SCOTUS Finally settles the Guantanamo Bay Argument

[publius42]

If we want people detained without charges, all we do is hand them over to the French, who have no problem with doing that.

Some Americans seem to think we need to be more like the French when it comes to fighting wars, but I disagree.

 

[divemedic]

Isn't that what we did with the 400,000 prisoners we detained here during WWII?

1 Many of the ones held during WW2 were from countries who were at war with the United States. Many of the detainees in this case are not from countries which are engaged in hostilities with the United States, and were not captured on a battlefield. With that being the case, who makes the decision? Separation of powers would indicate that it isn't the executive.

2 There were also quite a few AMERICANS of Japanese decent who were interred, had their posessions taken from them without due process, and were shabbily treated. I don't think that historical precedent is always a good thing. Sometimes you have to view history as an example of what NOT to do.

 

[MedicineBow]

Firstly, I agree. They should have never been captured.

This probably wasn't your point, but the fact is we didn't "capture" them, or the vast majority of them. So the oft-cited "captured on the battlefield" rationale skips one of the roots of this problem. 95% of the detainees were turned over to us, in response to rewards or whatever. The problem then became we didn't know who the hell these people were, or the truth of why they had been turned over.

The Bush Administration then made a huge mistake. It decided to bring these guys onto de facto US soil while it figured out what to do...and then they dawdled (not to mention their truly tawdry torture BS). This had the effect of both turning Guantanamo into an international symbol of American high-handedness and making certain that sooner or later the Supreme Court was going to step in and announce that some process would have to be followed.

 

[Al Norris]

MedicineBow, you're right. It wasn't my point.

You have come out and said what I was going to lead zukiphile to. You've come right out and said it, while I was gonna watch him squirm as we neared it.... Party pooper!

Eisentrager is not controlling in this matter. Guantanamo is de facto US soil, which is why I mention that this is another in a continuing series of the Insular Cases.

The Constitution is the manual of operations for the Federal Government. The Court has just said that habeas corpus cannot be legislated away. That part of the MCA has been ruled unconstitutional.

Outside of being a prisoner of war, there is no authority for the military to indefinitely detain individuals who are not POW's upon US soil. That's the conundrum of not declaring war.

Treaties do not trump the Constitution. If the power is not there, no treaty can create it. If there are certain protected rights, no treaty can abrogate them. No international law can trump the sovereignty of the US nor the Supremacy of the Constitution itself.

The Executive nor the Congress shall defy the Constitutional limits as defined by the Court (Marbury v. Madison).

Are we a nation under rule of law or under an arbitrary and capricious tyranny?

That, my friends, is what this is all about.

 

[Shane Tuttle]

First off, I did the best I could to keep up with the discussion. I will admit that I'm not very well educated in this realm. With that, I must throw a knuckle ball because it seems that it was never discussed in length. Yet, I think it should have been done to avoid this stinking mess altogether......

Why haven't these detainees gone through a Military Tribunal? Let them be tried this way. If they're innocent, we have no choice but to drop them off to their country of residence. If they're guilty, then punish as needed.

The rebuttal (albeit not a strong argument) to ones that think they have nothing to do with being a terrorist is I don't think these guys were merely walking down the street minding their own business.

I think the "combatants" shouldn't be allowed to be tried in civilian court AT ALL. I think it will open up floodgates to doom. My point of argument is that the Geneva Convention doesn't apply to these detainees. They don't claim to represent a specific country. They are not in uniform. They don't follow the rules of combat under the Geneva Convention. Therefore, I think our military should take care of the matter...and yes, even if Bush is the Commander in Chief. Just because some people don't like him doesn't necessarily mean you change the rules of the game.

Where am I wrong? As you can tell, I need quite the education in this department.

 

[MedicineBow]

Party pooper!

Story of my life. That's why my wife won't take me to dinner parties anymore.

Are we a nation under rule of law or under an arbitrary and capricious tyranny?

The essential question, actually. Leaving the fascinating legal issues aside -- which may not be on point, I know -- I like this opinion for wrestling with just that question, and for what I think are its long-term, international implications.

One of the great strengths of this country is how it wrestles in public with those questions, puts all the power and policy struggles in our government on display, and no branch of government particularly backs down during the process. Those branches squabble like hell, but when the decision is made, by legislation, legit executive action, or court decision, then that's the way it is.

That is extremely unusual in the world, and the rest of the planet notices. It notices and makes America grow in its estimation particularly when, as here, those debates come down on the side of, broadly stated, "We have rules, damnit! We are not a banana republic!"

 

[divemedic]

Why haven't these detainees gone through a Military Tribunal?

