PDF of ruling Here.
So says Justice Scalia in his dissent of a horrible, horrible decision from the Supreme Court that basically says our Constitution applies worldwide:
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases . . . in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.
Here is the Scotus Blog:
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Of course they are, but for enemy combatants captured on the battlefield in a far off land and held on foreign soil? Are you freakin kidding me?
And now, the man behind 9/11, Khalid Shaikh Mohammed, will have access to our courts and all the bells and whistles that come with it. He wasn’t read miranda rights I’m sure….does that count now also? The soldiers who captured them will now have to testify?
Ed Morrissey asks:
In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself?
Both the Chief Justice and Justice Antonin Scalia issued dissenting opinions, and all four dissenters joined in both dissents. In his dissent, Justice Scalia writes, “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.” Justice Scalia’s 25-page dissenting opinion concludes, “The Nation will live to regret what the Court has done today. I dissent.”
UPDATE
Dan McLaughlin at Redstate has been reading through the opinion and it appears that the majority believed that while Cuba was foreign soil, the US had sovereignty over their little piece of land, thus Habeas Corpus applies:
[F]or purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take noticeof the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.
Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles.
~~~Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.~~~And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our 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. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
What a horrible day this is for the War on Terror. God knows what kind of damage this ruling will cause in the future for our country.
UPDATE
More Scalia from the full opinion:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other Constitutional protections as well). It blatantly misdescribes [sic] important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
UPDATE
Marty Lederman believes the court left some issues untouched:
But as far as I can tell just yet, the Court did not reach the two even more important questions:
1. Whether the Constitution applies to detainees held outside GTMO; and
2. What the substantive standard for detention is: “It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined.”
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether GTMO should be closed (although it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct).
Nor does it affect, in any dramatic sense, possible military commission trials — with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
UPDATE
The Court’s decision is bad on many levels and I will continue to review the decision and determine its sweeping effect on our military. I will also explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision when it comes to protecting our men and women in the military and our nation as a whole.
The Court has conferred upon civilian judges the right to make military decisions. These judges have virtually no training in military matters yet civilian judges, in some of the most liberal district courts in the country, will have an opportunity to determine who is a threat to the United States.
Furthermore, the habeas trials will put great burdens on our military forces. Enemy combatants potentially may be able to sue American troops for money damages and federal judges will now be in charge of the day-to-day military prisons and the interrogation of prisoners. This will empower activist lawyers and interest groups to intervene in basic military matters for the first time in history. …
I agree with Chief Justice John Roberts who noted the legal procedures available to detainees today are unprecedented and more than sufficient. I only wish one more member of the Court would have listened to his wise counsel. Instead, they took what I consider to be completely dangerous and irresponsible actions during a time of war.
As does Lieberman:
The Supreme Court’s decision fails, in a dramatic way, to appreciate that we are at war and that our enemies are relentless in their pursuit of our destruction. Let us not forget that at least 30 prisoners that have been released have already returned to the battlefield.
UPDATE
Everything you need to know about the decision from Justice Roberts: (via The Corner)
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
Update
McCain is concerned:
BOSTON, MA — Sen. McCain told reporters Thursday that the Supreme Court decision declaring that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to use civilian courts, “concerns” him.
“I was just informed of the Supreme Court decision. I haven’t had a chance to read the opinion yet. It obviously concerns me. These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice Roberts’ (dissenting) opinion in this decision,” McCain said at a Boston press conference this morning, an hour after the ruling was made public. “But it is a decision that the Supreme Court has made. Now we need to move forward.”
As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.
Update
Dan McLaughlin on what this ruling did:
Let’s start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held “those procedures are not an adequate and effective substitute for habeas corpus.” The Military Commissions Act of 2006 specifically precluded the DTA’s procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court’s jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA “operates as an unconstitutional suspension of the writ.”
Then he rips into Obama’s reaction to the ruling. First Obama’s reaction:
Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain.
