In a decision on Wednesday, U.S. District Judge James Robertson ruled in support of the recently passed Military Commissions Act declared that detainees at the military's Guantanamo Bay facility are not entitled to challenge their imprisonment in the normal United States court system, but must go through the process outlined in the MCA.
Robertson is the same judge who previously ruled in the Hamdan case that because there was no established procedure for handling the trials of unlawful enemy combatants who lacked any standing as prisoners of war or as US citizens, Hamdan would either have to be tried in a regular court or that Congress would need to write a law defining how captured terrorists should be dealt with. Congress passed the Military Commissions Act to establish those procedures and in his ruling Robertson confirms that it meets the requirements which he felt were needed to provide appropriate methods for the Guantanamo detainees and other unlawful enemy combatants.
Robertson's ruling came as a surprise to many, who had expected him to stand firm against the MCA because of his own background as a civil rights lawyer and a Clinton appointee. He also apparently gave little weight to opposing briefs filed by libertarians and civil rights groups on both the right and left who believe that the basic rights expressed in the Constitution ought not to be restricted only to U.S. citizens.
The Hamdan case is only the first of several challenges to the MCA. The case of Ali Saleh Kahlah al-Marri is expected to be heard in the next session of the Supreme Court. Al-Marri is a suspected al Qaeda sleeper agent who was arrested inside the US as a legal resident alien. His case is special because he is the first person the Military Commissions Act has been applied to who was not captured outside the United States as an unlawful enemy combatant. His suit tests the viability of the portions of the MCA which allow terrorist suspects operating within the United States to be dealt with outside of the normal justice system.
Article comments
— go to most recent comments1 - handyguy
The scarifying thing about the MCA and other related efforts by the Bush administration is that the military and/or the government decides who to label "enemy combatant." I'm not comfortable taking their word for it.
...Just look at how many of the Guantanamo inmates have been released [after years in captivity] with little or no explanation either for their being held or their being let go. [And only a tiny percentage of the rest face specific charges even now.]
Yes, we want to be protected from real threats. But do we really want the US to adopt police-state tactics and just shrug off false arrests?
2 - Dave Nalle
The point which this case highlights is that the procedures and rights we treasure here in the US as US citizens do NOT necessarily apply to those captured overseas or who are not US citizens. The puzzling thing about the furor over this is that during WWI and WW2 and previous wars we captured lots of enemy combatants and spies and saboteurs, some in uniform and some out of uniform, and they were tried and dealt with entirely outside of the civilian US legal system and no one batted an eye. Yet today cases which are essentially identical are a huge issue. The only cause I can see for the change is political opportunism.
Dave
3 - handyguy
"Dealing with" people who really and truly are terrorists and enemy soldiers is one thing. You don't address the very likely possibility that a lot of these men are innocent, maybe not angels but not guilty of serious offenses, just 'in the wrong place at the wrong time.' The excellent movie The Road to Guantanamo, partly documentary interviews and partly dramatic recreations, is a very disturbing and moving exploration of this situation.
4 - Dave Nalle
Handy, whether they're innocent or not, they still aren't US citizens and therefore they are not subject to the protections of the US Constitution. They are also not uniformed enemy soldiers and thus not subject to the protections of the geneva convention.
However they ARE human beings, and the MCA affords them basic rights to a fair trial with evidence and a defense and a right of appeal. That system ought to be sufficient to determine guilt or innocence and get them released or punished as appropriate.
Dave
5 - STM
I would like to see the Australian Government negotiate to bring home from Guantanamo David Hicks, who was caught in Afghanistan - the same way the British talked the US into letting their nationals go back to Britain.
As much as Hicks might be a goose, he is still entitled to the protection of Australian law in our view, rather than take his chances in a US kangaroo court trial at a Military Commission.
Whatever acts of stupidity he's committed, he's probably paid for them by now and then some, considering he was caught in 2001. There is no evidence he ever fired a shot at a Coalition soldier.
