Of course, the one option which the administration is foolishly overlooking is putting the Guantanamo detainees on trial in US criminal courts. That would more than meet the criteria of the UCMJ and the Geneva Accords, under which they could be tried as terrorists rather than as legitimate combatants. As demonstrated in other cases, American juries would be unlikely to be terribly sympathetic, but it appears that the associated publicity and potential difficulty of presenting the cases in a regular court are more than the administration wants to take on.
Taken along with the 2004 decision from the Supreme Court which determined that the GITMO detainees could not be held indefinitely without trial, this ruling puts considerable pressure on the administration to go further in resolving the status of those still being held. Many detainees have already been returned to their home countries, where some immediately resumed their terrorist activities. Those who remain are likely the most dangerous of the lot, but they're a lot less dangerous to the United States if they're in a faraway country and that would at least be some progress. It might be a good idea to keep a few for show trials under US justice and just dump the rest at this point.
Article comments
— go to most recent comments1 - Joey
At first glance, I believe the Court decision defers the action back to Congress.
2 - Dave Nalle
Yes, that's essentially true, as I said in the third paragraph. The basis of the decision is that the courts were not properly convened because they had no legislative basis. They weren't 'regular' courts and were this extralegal. That's why the Senate is now writing legislation to establish the courts legally. You may have been mislead because I also pointed out ways to resolve the situation without creating a whole new legal system for them, which I think would be a better solution.
Dave
3 - Jet in Columbus
Nice job of preempting Dave-hat's off to you.
4 - Dave Nalle
Preeempting in what sense? This is pretty much a straight news story and I only wrote it because the story was a couple of days old and no one had posted on it.
Dave
5 - gonzo marx
well, i must say i am heartened that the court's Decision went this way, still a bit too close for comfort and way sketchy on some of the "outs" left available...
but hopeful
do note that the screaming by Scalia and the verbose 100% backing of dictatorial presidential Powers by Alito as well as the yes-man kookiness of Thomas was long predicted by yers truly...it was VERY good to see that Roberts recused himself properly...
all in all, we see the very Foundation of the written justifications for SO much of this Administration's bullshit overstepping of bounds un-checked and no thought of balance legal Opinions, courtesy of then WH counsel now Attorney General Gonzalez, getting shot to shit by SCOTUS
i know..that was a way convoluted sentance, i'll try and be clearer....
when Gonzalez was WH counsel he wrote a bunch of legal justifications on many topics...ranging from torture to extrodinairy rendition, to bypassing the Geneva Conventions, to "enemy combatants" even if they are citizens , not having constitutional Rights, to pre-emptive invasion, to warrantless wiretaps
most of those legal opinions were based on core assumptions present in the case discussed in this Article...
and those assumptions, and thus the legalistic logic chain of justifications based on those assumptions were just trashed by SCOTUS after NOT being even questioned by the Office that is supposed to do such things, the Justice Department (remember, that office is being run by the SAME guy who wrote those initial papers, Gonzalez)
so there IS still some Hope that our System will correct itself long enough to Survive this historical Test...
as i've said before...we can only participate with our Voices, as Citizens...hope for the Best, and work as our Conscience tells us until November...
objects in mirror are closer than they appear
Excelsior?
6 - Dave Nalle
Gonzo, I'm going to make this short and sweet. There were two ways they could rule on this. They could either say that military tribunals formed a legal basis for these courts or they could say they didn't. They made what I think many could only describe as a purely political decision and ruled that military tribunals were not legitimate enough courts to apply to GITMO detainees. IMO that's a pretty far out interpretation of the Geneva Accords and the UCMJ. Thomas and Scalia may have been ranting, but have you considered that it's just kind of possible that they were right?
As for the decision - which is basically no decision - all it will result in is the congress passing legislation creating a special court of trying terrorists, which is way more of a bullshit solution than trying them in military tribunals.
Dave
7 - Les Slater
This ruling is not just one of congressional authorization. It is also one of substance.
"Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.More importantly, the offense alleged is not triable by law-of-warmilitary commission. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respectto a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here."
8 - Dave Nalle
Les, it seems like that part of the ruling really applies only to Hamdan, not necessarily to the larger issue of GITMO detainees.
Dave
9 - gonzo marx
for comment #6....
i'll also try and keep it simple...
my Opinion of the Ruling is that SCOTUS did it's job and told POTUS that it can't just make shit up and try to justify it by the Congresional "Authorized Use of Military Force" bill
i also hold that this "justification" is the root of many WH policies whose legal papers were written by Gonzalez utilizing this postulate
we will see hwo it plays out over the rest of it as the cases come before SCOTUS
i also was just expressing pleasure that it appears the System is still working...checking and balancing the over reach by the Administration since neither the senate or congress are doing their jobs in that field
do not mistake me, i want the detainees to be tried and punished/released/whatever as due Process and the Law dictates
i just think this Ruling was a decent start in a more proper direction
Excelsior?