And then the rip:
It’s not clear what Obama means here. First, if the DTA’s procedures are themselves “a legal black hole,” and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he’s ripping McCain for “support” of Bush’s Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place – part of Obama’s strategy of pretending away McCain’s actual record. Third, if Obama means that McCain “supported” Bush’s policy by voting for the DTA and the MCA, what about Obama’s own vote for the DTA?
I doubt Obama even knows the answer to those questions. He has been flip-flopping more then John Kerry.
More from Michelle Malkin, Macsmind, The Volokh Conspiracy, and here.
See author page
Good GOD, the ACLU and the freakin’ libs will have one fine field day with this. I can see it now, lines of GIs and Marines waiting in courthalls for their moment to testify……….the lib lawyers and lib district judges will gut our military effectiveness with this crap – the abominable administrative nightmare that our commanders will face with this will make any headaches they have now look like nothing.
The solution is simple. We will no longer take prisoners. Arms in the air make a nice frame for a headshot.
Granted, we will lose out on some intel, but I’d rather that then the possibility that these guys walk because the CSI:Miami team is not on the spot every time a car bomb goes off in Afghanistan.
The Left Wing has really won a big fish here. Is it just me or are we become the EU overnight?
The ancient writ is upheld. Excellent.
Scalia:
will make the war harder on us.
Maybe. Last I checked the guys at Guantanamo were not captured recently. Or in Iraq. Relevance to that war seems limited. But maybe Scalia is referring to the war on terror, or anticipating future fallout.
It will almost certainly cause more Americans to be killed.”
Possibly true, but beside the point. We have a system of laws based on rights, precedent, and procedure, not some judge’s utlitiarian ideas about how to save the most lives.
The Nation will live to regret what the Court has done today
‘The Nation’ doesn’t have feelings. Some people will hate this decision, and some will love it.
SHOOT TO KILL!
I can see the ad now…
On the next CSI: Kabul, H and his shades leave the city and head to Kunar to investigate a shooting.
H: “Do you see what I see, Eric?”
Eric: “What’s that H? An entire village of people armed with AK-47’s that shoot the same type of ammo that was used in the shooting?”
H: “No, Eric…I see….a suspect.”
Eric: “But H, how will we know who’s rifle was the one that was used in the shooting?”
H: [pulls cell phone from sportcoat, presses speed dial and listens] “Bring in everyone who has an AK-47 rifle, gunpowder residue on their hands, and has been near a poppy field in the past 72 hrs. Our gas chromatograph machine will pick out the right person by identifying which one was near poppys outside of Kabul because their pollen is contaminated with smog rather than the pure pollen of the Afghan, Kunar Province poppy.”
Eric: “H, that means we’ll have to take samples from every single-”
Bang!
Go to commercial
“We will no longer take prisoners.”
True, Dreadnought! Never, ever fight a war with lawyers. Is there anything they can’t dick up?
Lawyers are parasites! Too many parasites will kill the host.
Excellent news.
With such as Roberts, Scalia and his toady Clarence Thomas it’s difficult to bear in mind we’re supposed to be the good guys.
You know.
The rule of law and such.
Cheers.
What kind of person are you Arthurstone to consider this good news? Short-sighted? Yep. Rule of law my butt.
yes, let’s just line everyone who looks like a radical muslim up against a wall and shoot them. hands up, that was good one. such t he jokester. much easier on the commander in chief, no? no grey areas, no mistakes to have to talk about later – everyone just dies, so much for pro-life, but hey, some lives are better than others, right Right? God (your good Christian God that is) can sort it out on the back end. God forbid, your government should have to justify why it would like to hold someone indefinitely, better for you all and the rest of the world that blind reliance on the Unitary Executive’s say so saves the day.
Yes, now that the Constitution is restored and Bush’s BS legalisms rejected, tis a sad day for the good ol’ USofA. Got to start playing by rules again. Can’t just go making them up as you go along. Tisk, tisk.
I blame the Bush adminstration. Constitutional rights should not extend to non citizens but the writ of habeas should be considered an unalienable human right. Because adequate provisions were not made, we have now a poor decision.
