Details on SCOTUSBlog (where else), as they become available. Justice Kennedy wrote the majority opinion. The opinions are here.
UPDATE: The Chief Justice and Justice Scalia wrote dissenting opinions (each joined by the usual suspects). Justice Souter wrote a concurrence joined by Ginsburg and Breyer.
FURTHER UPDATE: Lyle Denniston is giving insta-analysis of the opinions here. While it was generally anticipated that the government would lose the case, he calls the decision a "stunning blow to the Bush Administration in its war-on-terrorism policies."
LAST UPDATE: As I (super-quickly) skim Justice Kennedy's opinion for the Court, it appears to hold that Guantanamo detainees have habeas rights, that these rights can only be denied through a valid suspension of habeas rights (under the Suspension Clause of the Constitution), that the procedures created by the Detainee Treatment Act were not an adequate substitute for habeas, and therefore Section 7 of the Military Commission Act is an unconstitutional suspension of the detainees' habeas rights. I'm sure I (and others) will have more to say about this case in subsequent posts.
You give habeas rights to prisoners and soon everyone's going to want them.
So is it that conservatives don't see the need to grandstand when it comes to their dissents, or is that liberals just are more passionate about certain issues and thus feel the need to make their views known? I vote for both.
Which would be a great argument except that, based on a quick google search, its belied by the facts. Scalia has read a dissent from the bench at least twice in recent memory (Roper and Hamdan) and Thomas once (Hamdan).
Right, though it seems to me the original sin here is not so much granting habeas or due-process rights to enemy soldiers, but the creation of the category of "enemy combatant" in the first place, in order to avoid the demands of the both the Geneva Conventions and civil law.
complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no effect
there, at least as to noncitizens, because the United States disclaimed
formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply.
The mind reels... how can Congress and the President have the power to acquire, dispose and govern territory, yet not to say when territory falls under U.S. Sovereignty?
So under your view only the Supreme Court has the power to interpret the Constitution? So if the Supreme Court interprets the Constitution to say that we now must bow before the 9 kings in robes, Congress and the President should just go along?
The President is the head of the executive branch of government. It is up to the executive branch to enforce, not the Judicial. So if the President believes that the judicial branch has legislated an unconstitutional edict, he is under no obligation to enforce such edict.
Remember Andrew Jackson?
Oh, such a zinger! Except that my point wasn't that conservatives never read dissents from the bench (although your point about Thomas reading his Hamdan isn't that helpful to your argument, considering it was the only time he's ever done that). Just that, in comparing this Term to last Term, there have been no dissents read by "conservatives," and a non-significant number read by "liberals." Just last Term, dissents were read in Carhart, Ledbetter, Parents Involved (the school desegretation cases), McConnell v. FEC, and Leegin. I may have missed some, but that's already a noteworthy number (to say nothing of covering three Justices--Souter, Ginsburg, and Breyer).
Whereas here is a case that, clearly, the conservatives cared very much about, and yet nary a peep from the bench concerning their dissents (according to news reports).
The administration instead called the terrorists illegal enemy combatants, creating a new category outside of civil law and the Conventions - and divorced from the original category of enemy combatant.
That's the issue here and why they got to make up the rules as was convenient at the time. "normal" enemy combatants still have rights afforded to them under the Conventions that were not afforded to the Gitmo captives...
I haven't read the dissent yet, but I hope that's not the best Scalia can do. Surely he's smart enough to know that "democratic process" doesn't mean "blank check for unconstitutional acts."
The question isn't whether the territory is part of the US but whether the government can run away and hide from the Constitution.
Are you serious or a troll. The "canvassing of foreign law" is a brief history of the writ - explaining what it is in Anglo-American jurisprudence.
Does the holding rely on foreign law? No, it does not.
The question isn't whether the territory is part of the US but whether the government can run away and hide from the Constitution.
Dude, that's just a rhetorical recasting of the question. Whether the government can "hide" from the Constitution of course hinges on the question of sovereignty and territorial jurisdiction. Under Verdugo-Urquidez, the government effectively "hid" from the Fourth Amendment abroad. You're not saying anything substantive.
