Judge declares military tribunals in Guantanamo unconstitutional

[Willravel]

Judge declares military tribunals in Guantanamo unconstitutional

WASHINGTON (AFP) - A US federal judge ruled that military tribunals for international terror suspects at the Guantanamo Bay Naval base are unconstitutional, leaving in doubt the fate of hundreds of detainees at the US-run detention center in Cuba.

The administration of President George W. Bush, which created the tribunals, contested the ruling, noting that an earlier Federal Court ruling had supported US policy toward Guantanamo detainees.

"We respectfully disagree with the decision," said White House spokesman Scott McClellan.
After considering court appeals filed by 11 "enemy combatants" held at the facility, "the court concludes that the petitioners have stated valid claims under the Fifth Amendment to the United State Constitution," Judge Joyce Hens Green wrote in her ruling, adding that the detentions "violate the petitioners rights to due process of law."

The Fifth Amendment to the US Constitution states that no one under US jurisdiction can "be deprived of life, liberty, or property, without due process of law."
The court also found that some of the detainees, are in fact, covered by the Geneva Conventions.

"The court holds that at least some of the petitioners have stated valid claims under the third Geneva Convention," according to a declassified version of the federal ruling which was posted Monday on the court's website.
Green ruled that US officials withheld from detainees access to evidence used against them, and that the US government has tended to rely on statements obtained by torture. She also determined that the government's definition of "enemy combatant" was vague and overly broad.

Suspects captured in the US-led war on terrorism, most of whom were taken prisoner in Afghanistan after US-led forces toppled the Taliban regime, or Pakistan, are being held as illegal combatants without Geneva Convention protections.

Detainees at Guantanamo were taken into custody beginning in early 2002, with some imprisoned now for nearly three years, while others were captured as recently as September of last year.

"Although many of these individuals may never have been close to an actual battlefield and may never have raised conventional arms against the United States or its allies, the military nonetheless has deemed them detainable as 'enemy combatants' based on conclusions that they have ties to the Al-Qaeda terror network or other terrorist organizations," the court document said.

The US government has maintained that it is allowed to detain suspects it designates to be enemy combatants until the "war on terror" ends, which is to say indefinitely. If prosecuted and convicted, enemy combatants would receive fixed terms of incarceration.

In a statement after the ruling, attorneys for the detainees called Monday's court decision a "smashing defeat for the Bush administration" and "a momentous victory for the rule of law, for human rights, and for our democracy."

Speaking Monday afternoon at the White House, spokesman McClellan refused to accept Green's ruling as conclusive.

"There was another Federal Court that ruled the opposite of this latest ruling," said McClellan.

"The Department of Justice will be looking at what would be appropriate next steps we ought to take on that matter," he said.

Violations of the Constitution and the Geneva convention. That's serious. This will undoubtedly go to the supreme court for a final decision, seeins as how it contradicts a prior ruling. I sincerly hope that the judges put Guantanamo under a microscope and make sure that they are being treated as human beings. Judge Green is a hero of democracy, imo.

[Cadwiz]

While I belive there "may" be some legal footing on the Geneva Convention situation, these people are not entitled to Constitutional protection. Just because some judge says they are illegal, does not make it so.

[Willravel]

If they are under US jurisdiction, that are entitled to a lawyer and evidence of guilt. They are being heald at an official United States prison by U.S. troops and governmental officials. They are legally under US jurisdiction. Because they are under US jurisdiction, they are supposed to be guarenteed fundamental rights such as due process by law. This law is not being upheald, so the Judicial system must take a side on this and rule. I suggest rereading the article.

[Mojo_PeiPei]

Presidential powers as stated in the constitution disagree's with you and this judges ruling, he has the right to appoint tribunals. Also The rights you speak of Will are only afforded to citizens, techincally under the label of "illegal combatants" these guys forfeited that status.

[Cadwiz]

I agree that they should have representation and evidence of guilt, as per the Geneva Covention, as long as access to said evidence does not enable them to become more of a threat.

They are under military jurisdiction as enemy combatants, at a military installation/prison, and therfore not subject to rights afforded by the Constitution.

No amount of rereading is going to change that.

[Willravel]

Mojo, it's time to put this multithread argument to rest. Show me one case in which it is shown that citizens only are allowed due process under American jurisdiction. Until you show me this phantom ruling, I'll have to simply reply "no person shall be deprived of life, liberty or property without due process of law". n It does not say "no citizen", it is "no person". As I stated before, this applies to all people under American jurisdictio (this includes, but is not limited to, United States military jurisdiction). If you are referring to the Patriot Act, it is overruled by the Constitution.

[Mojo_PeiPei]

Bringing back up Ex Parte Quirin, when Nazi spies were detained and refused the rights of habeaus corpus and 5th amendment protection.

The Court holds:

(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied....

.....

The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation, the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

....

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void.

....

We are not here concerned with any question of the guilt or innocence of petitioners. Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.

Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to 'provide for the common defence'. As a means to that end the Constitution gives to Congress the power to 'provide for the common Defence', Art. I, 8, cl. 1; 'To raise and support Armies', 'To provide and maintain a Navy', Art. I, 8, cls. 12, 13; and 'To make Rules for the Government and Regulation of the land and naval Forces', Art. I, 8, cl. 14. Congress is given authority 'To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water', Art. I, 8, cl. 11; and 'To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations', Art. I, 8, cl. 10. And finally the Constitution authorizes Congress 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Art. I, 8, cl. 18.

The Constitution confers on the President the 'executive Power', Art II, 1, cl. 1, and imposes on him the duty to 'take Care that the Laws be faithfully executed'. Art. II, 3. It makes him the Commander in Chief of the Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1.

The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.
By the Articles of War, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission....
From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war his invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.

....

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States.... The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

....

But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court...In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.

http://www.law.umkc.edu/faculty/proj...aw/quirin.html

[Willravel]

I knew I should have gotten a law degree. F**k. I concede on the legality of due process to rebels and other peopels involved in attacking the U.S. in lands we are currently at war with. Does it still apply when we capture people now that we haven't been at war for quite some time?

If you want me, I'll be figuring out what I can do to make this illegal (as legality should rest on morality, and it is immoral to hold anyone without trial whether they are one of your countymen or not).

At least I have the Geneva convention to fall back on. I'll have to go do some in depth reading on that before I start debating the Geneva conventions applicable laws in this situation. Does a federal judge have the right to enforce the Geneva convention?

[fckm]

By the Articles of War, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial.

I think this section is pretty key. The idea is that Congress gives the President the authority to conduct trials by tribual. In our case however, I'm not sure if this is the case. I'm not a lawyer.

[martinguerre]

i'd give quirin more weight...save that the SCOTUS has been rather pissy about Guantanamo in the last few decisions...and the White House has been playing chicken and not following their reccomendations. Frankly, though i have serious disagreements with Rhenquist...i find it very hard to beleive a court under his leadership would affirm non-judicial hearings based on presidential perogative. call 'em what you will, but judges are jealous little bastards, and they won't take well to having their power over criminal proceedings get gutted like that.

[Mojo_PeiPei]

Originally Posted by fckm

I think this section is pretty key. The idea is that Congress gives the President the authority to conduct trials by tribual. In our case however, I'm not sure if this is the case. I'm not a lawyer.

What do you mean? Are you asking if they have given Bush the authority? Because I don't think it matters if this current congress did it, congress way back when ratified it to our articles of war, so Bush has the authority to do it.