Good GOD, the ACLU and the freakin’ libs will have one fine field day with this. I can see it now, lines of GIs and Marines waiting in courthalls for their moment to testify……….the lib lawyers and lib district judges will gut our military effectiveness with this crap – the abominable administrative nightmare that our commanders will face with this will make any headaches they have now look like nothing.
Take your meds. It is not a war. War was only declared by the neocons and the Bush administration – not Congress. This is an illegal invasion and occupation of two countries which have never attacked us and would never be a threat to us. You are frightened out of your low IQ mind. I understand you feel the King can do no wrong. If that is how you feel, please move away from America. We don’t need whiny little babies living here. You shuold be ashamed for wanting to spit on our way of life. Find you courage. America is stronger than you give her credit for. My question is: How strong are you?
bbartlog;
“The Nation’ doesn’t have feelings. Some people will hate this decision, and some will love it.”
If this wasn’t such a childish piece of sophistry, I would have to give you credit for solving the slave reparations problems and set you the task of getting our money back from the Japaneese Americans.
Before Arthur breaks out the champagne to celebrate terrorists using our court system, I really would like to read this opinion. Does anyone have a link to the full text online? Supreme Court site doesn’t have anything from 2008 posted yet.
Oddly enough, my skepticism on their rationale goes back to the debate Doug and I were having on the Iraq base agreements and SOFA’s.
Doug was suggesting (as did the dissenting Iraqis for proposed US bases there) that an SOFA undermines the host country’s sovereignty. To what degree is determined by the specific terms and mission for the foreign bases.
With this foundation in mind, would we then assume that the host country maintains full sovereignty over a base, and the territory it’s located on, with no SOFA in place?
Per Global Security’s explanation of SOFAs:
Granted, SOFAs generally address US military personnel and not necessarily those held under their authority. From what I read, with a SOFA in place, it was the responsibility for the US military to insure those held had a right to trial, which can also be construed as a military tribunal.
But if I interpret the starting place for a SOFA, there is no mistaking that the host country exercises complete authority over not only the US military, but *anyone* (including enemy combatants) in that territory.
Which brings us to Guantanamo and the reason for it’s existance. It was set up in 2002 for just the express purpose of housing enemy combatants on territory located outside the US’s, or other state’s, legal jurisdiction.
Read my keyboard lips… GITMO HAS NO SOFA AGREEMENT with Cuba. It is present on an indefinite lease, with no agreement in place.
Now I’m wondering if the Supreme’s addressed Cuba’s sovereignty status over Gitmo in their decision. And how did they come to this being US territory, sans a SOFA?
BTW, lest the usual suspects that trend towards the left here on FA assume it’s a bunch of innocents, housed at Gitmo…. Gitmo criteria is as follows:
Whether language has changed to accommodate for those captured in Iraq, I don’t know. But it sure doesn’t sound like innocent bystanders qualify.
The prisoners in Guantanamo should be treated either as POW’s or as criminals. If POW’s then they are entitled to Geneva Convention protections. If criminals then they should be charged with a crime.
Being help for years under neither standard is wrong. And all the hyperventilating of Conservatives here about “shoot prisoners” is just plain wrong as well.
I really don’t mean to hijack this thread, so please forgive me ahead of time! I wanted to let you all know, if you didn’t already, that tonite is John McCain’s first Presidential Town Hall (sans Obama, since he declined participation) on Fox News at 7 p.m. EDT.
Now, back to your regular blogging…
Steve,
The Geneva Conventions are very, very specific as to who is covered and who is not.
Anyone who is fighting without a uniform (all of these people) or fighting/hiding among civilian populations is specifically excluded.
I am all for imposing the punishments laid out for those who don’t fall under GC protections. Some will find that option unpalatable but it is the law.
These people in no way, shape, or form fall under the US Constitution.
What’s next Miranda on the battlefield?
I posted this before. These prisoners are NOT POWs according to the GC and are being tried by military tribunal. Some have been released and many who have came right back and attacked military and civilian targets again. Not even POWs get the rights afforded US citizens….. until now. Now it seems unlawfull combatants and POWs are one and the same and both are given more rights than the GC states. What’s next, we in the military get put in jail for assault or attempted murder when these fools attack us?