Remember what he fought the Supreme Court over? Probably not the most felicitous comparison.
The fact that the US Constitution does not apply to non-citizens outside of the US is relatively undisputed.
The only way to get around that and grant them rights under said Constitution is to basically say that Congress and the Executive can't do... exactly what it says they're vested to do in that sentence.
Does SCOTUS plan to second-guess every negotiated border and base lease from here on out?
Why is it that 5-4 squeakers are always portrayed as a "stunning blow" or "stern rebuke" instead of the close vote decision they actually are? Yes, yes, when it comes to a win an inch is as good as a mile, but the hyperbolic descriptions when ANYTHING is decided against the BOOSHH administration is simply laughable.
That may be the case, but we are still bound by laws. Consider the former head of the Israeli Supreme Court, Aharon Barak, who stated in the opinion outlawing torture:
“Although a democracy must often fight with one hand behind its back, it nevertheless has the upper hand.”
For those of you who are in the know, why was this not an issue?
In advance, many thanks for thoughtful answers.
So 65 years later the court decides that those WW2 prisoners were unconstitutionally denied a habeas hearing.... Am I the only one who thinks this is insane? I feel like I'm in bizarro world.
I doubt the case is retroactive.
I haven't read the dissent yet, but I hope that's not the best Scalia can do. Surely he's smart enough to know that "democratic process" doesn't mean "blank check for unconstitutional acts."
Scalia is merely pointing out that in Hamdan, the Court basically invited Congress to do exactly what it did when passing the MCA. Then, they turn around and strike it down.
If the combatants have a constitutional habeas rights, what exactly was Breyer talking about in Hamdan?
Logic, however, always is.
"As a result, the alternative remedy provided by the DTA seems poorly designed to permit an adequate and effective hearing on any legal rights that the detainees may have.
Restoring statutory habeas right at Guantanamo Bay would resolve these legal uncertainties. If Congress does not restore habeas rights at Guantanamo Bay, there is a significant possibility that its removal of habeas jurisdiction over the detainee claims at Guantanamo Bay will be held to violate the Suspension Clause of the Constitution."
It's similar to how disagreement with a Supreme Court decision invariably translates to "Justices disregard the Constitution."
An answer to your question:
It's true that Congress has the power to limit the lower courts' jurisdiction, so the Supreme Court was in a bind as to whether to treat habeas as distinct from that. They decided to treat it as distinct in part because Marbury argues that the Supreme Court can't add to its original jurisdiction. If the Court let Congress deny the lower courts habeas jurisdiction (and no state court would have jurisdiction over GTMO), then no court would have original jurisdiction over habeas, thereby resulting in a de facto (unconstitutional) suspension.
Problem solved.
Or is just assumed that the administration's rules of court procedure would have guarunteed guilty verdicts with use of coerced testimony, hearsay, lack of confrontation, and other objectionable (in a civilian criminal court context) evidentiary issues and now they will get a chance to prove their "innocence" and some may then get released and be free to be a terrorists again? Is that the major objection?
That camp, and the way those men are being treated, is an disgrace and a stain on America.
At last the Supreme Court has seen sense.
Phew.
That camp, and the way those men are being treated, is an disgrace and a stain on America.
At last the Supreme Court has seen sense.
Phew.
Does the court establish a minimum standard of proof necessary to hold men taken prisoner on a field of battle? Do fourth and sixth amendment rights apply in full? Miranda?
The Supreme Court has been using British cases since it began when trying to determine the scope of various rights. Even an originalist will fully admit this fact, which is why Roberts, Scalia, and others have relied on Blackstone and British/English case law when determining the extent of Constitutional provisions rooted in the Angol-American tradition.
This was not controversial for over 200 years. Why it is now, is beond me.
Let's see, we can send Scalia and Alito to the Vatican obviously, Roberts to Zimbabwe, and Thomas to Saudi Arabia -- we owe the Saudis at least that much.
That is news to me that everyone at Gitmo was taken on the field of battle. I thought many of them were rounded up by various warlords and handed over for bounty.