10 - Les Slater
Dave,
That is true, but I do not think Hamdan's case is so unique.
From your post:
"Those who remain are likely the most dangerous of the lot"
Which includes Hamdan? Where does that leave the U.S. legal or moral credibility?
Les
11 - Dave Nalle
I think Hamdan was a special case because of his direct, personal relationship with bin Laden. I doubt there is anyone else being held at GITMO who is there solely because he was a bin Laden employee.
Of the rest, those who were caught in armed but non-uniformed attacks on coalition forces should be the primary concern, and they are the one these courts are for.
Trying Hamdan for driving bin Laden's car is really kind of ridiculous when you think about it. There was no evidence that he himself engaged in any terrorist activity.
Dave
12 - Dave Nalle
i just think this Ruling was a decent start in a more proper direction
I'm glad you're confident, Gonzo. But I'm not convinced that it IS a start in the proper direction.
It seems to me that military tribunals based on military justice have a hell of a lot more precedent and legitimacy than some kangaroo court put together by custom legislation specifically for trying terrorists. To me that violates the spirit of the Geneva Accords WAY more than trying them in a military court.
Dave
13 - gonzo marx
one should not have the organization doing the capturing, prosecuting and adjucating...
see Nuremberg for precedent
as for who was caught doing what, we have no fucking clue...that's what a Trial is for and why seperating the three functions as i stated above is crucial
Excelsior?
14 - Dave Nalle
As a matter of principle you've got a fine point there, Gonzo. But that's not the issue that's raised in this ruling or by the Geneva Accords.
And at this point I really have to believe that someone has a clue what these people were doing when they were apprehended. If that were not the case, why have we set hundreds of them free?
Dave
15 - gonzo marx
why have we set hundreds free?
ummm...cuz they were considered harmless?
the Question you should be Asking is...why, if they were to be set free, did we have them detained with no due process in the first place?
i know..another fine point of Principle...but i'm silly like that
i am not as confident that many have a clue here, i do think that the vast majority are following orders, trying to do the best they can
as i think the SCOTUS is trying to do
Excelsior?
16 - Dave Nalle
ummm...cuz they were considered harmless?
Well of course, that's obvious. Not correct, apparently, but certainly the reasoning involved.
the Question you should be Asking is...why, if they were to be set free, did we have them detained with no due process in the first place?
Also pretty damned obvious. There is no established rule of due process for terrorists captured in a foreign country. It's a huge gray area and laziness or opportunism or a mixture of both resulted in dealing with them basically being neglected. I agree that they ought to have been dealt with faster, but in the absence of clear law on the subject you and I both know that bureaucrats will take the easy way out and ignore a problem.
Dave
17 - gonzo marx
#16 sez...
*It's a huge gray area and laziness or opportunism or a mixture of both resulted in dealing with them basically being neglected.*
Quoted for Truth
we are in complete agreement here...my Concern is the lack of Leadership from the top down...those who are Responsible and Accountable for such things dropped the ball...which you appear to agree with when you say...
*I agree that they ought to have been dealt with faster, but in the absence of clear law on the subject you and I both know that bureaucrats will take the easy way out and ignore a problem.*
so we now get to the Issue of competance...
a salty old UDT MasterChief once taught me that "prior planning prevents piss poor performance"
the way these events have played out in the last few years seems to indicate that those running the show have never learned that basic axiom
Excelsior?
18 - Dave Nalle
I acknowledge that a certain amount of cluelessness seems to be in play.
Here's my take on GITMO.
The military saw a bunch of bad guys and detained them. They then passed the problem to the administration which had no fucking idea what to do with them. Not having any idea what to do with them they decided to sit on them for the basic reason that if they were dangerous at least they could do no harm if they were at GITMO. Presumably there was the intention to deal with them eventually in some way, but that was 'hard work' and kind of got lost in the shuffle of more immediate problems.
I think 'out of sight, out of mind' describes the situation pretty well.
But, to be fair, the prisoners have NOT been abused despite all the claims from the left. A number of them ARE dangerous terrorists - though it would sure be nice to know which ones. And legally holding them indefinitely and the methods by which they should be tried really aren't defined properly under our law or the geneva convention, which puts some blame on our legislators for not getting off their asses way before this and establishing some clear guidelines for how they should be dealt with.
Frankly I don't care what the hell they do with the GITMO prisoners so long as it's relatively fair and SOMETHING gets done. Just sitting around on their thumbs as everyone involved has been doing is idiotic.