In truth, I don't care whether he did or not in as much as it relates to his imprisonment, as the bottom line is that as an Australian citizen not being tried in a foreign country for a crime committed in that country, he deserves the right to be treated under the writ of Habeas Corpus, which is supposed to form the cornerstone of our criminal justice systems but which now seems to have been thrown out of the window by George Bush.
It's a disgrace, really ... and this is the view of someone who supports standing up to terrorists. It's a joke how these commissions have come about.
What about justice being seen to be done as well as done? So far, neither has happened.
6 - STM
His US-appointed lawyer, BTW, is a serving US Marine who has had the balls to stand up to his superiors in terms of how bad an idea this all is.
He has travelled to Australia to speak publicly about why Hicks should be allowed to come home, and how badly he has been treated.
If your own people are saying this, a US Marine no less, my guess is things are pretty grim down there in Guantanamo.
7 - Bliffle
Traditionally, non-uniformed enemy combatants have been dealt with summarily in the field, often by summary execution. Remember that famous scene in old war movies when The Commander tells a Special Missions guy: "if you're captured we can't acknowledge who you are and you will probably be executed"?
But there are some problems in the current situation: (1) we haven't actually declared war against, say, Saddams Iraqi army, (2) nobody knows what the official terrorist uniform looks like.
It's we, or the Bush administration, who have introduced the legal doubt and uncertainty.
8 - Dave Nalle
Bliffle, terrorists by definition cannot be lawful enemy combatants. And the courts have already ruled the AUMF to be the legal equivalent of a declaration of war. Captured uniformed Iraqi military have already been dealt with and either freed or turned over to the Iraqi government.
As for the quality of legal treatment which Hicks and others are getting, I have to point out that the MCA has substantially improved the situation. It provides a system of law which is better than the current civil law for terrorists in the UK or Australia where terrorists can be held without being informed of the charges against them virtually indefinitely. It's also a better legal system than the system available to even non terrorists in countries like France and Span and even in the US state of Louisiana because it at least allows a legal defense and an appeal to the US court system.
Dave
9 - STM
Dave said: "It provides a system of law which is better than the current civil law for terrorists in the UK or Australia where terrorists can be held without being informed of the charges against them virtually indefinitely."
Yes, except they're not. Which is not the case in Guantanamo Bay, where it does seem they are being held indefinitely.
I can't think of one case here in Australia where anyone's been arrested on terrorism charges where they haven't been either charged quickly and put before the courts, or released.
Don't bullshit about the Military Commissions.
I would rather be arrested and charged as a terrorist in Australia and tried before the courts here than held for years in Guantanamo and tried before what is effectively a kangaroo court.
10 - Bliffle
Dave: "...the courts have already ruled the AUMF to be the legal equivalent of a declaration of war."
Which, of course, is testimony to the ambiguity of the AUMF. One suspects that the ambiguity was an intentional component of the AUMF, so as to be able to declare war without Declaring War. The admin knew it would appeal to the cowardly streak in congresscritters.
I suspect that the AUMF is viewed as "the equivalent of war" when that suits the admin, and not otherwise, and that they will be backed by the Loyal Royal Courts.
11 - Franco
2 " Dave Nalle
Well said.
The only cause I can see for the change is political opportunism.
Would political opportunim include SWP efforts at anit-war US anything?
Dave
12 - Franco
#9 " STM
Can you help me understand what you mean by saying "kangaroo court" and exactly how that could negitivly effect the Hicks case.
13 - Dave Nalle
Franco, I wasn't specifically thinking of the SWP, but it's certainly part of the faction in this country which wants to make a political issue out of this. Some would argue that it's the hidden hand behind a lot of what goes on.
As for kangaroo courts, it seems STM has a very low opinion of the US Military, which seems inconsistent with his favorable comments on the Marine JAG advocate he mentioned earlier.