Legal vs Illegal (Unlawfull) combatants are defined by both the Geneva Conventions and expanded upon in the US law of Land Warfare (FM 27-10).
From http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument
Legal combatants defined:
Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Since many of the terrorists we captured are paid by AQ, Iran, or others to fight, they can be defined as mercenaries. This is why the US and other Western nations have proposed making mercenary style units part of regular forces (with all the rules and regulations).
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Article 47 — Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
Now from the FM 27-10 US Law of Land Warfare (which I as a Soldier follow):
Chapter 3, Section 2
73. Persons Committing Hostile
Acts Not Entitled To Be Treated
as Prisoners of War
If a person is determined by a competent tribunal, acting in conformity with Article 5, GPW (par. 71), not to fall within any of the categories listed in Article 4, GPW (par. 61), he is not entitled to be treated as a prisoner of war. He is, however, a “protected person” within the meaning of Article 4, GC (par. 247). (See paras. 247 and 248, concerning the status of such
“protected persons” who have engaged in conduct hostile to the opposing belligerent.)
74. Necessity of Uniform
Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property. Putting on civilian clothes or the uniform of the enemy are examples of concealment of the status of a member of the armed forces.
75. Spies
a Treaty Provision.
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of despatches intended either for their own army or for the enemy’s army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and, generally, of maintaining
communications between the different parts of an army or a territory. (HR, art. 29.)
b. American Statutory Definition. The first paragraph of the foregoing Hague Regulation has been in effect somewhat modified, as far as American practice is concerned, by the subsequently enacted Article 106 of the Uniform Code of Military Justice (64 Stat. 138; 50 U.S.C. 700), as follows:
Art. 106. Spies.—Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces of the United States, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court- martial or by a military commission and on conviction shall be punished by death.
c. Article 106 Governs. Insofar as Article 29, HR, and Article 106, Uniform Code of Military Justice, are not in conflict with each other, they will be construed and applied together. Otherwise Article 106 governs American practice.
79. Aiding the Enemy
a. American Statutory Definition.
Any person who—
(1) aids or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or
(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct. (UCMJ, Art 104; 64 Stat. 138; 50 U.S.C. 698.)
b. Interpretation. In time of war, the rule of the above article is general in its application to all persons whether or not otherwise subject to military law and without regard to citizenship or military or civil status, who give aid to an enemy government or persons adhering to it. It may be that this statute, should it be subjected to judicial interpretation, would be held to authorize the trial of civilians by military tribunals only when the offense had been committed in territory under martial law or military government, or within the zone of military operations, or within areas invaded by the United States, or within or in the vicinity of a military installation, or in a place otherwise subject to military jurisdiction. Cases occurring in the United States outside military jurisdiction are triable by the civil courts under the espionage laws mentioned above (par. 76) and laws relating to treason (18 U.S.C. (chap. 115)).
And now to the crux of the issue.
80. Individuals Not of Armed Forces Who Engage in Hostilities
Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions pre-scribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.
81. Individuals Not of Armed Forces Who Commit Hostile Acts
Persons who, without having complied with the conditions pre-scribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), commit hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment. Such acts include, but are not limited to, sabotage, destruction of communications facilities, intentional misleading of troops by guides, liberation of prisoners of war, and other acts not falling within Articles 104 and 106 of the Uniform Code of Military Justice and Article 29 of the Hague Regulations.
82. Penalties for the Foregoing
Persons in the foregoing categories who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct. Lesser penalties may, however, be imposed.
Emphasis mine for those, like #10, who have their panties in a knot over actually enforcing the law where appropriate.
Like I said in #17 some will find it unpalatable, but it is the law.
***
And from #4, this glittering gem:
From Justice Scalia:
bbartlog’s unbelievable response:
“Beside the point”??
More Americans dying is “beside the point”.
I’m speechless. Absolutely, positively speechless.