Dave
19 - gonzo marx
#18 sez..
*But, to be fair, the prisoners have NOT been abused despite all the claims from the left.*
show your Proof
and then sez...
*A number of them ARE dangerous terrorists - though it would sure be nice to know which ones. *
again show yer Proof, just cuz someone sez it's so don't make it so...been that way since the Magna Carta...
you keep trying to defend the indefensible, your Right of course...i'll stop trying to Reason with you...
here's a nice article from WaPo on the subject that might aid in clarity for those interested...
Excelsior?
[gonzo - live links please. It's easy, honest! [Comments Editor]
20 - Lumpy
Since some of them were recaught fighting for the taliban after we released them I think it's safe to say they were dangerous.
People who deny and try to misrepresent these real threats do us all shame. Raising questions aboit gitmo may serve your agenda but it does nothing to address the very real danger reresented by the worst among the prisoners.
Think about it. If the ones we thought were ok and released then joined the taliban then how much worse must the ones not released be?
21 - gonzo marx
good Point Lumpy...and why they should have been Investigated and tried in a legal Court BEFORE being administratively released
you'll get no Argument from me that some of those detained are the "bad guys" who should be welded into a cell for eternity
but ponder this for a moment, even if ONE of those folks were Innocent to begin with, then held with no trial for years...and released back home, might they not be slightly understood for fighting against those who wrongfully imprisoned them? would you not do so?
now, i have no idea if ANY f them are such Innocents, or whether every single one is a stone cold killer tha deserves to be locked away forever...
but i do know, and the SCOTUS appears to have decided the same, that those detained deserve basic human Rights to face their accusers and stand a fair trial for the charges against them
is THAT not part of the American way, and one of the things that gives the U.S. an ethical leg up against our Foe?
the Rule of Law, and civilized behavior are what set us apart from the Foe...and i don't think we shoudl toss that aside, or ever forget it...else we face the danger of becoming that which we Fight against...
just a Thought
Excelsior?
22 - Dave Nalle
*But, to be fair, the prisoners have NOT been abused despite all the claims from the left.*
show your Proof
Always a dangerous thing to ask me. You ought to know better by now.
Here's an article on the Newsweek retraction of the Koran abuse story.
Here's a link to a Al Qaeda Training Manual which details how prisoners are supposed to make false accusations against guards.
Here's a rather good article from National Review which documents lots of false stories about what's happened there.
and then sez...
*A number of them ARE dangerous terrorists - though it would sure be nice to know which ones. *
again show yer Proof, just cuz someone sez it's so don't make it so...been that way since the Magna Carta...
Let's see. Here are some details on six French GITMO detainees who are now on trial in France for their terrorist activities. The French are okay, right? They didn't invade Iraq - yet they still know a terrorist when they see one.
I also refer you to this Washington Post article on some of the released detainees who have been caught or killed fighting the US or engaging in terrorism.
And here's a PDF from the pentagon detailing the alleged crimes of some of those still being held. It also has a LOT of other relevant info about how GITMO is managed and how prisoners are treated.
Dave
23 - gonzo marx
i understand, and i appreciate the linkages...
as i stated, there is no doubt there are black hats being held there...but there is reasonable doubt that not all are as they are accused of being
that's what due Process is for
as for your bits about the abuse...you supply evidence but no proof...it is NOT possible one way or the other for the likes of you or i to find said proof...my concern comes from officially released information
things like , silly me, sideing with the Inquisition that waterboarding is torture...abuse at the very least...
even if everything is strictly by the book and above reproach, the sheer negative appearance brought about by the facility does our Cause in this Conflict no good at all when it comes ot "winning the hearts and minds"
and i do think all can Agree, that the ONLY way to "win" this debacle is to convince the average person involved that the true Enemy are those who would blow up innocent civilians, women and children...and to show them that that is the Tactic of the Foe...and that we are above that barbarism
just a Thought
Excelsior?
24 - Dave Nalle
I'll sign on for that last paragraph, but I'm still going to refrain from leaping to negative conclusions when there's evidence pointing both directions on issues like abuse.
As I've said before we need to separate the sheep from the goats and put the right people on trial or else dump them all in some third world hell hole and forget about it.
Dave
25 - RJ Elliott
"It might be a good idea to keep a few for show trials under US justice and just dump the rest at this point."
I strongly disagree.
Every single one of these bastards is a terrorist, or at the very least a terrorist-sympathizer. They should all be locked up for life, or killed.
If these soulless terror-mongers are allowed to be released, they will work for the rest of their lives towards an effort kill more American soldiers, marines, and civilians.
I do not weep for the hardships faced by Taliban totalitarians. I hope every single one of them dies in pain.