Dave
14 - Comrade O'Brien
Attention Comrade,
Please visit Ministry of Love to learn about our creative protest of the Military Commisisons Act.
Regards,
O' Brien
15 - Mohjho
I don't think that the framers of our Constitution ever imagined that our government would ever go to another country and round up people of still another country in order to hold them for years for interrogations or send them off to yet another county to be torchered.
I guess they missed your "point", and so did not think to address what rights other citizens have when detained by our federal government. Maybe its time we address this development and commit to forming rules and laws that the citizens of the this country agree represent our values and common sense and not leave it to the political whims of a politically incompetent and opportunistic president.
16 - D'oh
So much for the part about "all Men are Created equal"
Aren't Iraqis men as well?
Obviously not , according to the MCA.
17 - Dave Nalle
I don't think that the framers of our Constitution ever imagined that our government would ever go to another country and round up people of still another country in order to hold them for years for interrogations or send them off to yet another county to be torchered.
Is being "tochered" when you get tortured with a torch?
But our founding fathers were certainly aware of these issues. They had to deal with problems with traitors and terrorists prior to the framing of the Constitution in the aftermath of the war for independence. While the broad wording of the Declaration of Independence - which has nothing to do with the actual formation of the government or our laws - includes 'all men', the wording of the Constitution specifically does not.
I guess they missed your "point", and so did not think to address what rights other citizens have when detained by our federal government.
They deliberately didn't address this point, leaving such matters to military custom and international law, which even in the 18th century had clearcut procedures for dealing with terrorists and illegal enemy combatants.
Maybe its time we address this development and commit to forming rules and laws that the citizens of the this country agree represent our values and common sense and not leave it to the political whims of a politically incompetent and opportunistic president.
That sounds good to me, but in the meantime, we have the MCA which was written to apply a reasonable amount of our values while preserving some security and recognizing the requirements of international law and the Geneva Convention. Seems to me that's a step forward. We've never had such procedures delineated this clearly before.
Aren't Iraqis men as well?
Obviously not , according to the MCA.
The MCA affords them the same rights as any other men who are not US Citizens. The basic rights under the constitution don't actually include the right not to be arrested and tried for your crimes.
Dave
18 - handyguy
Still not really answered here:
Why shouldn't it disturb us that our government has almost certainly falsely arrested a large number of people and held them without charges for years? Apparently, for some, the fact that a few 'real' enemies [although far from proven so as of yet] may have been swept up along with all the innocent men justifies the entire action.
I don't just disagree. I am outraged and ashamed by it.
Guantanamo should be closed. Even Tony Blair has said so. It's an abomination. It gives propagandists who want to paint us as the world's most dangerous bullies plenty of ammunition.
The MCA is just a bandaid on a shrapnel wound, a pathetic attempt to rewrite the law before the courts tear the Bush administration's travesty of justice apart. Which, if there is any honor left in our system, will still happen, despite the setback this recent ruling gives.
19 - D'oh
Dave states, "The MCA affords them the same rights as any other men who are not US Citizens. The basic rights under the constitution don't actually include the right not to be arrested and tried for your crimes."
Two words for you Dave, habeus corpus.
You can have "due process" tossed in there as well for free.
You're welcome.
20 - STM
Franco asked (and Dave take note): "Can you help me understand what you mean by saying "kangaroo court" and exactly how that could negitivly effect the Hicks case."
Although I would be worried if I were Hicks should I be tried in the US under civil law given the bunkum that surrounds the allegations against some of these detainees, at least he would be entitled to the full protections that US law offers.
He'd also understand it, as American criminal law is virtually identical to ours, except for the local nuances. Interestingly, however, the Australian Government says he has broken no laws in or of Australia and thus can't be tried here.
His Marine defence lawyer has been trying to put a case to the Australian Government to have him sent home at their behest or to push for his trial under the protections of US law.
Even he believes Hicks has been treated unfairly, as he has been held in detention without trial for what, nearly six years, and may also spend a considerably longer period locked up after a trial before a Military Commission.