Because military tribunals that are not inferior and do not answer to the SCOTUS are not constitutional. Read ArtIII section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The tribunals were not established by congress, and are not inferior courts.

Furthermore, the constitution allows access to our courts by foreign citizens. Read ArtIII, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

<snip>

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

[Shane Tuttle]

Because military tribunals that are not inferior and do not answer to the SCOTUS are not constitutional.

But, I thought military tribunals are a separate entity from federal courts. Also, (can't remember the term) a criminal act is one thing, but a heinous act (such as terrorism) is on another level. Am I clear as mud, or what?

I'm not being argumentative. I'm trying to learn by the seat of my pants and providing viewpoints that others have given (not necessarily here).

Does Article III necessarily pertain to wartime?

 

[gc70]

The tribunals were not established by congress, and are not inferior courts.

The Military Commissions Act of 2006 was enacted by Congress. Some pertinent provisions of the Act include:

Sec. 948b. Military commissions generally

(b) Authority for Military Commissions Under This Chapter— The President is authorized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter.

(f) Status of Commissions Under Common Article 3— A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.

As to Congressional authority to enact the Military Commissions Act:

The Constitution, Article 1, Section 8, Clause 14:

To make Rules for the Government and Regulation of the land and naval Forces;

 

[zukiphile]

MedicineBow, you're right. It wasn't my point.

You have come out and said what I was going to lead zukiphile to. You've come right out and said it, while I was gonna watch him squirm as we neared it.... Party pooper!

Eisentrager is not controlling in this matter. Guantanamo is de facto US soil, ....

No need for anyone to squirm over that. The prisoners in Eisentrager were kept on soil every bit as much under the control of the US as Guantanamo, so that can't distinguish it.

ALL US military installations, and everyone on them according to the logic of the majority, fall within the geographical jurisdiction of the SCOTUS even when other remedies have not been exhausted. That is not consistent with precedent.

Treaties do not trump the Constitution. If the power is not there, no treaty can create it. If there are certain protected rights, no treaty can abrogate them. No international law can trump the sovereignty of the US nor the Supremacy of the Constitution itself.

Article VI , paragraph 2, the supremacy clause, provides "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby. . . ."

I didn't include that to make you squirm, but to let you know what the COTUS actually said on that point.

The Executive nor the Congress shall defy the Constitutional limits as defined by the Court (Marbury v. Madison).

That misses an important part of Marbury, namely that matters entrusted to the other branches, such as codification of HC, are not within the jurisdiction of the court. Some matters are not properly before the court for any number of reasons.

Are we a nation under rule of law or under an arbitrary and capricious tyranny?

That, my friends, is what this is all about.

In a sense I agree. A court not constrained by precedent, or even one that circumvents that precedent to get to a conclusion it prefers, sets itself up to exercise its newly usurped authority capriciously.

I think the "combatants" shouldn't be allowed to be tried in civilian court AT ALL. I think it will open up floodgates to doom. My point of argument is that the Geneva Convention doesn't apply to these detainees. They don't claim to represent a specific country. They are not in uniform. They don't follow the rules of combat under the Geneva Convention. Therefore, I think our military should take care of the matter...and yes, even if Bush is the Commander in Chief. Just because some people don't like him doesn't necessarily mean you change the rules of the game.

Where am I wrong? As you can tell, I need quite the education in this department.

I don't concur in your last point. I think that your summary is lucidly stated.

The point of bringing up some of the legal history of habeas corpus isn't to muddle the issue for laymen, but to demonstrate that yours is the conventional view and that the SCOTUS has largely disregarded even its own recent convention and reached a novel result.

 

[divemedic]

I stand corrected on the creation of the tribunals, but the people being tried are not part of the land or naval forces, so Art 1 Sec 8 does not apply.

Even under a tribunal, you still have the right to a jury trial.

 

[Shane Tuttle]

Even under a tribunal, you still have the right to a jury trial.

I'm assuming the detainees committed an act of war, not robbing a bank. If this is the case and we follow suit, where is the dividing line? Under a tribunal, don't you still receive a jury trial?

This is a far fetched scenario but it's the best I can come up with at the moment:

What if there was a person that committed an act of war upon us located in Afghanistan. During the act, our military captured him on the run. We bring him to Gitmo for detention and interrogation. Little by little, he provides necessary information over a long period of time. In what way do we deal with this individual? Let him have his day in federal court? Return him to Afghani authorities for them to provide court proceedings?

I think there's more questions to be answered before I should expect an anwser. Are we truly at war in an official capacity? Does the Geneva Convention apply to this individual? We all have our own viewpoints on these items. I think the "war on terror" should have been more clearly stated as "declaration of war on islamofacist groups" that act on their desires. Think whatever they want. Talk all they want. But, if they act, we do. I don't see the Geneva Convention applies to them as my statements in previous posts. So that's why I've come to reason that military tribunals are in order especially in a time of war.