I've read the opinion, but did I miss a discussion of your argument? I don't see a reasoned treatment of it at all. Where's this discussion about lower-court jurisdiction stripping being different for habeas in the opinion? Also, there was no discussion, I believe, of this issue in the dissents.
Any help would be greatly appreciated.
Mark
P.S. Unsurprisingly, this is a good example of the "they need to learn to read entire, unedited opinions" school of thought.
That's Al-Qeuda's fault, not ours.
Also, with regard to AEDPA and the Suspenion Clause (Felker, etc.), the Supreme Court has always left open the possibility of original habeas actions in SCOTUS. Has that now changed? If so, what decision reflects that change?
Mark
But using your own reasoning, since the Surpremes' opinion of what the Constitution says trumps eveyrone eles's, all they have to do is declare said impeachments unconstitutional. Game over.
This decision means terrorists get full rights...wait, that was already said by DangerMouse.
Congress can strip the courts of any power it wants, it's in Article I!...wait that was argued by MarkP.
Tyrants in Black Robes!...curse you M. Goss! I thoguht for sure that old chestnut wasn't out yet.
I've got nothing to add.
So far, I'm not sure whether I agree with Kennedy's cute distinction between de jure and de facto sovereignty - he claims that Gitmo is de facto U.S. sovereign territory, even if not de jure. Thus, habeas applies. If that's how he's going to explain away Eisentrager, I have to say it's not immediately persuasive. Will a factual determination have to be made in every instance about whether POW camps abroad are "de facto" a part of U.S. sovereign territory? What's the appropriate test?
Reading on . . .
The Court, as an institution, was protecting its own institutional interests. That's really what's going on here. They don't care about Americans or the war or even the terrorists (although surely Ginsberg and the other liberals on the Court wouldn't mind if the terrorists fought back hard enough, to dispel the power of the so-called evil American empire). The Court ultimately cares about the Court. If the public ever absorbed the idea that Courts weren't weigning in on policy, that would mean their Ivory Towers could come crashing down.
It's a small step to giving the Courts full management on Executive powers and the operation of foreign policy and the conduct of the war. They already have full legislative powers, since they veto laws and re-write the laws as they see fit.
In previous wars, we had summary hearings and summary firing squads for those caught violating the rules of civilized warfare. So I'm guessing that we now need a full trial before a federal judge back in the US for everyone our military takes into custody. I'd be interested in hearing otherwise.
It's a fairly simple question.
Wow!!!
Problem solved.
Some would say this solution should be concurrently applied to their prospective lawyers.
Also, and forgive me if this point was made earlier - Hasn't the US had complete control of EVERY prisoner of war camp EVER?
Why? Was Charles Beard a troll for writing an Economic Interpretation of the Constitution? I'm interpreting the decision through an institutional-power lens.
All of the "crits" have this problem. It constantly amazes me that they are blind to it.
That anyone could consider this court conservative is laughable. We have not yet reached a judicial dictatorship but we are certainly on the way.
It is not the Supreme's fault if the Congress could not come up with an "adequate and effective substitute for habeas corpus. The opinion leaves wide open the ability for Congress to do that.
Moreover, you stated: "We have been letting some of the prisoners go from time to time when we determined that they were not a threat. We tend to find these guys later dead after a shoot-out with our soldiers."
In reality, very few have been released (even though many have been found to have no ties to terrorism - see Uighers), and yes, there have been some who have committed acts of terrorism after they were released, but your statement implies that that number is quite high. So, should we just keep them all forever, because their detention can lead them to wanting to be a terrorist.
I've asked a serious legal question, which you clearly don't understand. Characterizing this question regarding the jurisdiction of the lower federal courts as "an outrageous exageration [sic] of the right wing" shows how ignorant you are.
My initial post was looking for "thoughtful answers." If you have nothing serious or thoughtful to add, please don't participate.
If you troll-out on us, this is my last post regarding you, so say what you want.
Where were detainees given full constitutional rights on par with citizens?
Please answer my question.
Political gamesmanship among some in the Executive Branch, combined with a lack of backbone in Congress (who wants to be labeled "soft on terror" or "friend of the enemy" by their oponent in the next election) in establishing the procedures declared inadquate by the majority, has led 5 justices to step in and say "stop".