Whatever stupidity Hicks is guilty of, and as I said before, there is no evidence he ever engaged in any fighting with coalition forces in Afghanistan (he had, however, fought with muslim troops in Bosnia).
In my view, he has already paid his debt. It is a real issue here and has polarised thinking on the Military Commissions and the US conduct of its "war on terrorism" (which I believe to be a real war, by the way, but having nothing to do with the invasion of Iraq).
But the bottom line is this, Franco: Although Dave says people arrested on terror-related charges here can be held indefinitely, they are not. They are either charged and put before the courts quickly, or released. The law contains that clause in case there is a major attack or a major plot on home soil and is designed for the police to be given time to investigate.
However, given we have a common-law constitution, the law demands on a higher level that all accused be treated according to the Writ of Habeus Corpus - a speedy trial, or release. As I keep saying, justice not only needs to be done, it must be seen to be done.
In Guantanamo Bay, clearly neither of these things are taking place. The US is making itself very unpopular here among a fair chunk of the population just on this one issue alone. Those who don't like it believe it to be another example of American arrogance, and it's always a worry when you're pissing off one of the few real friends you have left, IMO.
21 - Franco
#16 " D'oh
So much for the part about "all Men are Created equal"
Aren't Iraqis men as well?
Obviously not , according to the MCA.
The point attempting to be made in this post is a fallacy. It is taken out of context form the Declaration of Independence and then using the narrowed scope and content of its full meaning so to be used to support a faiths claim. The fallacy comes in play by leaving out everything that matters in what all men are Created equal for.
So there is no misunderstanding, this is exactly what was left out following “all men are created equal”.
that they are endowed by their Creator with certain unalienable Rights,
For those needing a clear definition of “unalienable” - Not to be separated, given away, or taken away. So our Creator has gave us rights the can not to be separated, given away, or taken away. Then it goes on to state some of this unalienable Rights.
that among these are Life, Liberty and the Pursuit of Happiness.
Now it seems reasonable to believer that the US soldiers on the ground facing attack by Iraqi men now incarcerated that this poster refers to, were captured instead of being shot by US troops. The need to kill or capture these Iraqi men was due and necessary clearly because this Iraqi men were attempting to take away the Life, Liberty and the Pursuit of Happiness, not only of the US solders who risked their lives to capture them, but other Iraqis as well.
If instead the US solders just shot them, well, then there wouldn’t be anything to grip about.
Now the issue of Iraqi detainees and the MCA is a good topic of discussion, but not in the fallacy format used concerning the Declaration of Independence.
BANG, BANG, and BANG, HAMMER, HAMMER, and HAMMER. BEAT ON THE TWISTED UNITED STATES FOR ALL ITS EVILS AND VIOLATIONS TO HUMAN RIGHTS.
22 - STM
Come on Franco, no one's saying these guys shouldn't have been arrested.
What's at issue here is the cornerstone of our respective criminal justice systems: both adhere to The Great Writ - the writ of Habeas Corpus.
Most of them have already languished for up to six years in Guantanamo without any formal charges being laid against them, and any indication of when they will be tried or indeed whether they are even going to get what is regarded in the US and elsewhere as a fair trial (and I'm talking about other countries with the same kind of legal systems).
The fact is, if the US continues to tell the world that is the upholder of freedom, democracy and genuine human rights, it needs to act that way in every thing it does.
Doing what has been done in Guantanamo gives no indication of that, and if people in my country and YOURS think that's a crock, take it on the chin mate.
There's a reason why they think it's a crock. The reason is: it is a f.cking crock.
23 - D'oh
Ok Franco, here's the thing, I did quote the phrase and not the entirety of the sentence because I had thought everyone knew the quote, not to try and be deceptive.
So why don't we agree to ignore one another, since you can't seem to be able to help projecting and attempted mind reading so as to place what you believe into what I have actually written?