Actually not speechless, but I’ll refrain from further comment out of respect for the rest of the people who read and post here.
I will say this.
bbartlog need not ever, ever, EVER say anything about casualty levels EVER because that issue is “beside the point.”
Has anyone figured out that SCOTUS gave the terrorists a “right” that they don’t even have in their own country/ies?
Tom
We should all be in the streets raising hell, If I were anywhere near DC that’s where I would be…
Buffoon,
Considering “gun-free” DC’s astronomical crime rate, would anyone notice?
Fred, take your meds — you don’t give a rat’s arse that this gives murderous slime access to our courts, murderers who were picked up off the battlefield, not on a farm in Kansas.
It’s pathetic ideologues like you that make the world more dangerous.
Re: “These people in no way, shape, or form fall under the US Constitution.
What’s next Miranda on the battlefield?”
Your comment, while it is typically (for you) snide and sneering, makes no sense.
I said they should be EITHER POW’s OR Criminals. The Geneva Convention does not require Miranda on the Battlefield (which, by your sarcastric comment would make them POW’s).
If they are not POW’s, and you conclude they are crimnals, then they should be charged with crimes. But not held indefinately under neither of those classifications.
I find it objectionable that supposedly “Conservative” people believe that the President of the United States hass the authority to order the imprisonment of someone, anyone, who is neither a criminal charged/convicted of a crime, or a POW, forever, without either charging him/her with a crime, or declaring him/her a POW in wartime.
You are saying that the President of the US can order the lockup of anyone he/she wishes, any time, any where, without a disposition. And Conservatvies, who are constantly telling me that Liberals want an “all powerful government”, love this.
Geneva convention rules. Caught on the battlefield participating in the battle without a uniform. Field trial and to the wall. Evidently liberals have no families so they have no one they care about in danger, or they have families but as indicated by their comments they could care less about them. The entire democrat party has became the Me, Me, Me party.
Bad news, with fuel prices and Gods revenge on the food producing areas they will soon be begging for help. Glad the family planted extra large gardens and kept a few extra head of cattle this year. All for personal family use. None for sale. Have access to plenty of wood and coal for heat and cooking. I knew there was a reason for putting two fireplaces in a few years ago. Out with the gas logs, in with the real logs. The moonbats haven’t seen polution until millions have to resort to wood and coal.
Will the coming surge in D.C. make it almost as safe as Bagdad?
#2 said:
“The solution is simple. We will no longer take prisoners. Arms in the air make a nice frame for a headshot.
Granted, we will lose out on some intel, but I’d rather that then the possibility that these guys walk because the CSI:Miami team is not on the spot every time a car bomb goes off in Afghanistan.”
Actually it’s simpler than that. BattleField trials and immediate executions of those found guilty and those found not guilty released. Immediate military justice. Does anybody think that any other country would do it any different? Especially Russia?
And on the home front, Kennedy must be impeached and Congress must rewrite the laws in such a way that military things are handled by the military only. The concept of “unlawful combatant” apparently must be written into US law so that it is made crystal clear.
Another LIE Steve.
Your pattern continues.
There was nothing “snide and sneering” in that comment.
You’re creating victimization where there is none.
My first inclination would be to say that you don’t even know what Miranda is but, since you are such a delicate flower you might find that insulting, I won’t say that.
Miranda is completely unrelated to the Geneva Conventions. It is related directly to US criminal law which is essentially where the USSC went yesterday.
So, my question was completely valid. Will Miranda on the battlefield be next?
Will we be flying soldiers home to testify in the DC District Court every time one of these people is brought up on charges? I contend that is where we are headed because, after all, under US law every person has the right to confront their accuser.
So is it now clear to you that Miranda is completely unrelated to the GC and/or POW status?
I hope so.
You’re really confused, contorted, and woefully wrong there. You’re mixing apples and oranges again too.
Let me help you.
In order to qualify for GC protections these people have to meet a very specific set of conditions as laid out in post #18. Read through the law, the provisions therein, and then come back.
I’ll wait.
Up to speed now?
Good. Let’s continue.