This is a side-story, as you can tell. Attention to foreign authority is not new for the Supreme Court on any count; the point, or rather joke, was that other recent decisions attending to foreign cases was condemned for that fact. Yet, there is no getting around that decisions of UK (and the majority canvasses well past 1789) are foreign law. I suppose it it the horse.
Awesome, so the five-member majority (as well as the ACLU, Human Rights Watch, Amnesty International, most international law scholars, etc.) isn't espousing a view of the Constitution, but simply fighting against the United States government in the courtroom.
So, when are the treason arrests coming down?
That is all.
Um, yes. What's so hard to believe about that? In literal truth, those activists ARE fighting the United States, since the Government is on the opposing side (as I said earlier, the 5-member majority only cares about the Court). And they're representing the terrorists that we're fighting. But taking a broader view, yes, it's my opinion that all of them want to harm America and think that it would be great if the terrorists pushed back against what they view as an imperial United States. I think their actions clearly speak to that agenda. Go ahead and try to convince me that I'm wrong.
Then, they'll appeal and we'll be right back where we started.
I thought Roberts made a great point about how all this does is add an unnecessary step that only adds a year or more to the process. These cases will end up at the DC Circuit one way or the other so why bother wasting time at the the distrcit court to begin with?
In the end, though, this case is largely irrelevant. None of these trials will end by the time the new President is sworn in and both McCain and Obama have said they'll close gitmo and bring the prisoners to the US, which will clearly give them habeas rights. Basically, through various blunders, Bush has ran out the clock and wasted too much time to be able to do anything about these detainees. It'll be up to the next President and both candidates have already said they're 180 degrees from him on the issue.
it's hard to define a "field of battle" when you are facing an enemy that does not wear uniforms, hides in civilian populations, even in mosques and schools and behind women and children/civilians.
remember these are the same nimrods that blew up frigging red cross facilities on purpose.
This is the dumbest fucking shit Ive heard in a long time.
I'm an attorney but not particularly knowledgeable about habeus proceedings. Could it be that the extra step of Habeus proceedings in the District Court will create a more complete record for review by the DC Circuit, thereby reducing the risk of the need to remand from the Circuit Court of Appeals to deal with factual inadequacies in the record? My gut tells me that the record developed in the proceedings which the SCOTUS majority declared inadequate may be far less complete than the record developed in district court habeus proceedings. Perhaps those more experienced in such matters can chime in on this topic.
The views you labeled the "dumbest -- -- you have heard in a long time" represents a significant challenge to the form of government of the United States as we know it. When people who hold those kind of views get into power, they are incapable of distinguishing between the real enemies of the United States and those people who support the United States but disagree with them about how best to protect the long term interests of the USA. They dare you to prove them wrong, but nothing, absolutely nothing, you show them will ever change their mind. Which is why it is prudent
The Supreme Court has outlawed the whole notion of a Prisoner of War and a Lawful Combatant. Apparently, US laws extend everywhere to everyone. Apparently, everyone is a citizen of the US.
Among all people in US society, judges most lack practical wisdom. Let's scorn them, and ignore their rulings.
I agree. Perhaps other political actions can be taken against the court. Can we depose judges? Pack the court and reverse this absurd decision? Forcefully retire the old, senile, liberal judges? What?
I think it's time to take off the gloves and use whatever legal and political force we can muster. We must make the court a subject of the Constitution, not a lord over it.
If you're referring to the left-wing's characterization of BushHitler and other extremes of the left, then I agree with you. Those people are derranged and their Bush Hatrid has made them perceive people like Cheney to be more of an enemy than Bin Laden. As for me, I personally don't attribute evil motives to the politicians of the Democratic party, I just think they're wrong and deluded. They do have their evil ideological allies, however - mainly the same people who think that Cheney is worse than Bin Laden.
Prisioners of War cannot be interrogated. At all. Name, rank, and serial number are all that can be asked.
Have you even read the Geneva Conventions? It doesn't show.
