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Court To Bush: Gitmo Trials Illegal

By June 29, 2006

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Updated 12:45 5.30 pm Pacific
The Supreme Court, in a major setback for the Bush Administration, ruled (5-3) that military trials set up at Guantanamo Bay violate both US law and the Geneva Conventions. In other words, in Hamdan v Rumsfeld (pdf), the Court said Geneva Conventions apply -- something that the Administration has denied.

In response, President Bush says he'll work with Congress to figure out what to do with the 450 or so detainees in Cuba.

The Financial Times quotes Martin Lederman, professor of law at Georgetown Law Center and a former Justice department lawyer:

This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as water-boarding and hypothermia [and others] violate the War Crimes Act [because violations of Common Article 3 are deemed war crimes].

Voice of America reports that "Europe's premier human rights watchdog" called the decision "victory for justice in the campaign against error, ineptitude and hypocrisy."

This is a good time to point to two reports about Gitmo that have received zero attention in the daily press.

Only A Handful Charged
At the time of the suicides earlier this month, the New York Times buried this fact: "only 10 of the roughly 465 men held at Guantanamo have been charged before military tribunals and ... recently released documents indicate that many have never been accused even in administrative proceedings of belonging to al Qaeda or attacking the United States." (tip)

Only A Handful Active Terrorists
And in February -- four months ago -- Columbia Journalism Review Daily reported that two academic studies analyzed the almost 500 detainees at Gitmo, using Court and Administration data. One study deduces that as many as 80 percent of the detainees have nothing to do with terrorism. The second shows that "60 percent are detained merely because they are 'associated with' a group or groups the government asserts are terrorist organizations" and only eight percent "detained because they are deemed 'fighters for' [a terrorist organization]."

[Moreover, most of the prisoners] were turned over to the military in exchange for cash. Look at this flier, dropped in Afghanistan at the time of the sweeps, and included in the study: "Get wealth and power beyond your dreams ... You can receive millions of dollars helping the anti-Taliban forces catch al Qaeda and Taliban murderers. This is enough money to take care of your family, your tribe, your village for the rest of your life. Pay for livestock and doctors and school books."

The Ruling
Writing for the majority, Justice Stevens systematically dismantled each argument presented by the Administration. He was joined by Justices Kennedy, Souter, Ginsberg and Breyer in reversing the judgment of the appeals Court, which had ruled that "Hamdan was not entitled to relief because the Geneva Conventions are not judicially enforceable" and that "Hamdan’s trial before the commission would violate neither the [Uniform Code of Military Justice] nor Armed Forces regulations implementing the Geneva Conventions."

He was joined by Justices Souter, Ginsberg and Breyer in noting that the Government had not charged Hamdan with an "offense . . . that by the law of war may be tried by military commission." Chief Justice Roberts was recused from the case as he had heard it in lower courts and had ruled in favor of the Government.

It is a lengthy and complex decision (185 pages) and rules directly on Constitutionally-mandated separation of powers between the legislative and executive branches. It also makes clear that simply being Commander-in-Chief is insufficient authority for what has happened at Guantanemo Bay for the last four years. Fall-out -- political and otherwise -- will follow. And the Court has placed Congress, not the President, at the center of that action.

Response
Writing for CBS, attorney Andrew Cohen reminds us that this is the second time in two years that the Supreme Court has applied brakes to the Executive Branch in its "war on terror." Cohen writes: "[the Court] declared that [the White House] alone does not get to redefine and expand the scope and authority of its constitutional powers under the guise of fighting an endless war against a murky enemy."

Practically, however, it has "little practical short-term impact on the lives of detainees even as it causes immediate ripples of angst and anger and action in certain circles of power."

Richard Samp of the Washington Legal Foundation -- which filed a brief in support of the Government -- agrees that there is "little practical significance" to the ruling. He continues:

[T]he Court merely held that the Uniform Code of Military Justice (UCMJ) requires war crimes trials held before a military tribunal to be conducted in accordance with the law of war, and that the Geneva Conventions are part of the law of war. So, the Guantanamo detainees will not be able to use the Geneva Conventions offensively unless and until the courts hold that the Conventions were intended to be privately enforceable.

Politicians have responded predictably. Sen. Lindsey Graham (R-SC) and Sen. Jon Kyl (R-AZ): "We are disappointed with the Supreme Court's decision. ... It is inappropriate to try terrorists in civilian courts. ... We intend to pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions."

Contrasted with Sen. Patrick Leahy (D-VT), a member of the Senate Judiciary Committee: "For five years, the Bush-Cheney administration has violated fundamental American values, tarnished our standing in the world and hindered the partnerships we need with our allies. This arrogance and incompetence have delayed and weakened the handling of the war on terror, not because of any coherent strategic view it had, but because of its stubborn unilateralism and dangerous theory of unfettered power."

For additional reading: Marty Lederman at the SCOTUS Blog has a quick analysis; Washington Post, Wonkette

Edited to add subheads, summary of ruling, and link to ruling overview. Edited to add blogosphere, press links. Edited to add VOA and Financial Times links, as well as additional response.

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