the action, might be treated differently than a Swiss in a war college. Of course, if the Iraq war were found illegal, planning or gaming a war against Iranistan would likely be treated somewhere between said Nazi & Swiss. War crimes are a complicated matter.
I find 68 confusingly phrased, so:
The Geneva conventions do not apply to Salim Hamdan only because he's sitting in a cage on a Navy base "leased" from Cuba. They apply based on the nature of the war.
s/b
"The Geneva conventions apply to Salim Hamdan–not just because he's sitting in a cage on a Navy base "leased" from Cuba–but because of the nature of the war."
Be it noted that Charley has lots and lots to protect our freedom and that I am grateful for it.
I say "most," but it would probably be "all."
Don't some lack militaries? Costa Rica at least used to. That said, I doubt that war-gaming Iran counts as a war crime (though it may be closer to planning a war than most other war games).
I recognize its symbolic importance to opponents of the war
I realized that no one had explained why they were offended by this. A bunch of us highlighted it, noted reasons to doubt it, and asked what was up with your saying it, but I don't see anyone noting what they don't like about it.
So here's a couple of reasons: it looks like its positing the causal relationship X opposes the treatment of prisoners at Guantanamo only because X opposes the war (there's also a big problem with the lack of modifier on the "war" that I'll get to in a second). That would be a shallow reason for caring, while many people, myself included, believe that we care about what happens in Guantanamo due to pretty core moral values.
If "the war" means Iraq, it would be pretty stupid to oppose particular practices at Guantanamo because you oppose the Iraq war, since none of the prisoners, as far as we have any reason to believe were captured in Iraq or in relation to the war in Iraq.
If "the war" means Afghanistan, the statement is nonsense. Many people supported the war in Afghanistan* and are nevertheless vehement opponents of the treatment of prisoners at Guantanamo (this is true, though I think to a lesser extent of supporters of Iraq at the time it began).
If "the war" means the Global Struggle against Violent Extremism, opposing it is a matter of opposing its methods (like invading Iraq, the key front of the war on terror!) and rhetoric (thinking of it as a war), not the concept.
It also suggests that in this war we should be guided more by what we're fighting against than by what we believe we are fighting for.
Yes, given the use of 'war' to mean the G-SAVE, this is close to a casual inference from "You oppose Bush's specific tactics" to "You don't want to defend America from its enemies." Which has been the GOP's electoral strategy since 9/11, and which is incredibly offensive to those who oppose Bush's tactics because they're morally wrong, and incidentally not effective at protecting America from its enemies.