In order to promote adherence to the the standards of lawful warfare, a distinction is made between a lawful combatant and everyone else. This distinction is not made up. Historically, unlawful combatants were executed on the battlefield. The Geneva Conventions require only agreement of at least three officers to execute anyone operating out of uniform on a battlefield.
The "intermediate status" was intentionally created by the Power that signed the Geneva Conventions and the Congress and President who signed a laws governing military tribunals. The Court has overturned the will of the people. The Court is an oligarchic tyrant.
However, this comment thread makes me fear for the future. To those of you arguing for summary executions of Gitmo Detainees, do me a favor and do not, under any circumstances, breed.
Troops have full rights to follow lawful orders and engage in self defense and defense of others. Once they have captives, the law of war applies for the POW's. Those we call unlawful enemy combatants (criminals) get treated as we treat criminals in the US.
Only parochial lawyers who forget about the Kantian imperative (golden rule) would quibble much if the criminal came from a US mother or some other birth. If one took a PwC or Bain consultant's approach, and considered the Bill of Rights and US Constitution a reliable charter, why not apply it in Afghanistan or Iraq for those rounded up as stateless criminals?
Assuming this is impractical or will lead to extra loss of US lives (more than the alternative approach - which is to generate hatred of the US by indefinite detention without trial) is small minded of Scalia. Scalia's claim to have a crystal ball about future deaths based on rejection of the Bush approach is about as persuasive as the Dred Scott case's definition of blacks as chattels that could never be citizens of the US.
I think Scalia has done a very good job over the course of the lsat 4 years in explaining the rational application of the Suspension Clause and the contours of the writ of habeas corpus. You may recall that in the first of these cases, Scalia's opinion (joined by Stevens) was the most 100% uncompromising opinion in protecting the writ, as there was no question in his mind that it applied to that prisoner. (It was the wishy-washy O'Connor who, as usual, came up with some compromise procedure concocted ex nihilo that had no basis in law before it flowed from her pen.)
The difference between that case and later cases has been adequately explained by Scalia. In the next round of cases, Congress had acted to strip federal courts of habeas jurisdiction in certain well-defined circumstances. Scalia correctly pointed out that the Suspension Clause says nothing whatsoever about the scope of the writ, only its suspension. Indeed, the Clause does not create a substantive right to habeas review -- habeas in this country is purely a creature of statute, as the first Congress knew very well when they passed a federal law granting the writ. Therefore the gov't should be able to craft the boundaries of the writ to apply in some cases and not in others.
One thing i do know for a fact, we've just given our soldiers a massive incentive not to take prisoners.
Yes it is. You can't see the distinction between warfare and law enforcement. That's stupid.
c.f.w wrote, Troops have full rights to follow lawful orders and engage in self defense and defense of others. Once they have captives, the law of war applies for the POW's. Those we call unlawful enemy combatants (criminals) get treated as we treat criminals in the US.
This is nowhere specified in US law and it violate the Geneva Conventions which clearly specify that all combatant be treated the Military justice system of the holding Power, not the civilian system. You propose to give unlawful combatant more rights than POW's which are denied access to US courts. That's dumb.
c.f.w wrote, Scalia's claim to have a crystal ball about future deaths based on rejection of the Bush approach is about as persuasive as the Dred Scott case's definition of blacks as chattels that could never be citizens of the US.
How dumb are you, exactly? Scalia argues from the practice of warfare since the Treaty of Westphalia. You're just making shit up.
Nothing. Undoubtedly, the libertarians and liberals intend this effect to hamstring US military power, provide a new administrative weapon to our enemies, and inhibit future combat operations of US forces.
They want the enemy to win.
Prisioners of War cannot be interrogated. At all. Name, rank, and serial number are all that can be asked.
Wrong.
Alcyoneus:
In order to promote adherence to the the standards of lawful warfare, a distinction is made between a lawful combatant and everyone else. This distinction is not made up. Historically, unlawful combatants were executed on the battlefield.
You are also wrong, the GC defines "enemy combatants." It is the Bush administration who invented the definition of "illegal enemy combatants" that the court struck down today.
Because it is impossible to win a war under such a system?