I'll give an example why no reasonable discussion between us is possible, you write , "The need to kill or capture these Iraqi men was due and necessary clearly because this Iraqi men were attempting to take away the Life, Liberty and the Pursuit of Happiness, not only of the US solders who risked their lives to capture them, but other Iraqis as well."
Now , there has been NO PROOF or evidence presented against ANY of these people yet. THAT is the whole fucking point, if they are guilty of anything, charge them, try them and lock them up.
Such was the gist of what I was saying about "all Men", that no matter who you are, what you have done or where you come from... no matter race, creed, color, religion, sexual preference or hair color.. a human being deserves some basic human rights.
Like the right to face their accuser, be charged for the crime they are being held for, due process and all the other legal bits that some find inconvenient.
Failure to do so removes any semblance of a moral or ethical "high ground" from which to justify actions taken.
As for this crock of shit, you say "BANG, BANG, and BANG, HAMMER, HAMMER, and HAMMER. BEAT ON THE TWISTED UNITED STATES FOR ALL ITS EVILS AND VIOLATIONS TO HUMAN RIGHTS."
Thus confusing criticism of Administration policies with some kind of hatred for my country.
Fuck that,I have honorably served my country in the military, and voted in every election since I was 18.
So take your empty rhetoric, piss poor ability to utilize any kind of logic, and febrile attempts at insult, fold it all until there's nothing but corners and shove them directly up your colon since it appears to be the shortest route to what passes for your brain.
I'll just ignore you, feel free to return the courtesy.
24 - Franco
#22 " STM
Thank you for posting what you did in this post. It helped me understand more of your true feelings about really why your panties are all in a bunch.
Every thing I posted concerning the DOI and its miss use was clear and why. What you failed to obviously read that I addressed at the bottom of my post, which addressed the same spirit for the Hicks case as all the Iraqi’s which states “Now the issue of Iraqi detainees and the MCA is a good topic of discussion”. Meaning that the need for discussing that the detainees need to be both processed and moved on to trial or released is the right thing to be discussing.
Now I was in the process of writing you a post in response to our post #20 when your post #22 arrived. I will go ahead and post it anyway just to let you know where I am really coming from.
#20 " STM
Thanks for your reply.
I did some Internet research on David Hicks and read this site, and this site. Its has helped me understand more of what is legally and emotionally going on.
So fare it appears clear that the US has described David Hicks as a terrorist who was part of the al-Qai'da network. The Australian Government made the allegation that Hicks was not just a Taliban fighter, he was also a member of al-Qai'da. These allegations by both governments still have to be proven in court. Which court and way brings us to your whole point.
Aside from the writ of Habeas Corpus, which I agree with you on, I am still perplexed about the concerns with the MCA. What specific rights would Hicks be denied by the MCA compared to a US or Australian criminal court.
If it proceeds quickly under MCA will both the Australia and US governments expose their evidence to only the MCA or will it be made public. The other dilemma that is now creeping into this is will the Australian’s now angry put this matter to rest if Hicks is in fact charged and proven guiltily of what both government have alleged and receives a stiff sentence.
Now your anger for the long delay in addressing Hicks case is warranted. I am sensing from you though that what ever court he were to be tried and if found guilty of such charges, whether a US or Australian court, that you think he has served his time for what ever he could have done. And this if it is the MCA you will always remain in suspicion of its findings.
I do not understand how you can make that judgement until all the evidence is in and proven or dismissed by whatever court. But it appears your have already made up your mind that if it be a MCA court proceeding that you will not accept the findings. That is what I am trying to understand.
25 - Dave Nalle
Two words for you Dave, habeus corpus.
You can have "due process" tossed in there as well for free.
Sorry, Habeas Corups is in the Constitution, it's not one of the basic rights of man, though it's not an unreasonable extension of them. It doesn't apply universally to all humanity. Hell, Habeas Corpus isn't even recognized in the UN Charter on Human Rights.
Dave