the supreme court smackdown on military tribunals

From the New York Times:

The Supreme Court today delivered a sweeping rebuke to the Bush administration, ruling that the military tribunals it created to try terror suspects violate both American military law and the Geneva Conventions…

From the SCOTUS Blog:

The Supreme Court ruled on Thursday that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year’s Detainee Treatment Act. The vote against the commissions and on the Court’s jurisdiction was 5-3, with the Chief Justice not taking part…

You can find a PDF of the Supreme Court decision here, if you’d like to read it yourself.

Most of it’s lost on me, but, judging from what I’m reading, the critical thing seems to be that the Court has upheld that Common Article III of the Geneva Convention, despite what the administration has claimed, applies to our current conflict with Al Qaeda.

Here’s a clip from Article III:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The decision was 5-3, with Roberts having recused himself, having already decided on the case while serving on a lower court. (He decided in favor of the President at that time.) Unsurprisingly, the three Justices to side with the administration were Alito, Scalia and Thomas.

So, the question now is, “How will the President respond?” If he continues, one would think there would certainly be grounds for impeachment, but perhaps Rove and Cheney have a plan.

The response from the Right has been swift and predictable. Senator Trent Lott came out and announced that this decision would have our enemies laughing at us. Justice Clarence Thomas, in his dissenting opinion, claimed that Justice Stevens’ vote illustrated an “unfamiliarity with the realities of war.” Of course, Thomas has never served in the armed service, whereas Stevens served in the Navy for three years during WWII, but that, I suppose, is neither here nor there. And, Tony Snow, the Whitehouse spokesperson, flat-out lied and said that it had never been the goal of this administration to increase Executive power.

On that note, I’d like to put in a plug for the ACLU, which is making copies of the DVD “Stop the Abuse of Power,” freely available to anyone willing to host a viewing of it at their house. I haven’t seen it yet, but supposedly it makes the Constitutional case against the Bush administration in pretty clear terms – focusing on the torture of prisoners, the denial of due process, and the warrantless wiretapping of American citizens. Ordering a copy might be a good way to celebrate today’s decision, and keep the conversation going.

(It should be pointed out that everything didn’t go well at the Supreme Court today. In addition to coming down against the administration in this case, the Justices also found the extreme gerrymandering done by Texas Republicans to be legal.)

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  1. Tony Buttons Esq.
    Posted June 30, 2006 at 1:30 pm | Permalink

    I just checked and there don’t seem to be any mobs gathering outside the Whitehouse.

    I guess no one cares.

  2. Ted Glass
    Posted June 30, 2006 at 2:32 pm | Permalink

    Also a good article in today’s Washington Post:

    For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

    Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush’s military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate.

  3. Teddy Glass Esq.
    Posted July 5, 2006 at 2:44 pm | Permalink

    I’ve been in a coma for the past five days. Can somone let me know if we’ve had a coup?

  4. ytown
    Posted November 18, 2010 at 1:01 pm | Permalink

    Should we still try terror suspects in civilian courts based on what just happened in New York?

  5. Stephen
    Posted November 18, 2010 at 2:43 pm | Permalink

    And what exactly happened in New York? Are you suggesting that they should have been found guilty regardless of the evidence against them?

  6. ytown
    Posted November 18, 2010 at 3:32 pm | Permalink

    Stephen, Do you honestly think he was innocent? He was convicted of one count of conspiracy to damage or destroy U.S. property but cleared of 276 counts of murder and attempted murder. How can he be guilty of destroying U.S. property in which 276 people died, yet not guilty of causing heir murdres? Do you even know the facts? This was an idiotic decision! You are an idiot too if you think he was innocent.

  7. Stephen
    Posted November 18, 2010 at 4:27 pm | Permalink

    I do know a bit about the case, and what it proves to me is that we shouldn’t engage in torture any longer. That is, after all, why quite a bit of the evidence was set aside.

    Ahmed Khalfan Ghailani was tried in federal court on charges of conspiracy and murder in Al Qaeda’s deadly 1998 bombings of American embassies in Tanzania and Kenya. In November 2010, he was acquitted of all but one of the 280 counts against him.

    The bombings left 224 people dead and thousands wounded.

    Mr. Ghailani had been captured in 2004, held in secret prisons run by the Central Intelligence Agency and transferred in 2006 to the naval base at Guantánamo Bay, Cuba. He was the first former Guantánamo detainee to be tried in civilian courts under President Obama’s goal of seeking trials in federal court rather than before military tribunals whenever possible, and the verdict seemed likely to add fuel to the debate over that policy.