Assume the Bill of Rights (including established civilian precedent) is operative in a battlefield. Is every enemy soldier to be treated as innocent until proven guilty? Can surprise attacks occur or do soldiers have to first announce their presence? Do warrants have to be issued to detain an enemy soldier? Can we intercept enemy communications without a warrant? Would jamming their communications violate their 1st amendment rights? If every detainee granted an attorney? And just what laws does the US have the right to enforce in a foreign country, anyways?
If your argument is that this particular enemy can be dealt with using the criminal justice system, that's a different argument (although recall that that approach was tried but widely rejected after 9/11). But to state that war should be conducted in accordance with the Bill of Rights is simply foolish.
Also note that there's a flip side to this argument, and that's to interpret the Bill of Rights in such a way that makes war winnable. Congratulations, our civil liberties are no greater than that of a wartime enemy. We become literally at war with our government.
There's lots of good reasons to treat war time enemies differently than citizens. This is not justification to deny enemies all rights, but those rights are granted at our discretion by the Congress, using its power "To define and punish Piracies and Felonies committed on the high Seas", and Offenses against the Law of Nations", and to "make Rules concerning Captures on Land and Water". Enemy rights are not guaranteed by our Constitution. Well, at least they didn't used to be...
Baloney. I sincerely hope you're trolling, but if not, please take a moment and go have a beer (or Chardonnay, if you think you'll have to stoop so) with an actual mid-left Democrat. Demonizing the other side isn't productive.
For the same reason a smaller margin of victory was portrayed as a "mandate" in recent elections?
All Cowardice, All The Time.
Tips guys: When it comes to fighting, smart people don't listen to the advice of pussies like you.
Eisentrager couldn't be clearer. It ought to be controlling. Yet Kennedy contrives, via "practical" and elaborate factual distinctions, to evade its conclusions. No wonder the usually even-tempered Roberts was miffed enough to decry Kennedy's brazen "activist" decision.
My initial impressions were: this is 'creative' lawyering, elaborately contrived reinterpretations of Eisentrager in light of its "tension" with the Insular Cases, and it is, at points, improbable.
The dissents have adequately served to confirm my initial assessment. This is subpar from Justice Kennedy. Very subpar.
Of course that doesnt make it just. Constitutional protections have expanded enormously since the document was signed.
But i do think you can make a legitimate argument that this particular extension is radical and well out of line with the founders intent.
All Cowardice, All The Time.
Tips guys: When it comes to fighting, smart people don't listen to the advice of pussies like you.
Heh. Smart people don't substitute namecalling for argument.
Does this also bother you with regard to, say, the equal protection clause? The government has no obligation to provide special job training programs, but if it chooses to do so it cannot make them available only to white people. Similarly, the government has no obligation to provide prisoners with a right to petition for habeas, but if it chooses to do so it cannot then suspend the operation of that procedure except under certain conditions.
Furthermore, if some procedure never applied to a class of people in the first place, continuing to not apply it to them can hardly be described as a "suspension" of that procedure. Even had this class of people once had some such protection, your view of "suspension" would lead to the conclusion that the writ is forever etched in stone (or at least that it could expand but never contract.) That just isn't the history of the writ, and it's plain wrong.
The historical basis for the Suspension Clause was the practice of the British authorities to routinely suspend the availability of the habeas writ. The Brits were perfectly free to alter the scope of the writ through legal process. The writ's boundaries were not eternal and unchanging. It was codified in the 17th century, and subsequently amended. To the extent it existed prior to codification, the writ issued from the king at his prerogative.
So the writ, at the time of our Founding, was indeed a pure creature of statute, unless you want to strip it down to its ancient roots where it was purely a discretionary tool of the head of state (which I suspect you'd dislike.) At the least, we can conclude there was no substantive right of a prisoner to petition on his own behalf for habeas corpus until it was recognized formally by the First Congress.
How would the Afghani warlords get their payouts?
Wait, are you calling for the assassination of JAG officers?