Moving on. The GC protections do NOT apply to these people because they are 1)fighting out of uniform and 2)hiding/fighting among civilian populations. Thus, they CANNOT be considered POW’s when they are captured. Therefore, they fall under the provisions laid out in #80, #81,and #82 ChrisG’s #18 post.
Actually, we agree somewhat. They clearly do not qualify as POW’s, and they don’t fall under US criminal/civil law because they were not captured on US soil.
So, you’re left with the options established by the GC and the Law of Land Warfare for field trials and imprisonment/execution.
More broad sweeping accusations and untruths that have no merit.
The President, under the US Constitution, has the power to wage war. Period. With the exception of funding, there is no oversight over the President in relation to war.
President Bush made the decision to imprison these people at GTMO rather than follow through with the other options that are specified within the law. I disagree with his decision in this regard. (Write that down since you say it never happens.) I say that we should have trials in the field and immediately impose the sentence of the court.
As I said in #17 and #19 above, some will find that unpalatable but that is the law, and since you are all about the law you should be in favor of that too.
Another blatant falsehood, some would call it a LIE, but I’m choosing not to be “snide and sneering” lest I offend your delicate disposition.
Since you chose to make such a broad, sweeping accusation, can you show me anything that I, or any other person here, has said which indicates we would be in favor of the “lockup of anyone he/she wishes, any time, any where, without a disposition”.
I won’t hold my breath waiting because that won’t happen.
You obviously do not know much about the law Biggntuff because clearly the court would call that unconsitutional. I doubt we could make this a consitutional amendment so your point is moot. And who cares what other countries would do? Isn’t that the point of being America?
Scalia is an ape. The constitution is clear on Habeus, and he is supposedly a strict constructionist… I am confused.
And to say Americans will die from this ruling is retarded and used as a scare tactic. If this was the only thing we measured our decisions with then we would not have cars.
This ruling was a no brainer and only the 25% of Americans that still believe in Bush would back it.
CentFla, the law may be clear on habeaus for some instances. But a full read of the 134 pg opinion shows that application of habeas to those designated enemy combatants is not as crystal clear as you like to believe.
Also that there are no… I repeat *no* precedents even back to the Framers’ era… to use for the situation in Gitmo. It is totally unique. The Supreme’s were shooting from the hip on this one.
The closest case comparison is Johnson v Eistentrager in the 50s. And the concurring justices chose not to give that case sufficient weight, IMHO. But then, that’s how the court works. Each one evaluates precedent and comes up with their own conclusions.
Interpretation of this is not so clear that it was a 9-0 decision. 5-4 indicates there is considerable room for debate. While our system is set up to accept even a slim majority as the decision, do not portray this as a slam-dunk right vs wrong interpretation. Four greater minds than yours or mine – with authority – dissent from the majority.
bbartlog’s unbelievable response:
Possibly true, but beside the point.
“Beside the point”??
More Americans dying is “beside the point”.
I’m speechless. Absolutely, positively speechless.
Be speechless all you like. The government is not tasked with maximizing the number of Americans alive, but rather with a limited agenda set forth in the Constitution. And that’s as it should be. If we had a government whose agenda was preventing needless American deaths, we would have
– very low speed limits (to minimize highway casualties)
– smoking banned everywhere
– extensive dietary restrictions
– mandatory annual health checkups
And so on. While there might be some people who would see the above as positive developments, I would regard them as deeply unAmerican.
Now, of course American lives lost to terrorism are a separate matter. But the point is that a lot of people seem to think that as soon as you can show that some policy or other is going to result in more deaths, the argument is over. That’s not true. We have many policies that result in a lot of potentially preventable mortality, and a lot of those *are good policies* in spite of that.
Don’t look now, but your ignorance is showing.
If the job of the gov’t is not to maximize the number of Americans alive, then why do we provide flack jackets and helmets and armored vehicles and tanks and the finest field hospitals and so forth to our servicemen and women in uniform?
Of course, preservation of life is the job of the gov’t.