 

[zukiphile]

...but the people being tried are not part of the land or naval forces, so Art 1 Sec 8 does not apply.

The question was what authorised Congress to establish military tribunals and the answer was that clause 14 of the above granted that authority to Congress. It wouldn't make sense for the COTUS to grant authority to those being tried.

Even under a tribunal, you still have the right to a jury trial.

If you are charged with a violation of the UCMJ perhaps. If you are a prisoner having a status review hearing, no. Just as an aside, it is a geneva violation to try a POW for any crime.

 

[divemedic]

If you are charged with a violation of the UCMJ perhaps.

So are you saying that anyone who has violated the UCMJ, even if they are not a member of the land or naval forces, is not protected by the right to habeas? Or is not to be provided a trial by jury?

 

[zukiphile]

So are you saying that anyone who has violated the UCMJ, even if they are not a member of the land or naval forces, is not protected by the right to habeas? Or is not to be provided a trial by jury?

I am asserting neither, but note that members of the armed services lack any number of civil rights.

 

[gc70]

Treaties do not trump the Constitution. If the power is not there, no treaty can create it. If there are certain protected rights, no treaty can abrogate them. No international law can trump the sovereignty of the US nor the Supremacy of the Constitution itself.

Article VI , paragraph 2, the supremacy clause, provides "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby. . . ."

Actually, Article VI, Clause 2 is slightly longer, containing language to resolve this difference of opinion.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause simply states the truism that the power of the federal government trumps the state governments. Joseph Story summarized the concept in his Commentaries on the Constitution: "The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme."

Treaties are included in the Supremacy Clause because (per Story) "they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws."

The concept that treaties can violate the Constitution is inaccurate. Both Joseph Story and St. George Tucker (in Blackstone's Commentaries) noted that the Supremacy Clause is only effective for constitutional laws and treaties. Story wrote "It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution" and Tucker wrote "a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void."

The Supreme Court has stated that treaties that violate the Constitution may be held void, although no specific treaty has apparently ever been judged unconstitutional.

“The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853).

“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871).

Thus, the Constitution establishes a hierarchy of authority:
- the Constitution of the United States
--- laws and treaties of the United States
----- the constitutions and laws of the various states

 

[zukiphile]

Thanks, GC, that's very well laid out.

The danger often noted is that there is much that would be undesirable, but not contrary to the COTUS. The Rome accord would subject federal officals to prosecution by international courts, a sort of universal jurisdiction that would compromise US sovereignty to some degree, but would itself not violate the COTUS. Even the lack of protection against double jeopardy and hearsay built into the accord would arguably not violate the COTUS which does not contemplate a court in Brussels.

Similarly, the congressional ability to declare war would not rescue the US from breaching its treaty obligations if it were to declare war in a manner prohibited by treaty. While I am not an enthusiast for UN authority in many instances, our obligations factor into the remarkable fact that we've not declared war for well over six decades.

As a result, an understanding of Art I sec 9 that implies the requirement of a formal declaration of war in support of any limitation is dubious.

 

[Musketeer]

I contest that this was not a situation the SCOTUS should have been involved in. It should have been outside the jurisdiction of them entirely. Just because something is outside the SCOTUS's jurisdiction does not make it right though. We the people can institute change through the ballot box and if the situation is disapproved of strongly enough by enough Americans those who followed that path can be removed or legislation written to change the situation.

Every problem does not need to be solved by the SCOTUS.

 

[divemedic]

So if a person is held in a prison that is not in the actual United States, it is beyond SCOTUS jurisdiction? Gitmo isn't the only place. What about Guam, Puerto Rico, the Virgin Islands, and others? If a prison is built there, do the people there have no Constitutional rights?

 

[Musketeer]

So if a person is held in a prison that is not in the actual United States, it is beyond SCOTUS jurisdiction? Gitmo isn't the only place. What about Guam, Puerto Rico, the Virgin Islands, and others? If a prison is built there, do the people there have no Constitutional rights?

If they are not US citizens and it is not in the US then no, the SCOTUS does not have jurisdiction. That seems to have been decided unanimously 40 years ago.

Again, you do not have to like it and can force a change through legislation or elections. The bottom line is, I believe after looking through this mess, that this is NOT a problem for the SCOTUS. It is a problem for the Executive and Legislative branches to address within the framework of the COTUS. If you want to give those people COTUS rights then get legislation passed to do so.

It is oh so much easier though to get the Judiciary to make judgments which look to go beyond their oaths as they have no accountability and can do as they please.