Techniguy - 07-01-2006
The Supreme Court delivered a blow to the Bush administration's anti-terror policies Thursday when it ruled that the president was out of line when he ordered military war-crimes trials for some Guantánamo Bay detainees.
Of course this is just how the Associated Press portrays it but it's hardly much of a blow.
Justice John Paul Stevens wrote the opinion, which said the proposed trials were illegal for 10 foreign terror suspects under U.S. law and Geneva conventions without congressional approval. Judge Stevens is entitled to his opinion, and that's really all this is. There is no precedent or previous laws, either in the US Code or the Constitution that deal with these prisoners being held at Club Gitmo. In fact, because this is not a constitutional issue, and the Supreme Court in becoming involved in this case is crossing the lines of separation of powers, they have no constitutional right in even giving an opinion on it.
Traditionally, prisoners captured on the battlefield are held in prison camps as "prisoners of war" and protected by the rules of the Geneva Convention. It is strictly a military matter under the authority of the Executive Branch of government. Were this a domestic civil case, then the Supreme Court would have jurisdiction. But in this case, jurisdiction is dictated by Presidential War Powers as described in the Constitution. Only the President, as Commander in Chief, has the power to exercise authority over military matters during wartime. It is not the President who has overstepped his authority, but rather the Supreme Court.
A huge question in this case, Hamdan v. Rumsfeld, et al, was whether the Geneva Conventions applied to prisoners held at Guantánamo Bay. The Bush administration argued that these detainees were not prisoners of war and therefore, not eligible for treatment under the Geneva agreement which states that "prisoners of war" are defined as uniformed soldiers, captured on the battlefield in the act of fighting under authority of the government of their country. Terrorists are neither uniformed, nor fighting under authority of any government. They also are not members of the Geneva Convention and do not adhere to the Geneva rules. They are a new kind of prisoner for which rules have yet to be established.
This is exactly what President Bush was trying to do with his order of Military Tribunals. They cannot be court marshaled, they are not in our military. They are not domestic criminals and therefore do not belong in criminal courts. We saw what happened when we tried that with Zacarias Moussaoui. Ordinarily, we would just keep them in prison until the end of the war, then release them or try them for war crimes. But this is expected to be a very long war and President Bush is trying to be fair with them. He doesn't have to put them on trial. He doesn't even have to obey the court ruling on this issue, he can simply ignore it if he wants to and the court has no power of enforcement over the President.
Justice Clarence Thomas wrote a strongly worded dissent, saying the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy." I don't see that as being the case here. I suspect Justice Thomas was thinking about the New York Times leaks when he wrote that. This won't effect the President's ability to fight the war on terror, only his ability to put them on trial for their acts.
The court's willingness, Thomas said, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous." Justice Thomas is recognizing the court's violation of the separation of powers and the dangers of the courts becoming involved in running a war.
The case focused on Salim Ahmed Hamdan, a Yemeni who worked as a bodyguard and driver for Osama bin Laden. Hamdan, 36, has spent four years in the U.S. prison at Guantánamo. He faces a single count of conspiring against U.S. citizens from 1996 to November 2001 and was defended by a government-appointed military lawyer with an assist from a private law firm.
The administration said foreign terror suspects don't have the right to come into U.S. courts and demand all of the rights afforded to U.S. citizens under the legal system here but that they would be given some rights under rules for the tribunals. The justices said conspiracy was not an appropriate charge under the so-called "laws of war," under which the administration said it could set up the tribunals.
So the question remains, what do we do with these prisoners? Over 300 of them held at Club Gitmo have been determined to be not dangerous and have been returned to their home countries or other detention facilities in foreign countries. The ones who remain, about 450 of them, have been determined to be highly dangerous and determined to kill Americans if they are ever released. So what good is it to put them on trial anyway? What do we do with them after the trial, return them to Gitmo until the end of the war? This is the question facing the Bush Administration right now. A question that so far has no answer.
With all the liberals in America complaining about terrorist's civil rights, we can't afford to maintain custody of these terrorists much longer. The liberals will eventually get their way and free the prisoners, provide them with free US housing, healthcare, social security, and welfare. Liberals will insist they be given use of the unused FEMA trailers ordered during the Katrina disaster. Then, of course, they will offer amnesty to the terrorists and a path to citizenship in America.
The answer to the Supreme Court ruling is now being considered in Congress. The court didn't say Bush can't have his tribunals, it merely said he can't have them without congressional approval. Congress will likely grant that approval within a week or two.
The Associated Press and Fox News contributed to this report.
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