We have speed limit laws from one corner of this nation to the other. Seat belt laws and laws regarding alcohol too.
Smoking bans are in place in every state in the union. Some bans are total. Some are partial. All are aimed at better health and the preservation of life.
We are rapidly headed in that direction. Ever heard of trans-fats?
One plan that was proposed required mandatory enrollment. Perhaps checkups are next.
***
Since you chose to mention the Constitution, I’ll give you some bonus questions:
1) Who does the Constitution cover?
2) Who does the Constitution give total authority to wage war (with the exception of funding)?
3) Where are the Courts given authority over foreign citizens taken into custody on the battlefield of a foreign country?
Bbart said:
Oddly enuf, everyone of these items listed are being attempted at every turn, and some have been partially accomplished.
Doesn’t exactly reconcile with your point of “the government is not taxed with maximizing the number of Americans alive…”, don’t you think?
PS: ah ha… I see Ayi Chi and I are furiously posting simultaneously with the same perspective!
Yes, Mata.
Great minds and all that.
🙂
Here’s another interesting aspect courtesy of SayAnythingBlog.com
It seems that the Supremes ignored the Constitution with yesterday’s ruling.
Perhaps our resident “experts” on all matters Constitutional will shed some light on this.
From Article III, Section 2:
From the Military Commissions Act of 2006:
The Supreme Court had no authority to issue a ruling on the status of habeas rights for Gitmo detainees per the Constitution itself.
Now, we can debate about whether or not it’s proper for Congress to deny Gitmo detainees access to habeas rights, but that Congress did make such a denial and that the power to do so is explicitly provided for in the Constitution is undeniable.
As far as I can tell, President Bush has no need to even acknowledge that this ruling – unconstitutional by definition – was ever made.
Must unfortunately beg to differ with you on a few points, Ayi Chi.
MCA granted exclusive rights for review of detainees CSRT status to the DC district courts, *and* to the Supremes… taking it out of the hands of the feds (where they had been attempting to operate heretofore).
Under Subchapter VI: POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS
That said, all laws passed by Congress can be challenged in the SCOTUS. And the Supreme’s do have the right to interpret such Congressional laws as vague, un Constitutional, etal… striking down the legislation until it is amended to fit the Supreme’s criteria.
uh… what the heck is the link to the voiceover actor site for??
Oops… I fixed the link.
Your quote from Subchapter VI is for post-trial procedure.
The section I quoted specifically addresses habeas.
I have to read the remainder of the MCA.
Regarding all laws being subject to review by the SC, Article III, Sect 2 says that Congress can make exclusions.
I could be wrong…..
I’m going to do some more reading.
Yeah this stuff is enuf to make your eyes glaze over, eh?
The post trial is their legal recourse for review status and military tribunals. As long as defined as “enemy combatants”, they have no right to habeas. DTA is the missing piece of the puzzle that is to emulate their habeau corpus rights while in the “vague” status stage.
If they successfully overturn their CSRT in DC district, then they can be allowed those Constitutional rights. This is the step inbetween… get what I mean?
But their legal recourse, per MCA, is exclusive to the DC district (relieving them of enemy combatant status), and then the Supremes. I could be wrong too, but this same information was also reiterated in the concurring opinions from Boumediene v Bush yesterday.
Here’s what I have come up with:
The Constitution, through the Exception Clause, provides Congress the authority to limit the SCOTUS.
Article III, section 2:
More Exception Clause background from Alexander Hamilton in Federalist #80:
Congress passed, and President Bush signed the MCA of 2006 [1005(e)(1)] which contains this :
So, there you have the Exception Clause being implemented by Congress, signed into law by the President, thus removing the authority of SCOTUS or other Courts to review.
From Hamdan v. Rumsfeld in the DC District Court, Judge James Robertson refused to rule in favor of Hamdan in this case regarding habeas corpus, writing:
***
Justice Kennedy wrote:
The last time I checked, Congress wrote the legislation and the President signed it into law, so yes, they do have the authority to say what the law is.