    He was convicted of one count of conspiracy to destroy government buildings and property. He was acquitted of four counts of conspiracy, including conspiring to kill Americans and to use weapons of mass destruction.

    Because of the unusual circumstances of Mr. Ghailani’s case, the prosecution faced significant legal hurdles even getting his case to trial. On the eve of the start of his trial in October, month, the government lost a key ruling that may have seriously damaged its chances of winning convictions. In the ruling, the judge, Lewis A. Kaplan of Federal District Court in Manhattan, barred prosecutors from using an important witness against Mr. Ghailani because the government had learned about the man through Mr. Ghailani’s interrogation while he was in C.I.A. custody, where his lawyers say he was tortured.

    In opening arguments, a prosecutor said that Mr. Ghailani participated in the attack “because he and his accomplices were committed to Al Qaeda’s overriding goal, killing Americans.” Mr. Ghailani helped to buy the truck used to bomb the embassy in Dar es Salaam, Tanzania, and also about 20 large gas tanks that were packed inside the truck to increase the force of the blast and kill more people, the prosecutor said.

    One of Mr. Ghailani’s lawyers told jurors that the defendant was innocent at the time of the attacks, an immature, trusting, naïve “creature of his surroundings” who enjoyed watching cartoons and had been duped by a group of men who turned out to be part of the East Africa terrorism cell.

    Read More…

    Although the government’s loss on significant counts will undoubtedly test the Obama administration’s resolve on using civilian courts, Judge Kaplan issued two major pretrial rulings that allowed Mr. Ghailani’s prosecution to go forward and could ease the way for future detainees, like Khalid Shaikh Mohammed, the professed 9/11 mastermind, to be tried in federal court.

    In May, the judge rejected a motion by Mr. Ghailani’s lawyers seeking dismissal of charges on grounds that his torture while in C.I.A. custody was outrageous government misconduct. And in the summer, the judge ruled that Mr. Ghailani’s years of detention before being brought into the civilian system had not violated his constitutional right to a speedy trial.

    Prosecutors say the witness whose testimony was barred, Hussein Abebe, sold Mr. Ghailani the TNT that was used to blow up the Embassy in Dar es Salaam. They say Mr. Abebe agreed voluntarily to testify against Mr. Ghailani, and that his decision to cooperate was only remotely linked with the interrogation. But the judge ruled that “the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.”

    Other rulings have gone the government’s way. In July 2010 the judge rejected Mr. Ghailani’s claim that he had been deprived of a speedy trial after spending nearly five years in detention.

    In 2009, Mr. Ghailani became the first detainee moved from Guantánamo into the civilian system, as President Obama declared his intention to try terrorism suspects in federal court whenever feasible. In a major address on national security in 2009, Mr. Obama referred directly to the Ghailani case, arguing that using federal courts to try suspected terrorists was a sensible and tested approach. He said the judicial process had successfully prosecuted Ramzi Yousef, who tried to blow up the World Trade Center in 1993, and Zaccarias Moussaoui, sometimes referred to as the “20th 9/11 hijacker.

    Although he is the first detainee to be tried, Mr. Ghailani is the second under the Obama administration to be shifted to the civilian court system. Ali Saleh Kahlah al-Marri, who was moved from a South Carolina brig to Illinois, pled guilty in April 2009. eliminating the need for a trial.

    In 2007, Mr. Ghailani, believed to be in his mid-30s, appeared before a military review panel at Guantánamo. He claimed ignorance about plans for the attacks on the embassies, and issued an apology. “It was without my knowledge what they were doing, but I helped them,” he said, according to a transcript. “I’m sorry for what happened to those families who lost, who lost their friends and their beloved ones.”

    Mr. Ghailani did acknowledge meeting Osama bin Laden, and also Khalid Shaikh Mohammed, the senior Al Qaeda planner held at Guantánamo. The suspect faces charges that include murder, attacking civilians, destruction of property and conspiracy, as well as providing material support to terrorism.

  8. ytown
    Posted November 18, 2010 at 8:26 pm | Permalink

    So this scumbag terrorist, convicted felon, says he was not guilty, what a shock!

  9. Michigan
    Posted November 19, 2010 at 11:19 am | Permalink

    Wow, and only eight years too late.

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