Aaaaaand how do you know they’re “Unlawful combatants”? Or what they are?

Geneva Convention breaks down enemy combatants into two categories… unlawful and lawful. Lawful are generally those fighting for a state/nation. Unlawful are rogue thugs, like terrorists, who belong not to a nation, but (in this case) to an ideology. I believe it was Curt or ChrisG that had a great post on this in another thread, if someone remembers where to dig it out for reference.

Detainees in Gitmo were either picked up on battlefields, or were turned over by informers. Many have already been released, and there are 70 some (mostly Algerians) are are refused re’entry into their home countries because they don’t want them back. They’re just living off the US tax payer because they have no where to go, but are actually free to leave. The US is working on that group’s quandary.

However they aren’t sitting there sans finding out “what they are”, as you suggest. Since this is a new type of enemy, US laws had to create something to give unlawful combatants some form of due process. Thus the Detainee Treatment Act of 2005. They are run thru military tribunals, or CSRT (Combatant Status Review Tribunal) to determine status. If they are found to be unlawful combatants in that review, per the the Military Commissions Act of 2006, the detainees can could challenge that status in the District of Columbia circuit courts, with oversight by the SCOTUS.

SCOTUS blew out the MCA as un Constitutional because they said the CSRT process was not the equivalent of habeus corpus. And the argument is, why are they granted habeus corpus when Cuba is neither a territory, nor will it be considered as a US territory in the future. Cuba still retains full sovereignty over the Gitmo land, tho the US has full authority and power over the base. This is a totally unique arrangement compared to other foreign bases, and was created NOT by George W. Bush, but by Teddy Roosevelt back in 1903.

The SCOTUS, sans exact apple to apple precedent, refused to compare Gitmo to the 1950’s case of Johnson v Eisentrager (the closest comparison), and instead decided to treat Gitmo like a US territory and grant Constitutional rights to detainees. Thus the reason for the dissenting judges.

So:

1: detainees got military reviews to get status determined
2: could challenge that status in the District of Columbia courts (not the federal)
3: and if successfully won a change of status may have other options for legal recourse

SCOTUS tossed out a process created specifically for the new type of enemy thru Congress, and threw the legal due process world into a tizzy, while simultaneously granting stateless detainees/combatants, who have never set foot on US soil and detained on foreign soil, all the rights of a US citizen.

And to boot, they reversed a jurisdiction limitation imposed upon them by Congress (ala running thru DC circuit as opposed to federal system), as allowable via the Constitution, for what appears to be no legal reasononing.

Understand what happened a bit better now? It’s ain’t a “feel good” situation. It is all legal interpretations. In additional to creating legal due process mud and endangering US citizens by having these guys run through our court system, they have ignored all reasonable interpretations of prior decisions, running amok in a completely new direction. Having the highest court of the land making up new rules because they want to is a dangerous path.

It seems you are being intellectually dishonest by purposely misinterpreting my words.

Am I mistaken?

My liberty is completely unaffected by these people being detained at GTMO.

Hey, we finally agree! These people aren’t affecting our liberty!

how do you know they’re “Unlawful combatants”? Or what they are?

Let me answer your question with a question:

Which ones were fighting in uniform?

That’s how you know. The applicable laws are very clear.

But the land of the brave is full of chickens these day who will cheerfully jettison liberty for security.

My liberty is completely unaffected by these people being detained at GTMO.

But the land of the brave is full of chickens these day who will cheerfully jettison liberty for security.

Not totally full. Live Free or Die!

The U.S. is a signatory to several human rights documents, GitMo violates those treaties on several levels.

But the land of the brave is full of chickens these day who will cheerfully jettison liberty for security.

Not a new situation though is it Salvage?

Have you ever even read the US Constitution? Probably a good idea.

Unlawful combatants (not criminals…) have never, in this country’s history, had Constitutional rights prior to this. America, in it’s compassion, granted them some legal recourse rights they did not possess via DTA/MCA. The SCOTUS decided those rights weren’t equivalent to habeus corpus, as they decided to classify the Cuban base as US sovereign territory… which technically it is not.

Yet full Constitutional rights are generally only granted, historically, to genuinely sovereign foreign territory and territories. Most of the time they used the foresight of whether the territory was anticipated to become a US state, or a completely sovereign nation. i.e the colony of Puerto Rico, which has it’s own Constitution and laws, but is still US territory and has a US federal court on the island. It was here that Ruben Berrios was tried.

Puerto Rico is understandable. But to equate Cuban detainees to Puerto Rico citizens? Gitmo’s unique situation is much more akin to the Germany base in Johnson v Eisentrager than it is to Puerto Rico, who also enjoy rights to vote in US elections.