What you call "ludicrous formalism" is pervasive throughout our law. For yet another example, the Bill of Rights forbids the quartering of soldiers during peacetime, and during wartime except as prescribed by law. This does not require the federal gov't to pass a law laying forth a legal procedure for the quartering of soldiers. It merely means that if the gov't wishes to quarter soldiers it must do so in the manner authorized by Congress and can only do so in wartime.
Another even better example: The Bill of Rights requires a Grand Jury indictment for capital crimes. Is Congress required to pass a law establishing the existence of capital crimes? Certainly not. Does the Bill of Rights create a common law of capital crimes by virtue of having set forth this limitation upon them? Again, certainly not. There is no common law of crimes in this country, all crimes are statutory (just as the writ of habeas corpus is). That amendment merely stands for the proposition that if the Congress chooses to establish a law of capital crimes, it must provide certain safeguards.
Congress is the master of the writ, and they've acted repeatedly over the last few years in that capacity, the Court just repeatedly refuses to acknowledge it.
Pffft. Try again dumb ass. You're just another person who's not even read the conventions and the relevent commentary.
The term 'unlawful combatant' has been used at least since the beginning of the last century in legal literature, military manuals and case law. You're simply ignorant of the basic facts in dispute.
The locus of the dispute is over POW status not over enemy combatant status. Unlawful combatants are persons who take a direct part in hostilities without being entitled to, and who therefore cannot be classified as prisoners of war after falling into the power of the enemy. Learn it, love it, live it.
Learn something before you spout bullshit. Or stay ignorant by blaming Bush for everything. What a crock. Is this the best you "intelligentsia" have to offer? This just confirms my view that lawyers are frakin' rubes.
You are a coward who is motivated by fear. Attempting to rationally "argue" with you would be a waste of my time.
The situation changes where there is no state that has sponsored the violence (or attempts at violence), as with Al Q. Then the habeas procedures make sense.
Congress needs to come up with something like SVP confinement (sexually violent predator), which is what we have in CA, only call it TVP (terrorist/violent predator).
Get the common law adversarial process working, with proof beyond a reasonable doubt based on admissible evidence.
When and if that process proves unworkable, Congress can vote to suspend the writ.
Why must there only be two categories of detainee? It seems pretty clear to me that PoWs have less rights than ordinary domestic (potential) criminals, and that unlawful combatants have less rights than PoWs. I thought, in fact, that was pretty much the point of the conventions (Geneva, Hague, etc.) - that by following the rules, soldiers earn themselves the rights that are granted to PoWs. There must be consequences for not following the rules, otherwise why would anyone bother?
Seems you got plenty of time to call people names, but don't have enough time to think of a rational response. Odd that others are perfectly capable of doing this while you cannot. I don't think people are convinced by your third grade tactics. What next? Are you going to call me a doodyhead?
Presumably, then, detainees at Guantanamo could appeal to Cuban courts for relief? And the notion that the Rights which the Constitution recognizes for citizens are only granted to noncitizens utterly contradicts the idea of Natural Rights.
When you lift text almost perfectly verbatim from a source like wikipedia it's traditional to give credit. It's also a good idea to avoid gratuitous changes that exaggerate the original claim.
And in this case, it would be a good idea to include the key idea mentioned in the next sentence: GC does not use the term "unlawful combatant." Here's another key idea: GC grants certain rights to all detainees, including detainees who were fighting without a uniform.
You're just another person who's not even read the conventions and the relevent commentary.
I sure have. There may be a problem between our interpretations in that I don't consider Bill O'Reilly to be "relevant commentary," but that might just be me.
Unlawful combatants are persons who take a direct part in hostilities without being entitled to, and who therefore cannot be classified as prisoners of war after falling into the power of the enemy.
You're still wrong. This is the fiction that has been promulgated, but the difference is between treatment via GC3 and GC4, which have both been heretofore denied to GTMO prisoners. Why could that be?
No, that just makes our troops into war criminals. Seems like that would be a greater problem than that which it is designed to solve. This would turn our troops from lawful combatants into cold blooded murderers.
What, as some have asked here and elsewhere, does this decision require of frontline troops?
They are allowed to "defend" themselves. That's nice. Big concession.
How about actually conducting warfare?