On two separate occasions the Congress has enacted very explicit and specific laws to lawfully and Constitutionally strip the Supreme Court of jurisdiction to hear cases involving non-citizens currently detained outside of sovereign territory held by the United States.
It seems rather apparent that the SCOTUS ignored the Exception Clause and overstepped in its’ ruling yesterday.
This brings to mind President Andrew Jackson who said “John Marshall has made his
decision, now let him enforce it.”
It’s time for President Bush to invite the Court to do the same.
Well, we embark on some deep stuff now, eh guys?
IMHO, too simple, unfortunately, Aye Chi. There’s a reason Constitutional lawyers have a lifetime of education and become re’educated with every daily decision that happens. And again, I’m no lawyer. But what appears obvious to us is, again, filled with history of legal disputes. But you and others have hit upon a popular argument in the Constitutional law arena.
The basics: Congress – the body of elected officials (granted mostly lawyers nowadays) – is tasked with the job to create laws. The Judicial branch is the body tasked with the job of interpreting the laws. Did the Framers set up the Constitution and balance of powers, giving the legislative body the power limit the judicial branch from examination of it’s created (perhaps unjust) laws? In which case, where is the “balance of power”, and how was Congress ever to be checked?
In States, cities and other district governments, elected officials are not necessarily versed in law. Doesn’t stop ’em from making them, tho. Legislative branches often create laws that are in conflict with others, or inconsistant with precedents and their “interpretations” by the courts. These cannot be sussed out and rectified until a lawsuit is brought to challenge the legislative error. This is, of course, the judicial branch’s entire reason for existing.
There is no logic to allowing a body of legislators to “expand or contract” jurisdiction by a court. They cannot rise above Judicial branch’s review of their legal creations and be… in essence… “above the law” by telling the courts, “hands off” when they feel like it.
This is where we come to the Article III, Section 2, Clause 2, as you quote above:
Cornell has an excellent page with a somewhat brief (by legal standards) discussion (seriously laden with legal terminology) of the controversy, and historic application, of this battle between the judicial branch and congress over this clause. They call it “The Theory of Plenary Congressional Control “.
(more reading here too. Haven’t pounded thru all of this one yet but be sure to read “The Theory Revisited” about halfway down the page)
Read thru this and you learn there is a history of the early SCOTUS encounters in Congressional battles… most having to do with State’s rights. But perhaps the most telling is in the final summary.
Prior historic content before this final summary give some clue as to the battles, and thereby the Court’s working opinion of a Congress usurping the SCOTUS jurisdiction.
Again, remember, this is stuff that can make the eyes glaze over… you have been warned.
It is these precedents that I believe has allowed the SCOTUS to pass over arguments made by journalists and bloggers who that insist Congress is allowed to “limit” the court via the Constitution. And BTW, I have yet to see a press article written by a bonafide Constitutional authority purporting this. It’s been all ambitious laymen, like us, so far… all struggling to comprehend why this has happened when it seems so obviously wrong. And all of us very limited in our scope of comprehension.
But hey… we give ourselves (as Phillie Steve says) “high fives” for trying to improve our understanding and learn, right? Healthy debates, and we’re all bound to learn something.
Certainly someone can take this whole concept and argue it before the SCOTUS. But think of it. You’re arguing before justices, asking them to relinquish their interpretative powers and jurisdiction (or have limitations) and hand over legal matters, un vetted, to a body of elected officials. You might as well be asking Congress to vote giving themselves pay cuts annually, instead of pay raises. Like they’d agree to that….
Can Congress slap the courts down on this? I don’t know, but don’t think so. They can, however, remove DTA and the MCA from the law books. That certainly has an effect on the court’s jurisdiction perception. No law, no way for the court to “interpret”, if you get what I mean.
But the base concept is, how can the judicial branch be an oversight/balance to Congress, if all the elected ones have to do is make a law that limits judicial authority in jurisdiction? That’d be one scary country… Especially with the bozos we have in Congress.
As I said, it sounds good in theory when you don’t agree with a decision. But exactly how much power do you willingly want to give to Congress to tie the hands of the judiciary in reality?