The Supreme’s have decided to ignore precedents left and right, blazing a new trail and embarking the US legally on a new path, fraught with speed bumps and pot holes. They’ve left the legal system with conflicting precedents, and little guidance on how to rule. The Supreme’s shot from the hip on this one, and now they are giving that to the lower courts to do as well. Depending on what they decide, and how the appellate process goes, they willl end up revisiting the lower courts’ decisions to see if they shot from the hip, straight between the Constitution’s eyes.

And you consider deviation from precendents, and a foggy due process, a good thing?

I am never surprised at the bizarre and simplistic thought patterns demonstrated by all too many in this country.

It’s a good thing bin Laden came along huh? Otherwise America still might be thinking that it’s wrong to torture people or lock them up forever without a trial.

The portion that I saw referenced SCOTUS based on appeals but I didn’t see anything concerning jurisdiction prior to tribunal conviction. Not saying it isn’t there, I just didn’t see it.

I’ve gotta take a breather from these legal docs….I’m getting a brain ache.

Boumediene v Bush came from the federal courts to hear the Supreme’s on whether MCA had the rights to throw those pending cases, already in the court system, out. So in one way, they had no choice but to hear it.

But as I said, they were granted review jurisdiction over the DC District CSRT reviews in MCA as well.

That under the clause, Congress has the right to limit appellate and original jurisdiction, but it does not have the right to remove any and all jurisdiction from the SCOTUS. Think of it… if Congress could do that, it would be allowing them the power to place whatever legislation they choose above the law, and remove any possible legal recourse for everyone.

How would you, if a victim, obtain satisfaction if Congress can pick and choose what the court is allowed to hear, and rule on?

Bad juju. I don’t care who’s in the majority.

So I sum it up in three statements:

1:ALL legislation is subject to legal review in the court system, to allow for a petitioner’s rights.

2: The Supreme Court is granted the authority in the Constitution to be the highest and final judicial authority over all courts.

3: Therefore it follows that there is no law made by Congress of which the Supreme Court will not have the final review… if it makes it that far in the court food chain.

However the Exception Clause is not applicable here because SCOTUS always had jurisdiction. Congress granted and recognized that per MCA’s language, giving exclusive jurisdiction (to those designated unlawful combatants and had no Constitutional rights) to the DC circuit, and review by the Supreme’s.

So their jurisdiction as final absolute authority isn’t in question. However their right to ignore Congressional appointed jurisdiction, and instead shift jurisdiction back to feds and incorporating habeas corpus is indeed in question. It is usurping a Congressional act that added jurisdiction and rights, not took them away.

UPDATE ADD: also, by rendering MCA as unconstitutional, it removed the step detainees were required to take first… which was challenging their CSRT status first in the DC circuit. Boumediene held that this was an “inadequate substitute” for habeas. So those lawsuits that were pending appeal can now go back into federal courts for the hearing. Also, the opinion determined they didn’t need to go thru the CSRT review prior to filing habeas. It did, however, suggest that the federal judges at least delay until there can be a CSRT determination. But that wasn’t the focus of the decision. It was to determine if the pending habeaus cases MCA threw out could be heard

I suggest that DTA/MCA was an adequate substitute for habeaus corpus and no Constitutional rights granted to an unlawful combatant. First determine if they are a lawful combatant before granting them Constitutional rights. However the court refused to comment on suggesting what an alternative to habeaus would look like.

The fly in the soup is that the judicial system decides what is Constitutional

That’s the unfortunate part. There are Constitutional restrictions and checks on the Judiciary but so far it appears as if there is no one willing to avail themselves of them.

I wonder if Congress, who as a collective whole doesn’t like to have it’s Constitutional chain yanked, will buck this decision.

Or will the partisan rancor in Washington damp down their “co-equal branches” routine.

But if you were going to put a class action suit together for federal courts, I’d wager that my argument for reversal would be an easier case than yours.

On that count you may very well be correct.

I wouldn’t want to be in a court room with you unless you were advocating for me.

***

What is your position on the Exception clause in this matter?

It’s a little used, seldom litigated portion of the Constitution but present all the same.

An ruling which goes against the Constitution is not enforceable and can be legally ignored by the Congress and the President.

The fly in the soup is that the judicial system decides what is Constitutional, Ayi Chi. They are the interpreters of the law, not the legislators.. not the administration.

And we agree that the court has gone beyond it’s authority. We just disagree on what issues they stepped outside the boundary. Since neither of us are attorneys, we don’t get very far with our theories, eh?

But if you were going to put a class action suit together for federal courts, I’d wager that my argument for reversal would be an easier case than yours.