WASHINGTON - The Supreme Court ruled Monday that prisoners seized as potential terrorists and held for more than two years in Cuba may challenge their captivity in American courts, a defeat for President Bush (news - web sites) in one of the first major cases arising from the Sept. 11 attacks.
The 6-to-3 ruling passes no judgment on the guilt or innocence of the approximately 600 foreign-born men held in the Navy-run prison camp at Guantanamo Bay, Cuba. The justices also did not address the broad issues of human rights and civil liberties surrounding the prisoners’ seizure and detention without trial or guaranteed access to a lawyer.
I say its about time. Camp -xray, Abu gharib and this war on terrorism has shown how conviniently the rights of POWs and other innocent civilians (held under various laws enacted as a consequence of this war against terrorism) have been systematically violated.
Article 3 of the Geneva convention , infact common to all the four Geneva conventions and the relavant rules of customary international humanitarian law applies to all these persons detained since June 2002. If they have comitted any crime, they are entitled to the fair trial gurantees under the domestic as well as international law.
I see the glass half empty.. The court just rolled over and gave the President powers of an Emperor.. he can pick a person and thrown them in the gulag without rhyme or reason just on the basis of suspicion.
The long cherished "innocent until proven guilty" as an integral part of American freedom was lost somewhere in this ruling.
Minerva, can you let us know when it has been decided. I think there are two cases here. The americans and the rest. If there are american cotizens then they should get due process. If theya re foreign citizens then they don;t get the same considerations. Screw them idiots...
Having gone over this in some detail, I am not quite sure what can be gained here. There are only a couple of things that could be challenged.
First, the Pentagon alleges that the detainees are "Unlawful Combatants". This is a specific category in the Geneva Conventions. This category refers to those who come into a country and fight, those who do not wear proper uniforms, and people who violate the rules of war, such as by shooting from behind civilians. If the detainee does not agree, he can challenge his status as an "enemy combatant" in a "competant tribunal". I do not believe that US courts would qualify for this.
Second, if people are being held based on a "Crime", (as opposed to someone picked up on a battlefield), then they could argue that they should be entitled to a trial, but in these cases a military tribunal is adequate for war time crimes, and US courts would not play into the equation.
Third, they could argue that they have rights as citizens. This would only be true for US detainees.
Because so many of the options are not in the jurisdiction of the US courts, I am not sure what kind of suit a detainees attorney might bring? I would think this is an important victory in terms of providing access to the courts, but there is not indication as to what type of suit might be brought, or what the merits of the case might be... This seems to be a very small and limited victory.
Donald Rumsfield said that the Geneva conventions are a little out of date (when the Talibans were detained) for the world we face and he is the one now saying that they should be respected in full (just because AMerican soldiers are being held captive and shown on TV)
^ what is so hard to understand in that statement? It doesn;t mean do away with the geneva conventions but alter them to either include the terrorists as legal fighting forces, like Al Qaida, LeT, JeM, thereby legitimizing terrorism or keep them outside the fold of all that is civilized. Exactly where these terrorists belong.
Mat, now who gets to decide whether the people who are detained under the pretext of war against terrorism as well as those alleged Al-Qaida agents were actually 'terrorists'.
I understand that there is not much currently under International law that specifically deals with this new phenomena 'war against terrorism and terrorists' and there is a lot to be done in this regard. But when we talk keeping in view the specific context, lets say Afghanistan then we need to realize that those were people up in arms against U.S; thereyby that label of' unlawful combatants' can also be challenged because they were a party to that armed conflict.
Anyways, maybe Ohioguy can shed more light on this issue.
Yes, you are right that other groups as such cannot be characterized as 'parties' to a conflict, hence the gap with regard to their legal status.
Minerva, when you read the Geneva Conventions, it becomes clear that they were written to describe a taditional war. Two armies in natty uniforms, facing off in all out warfare in a well defined battlefield.
The Conventions did not envision jihadi's rushing to Afghanistan or Iraq, without the permission of their home government. (these are actually described as mercenaries, who are entitled to NO protections under the Geneva conventions.) These jihadis never wear uniforms, which endangers civilians, a cardinal issue in the conventions.
This is what Rumsfeld was refering to, that what is being encountered on the battlefield is not welll described in the conventions.
OGuy, thanks about the info regarding the unlawful combatants.Thats exactly what I thought about. My reasoning might be flawed but I would clarify it soon. Its not argument for the sake of argument but I am trying to see all aspects of the situation while at the same time bearing in mind the inadequacies and gaps that are confronting the international community.
Minerva, the dudes at Gitmo are enemy combatants and thus Geneva comventions dont apply to them. They were never given the status of POWs for this very reason.
Anyway the LA Times is reporting that US govt it now thinking about moving hundreds of these guys to military prisons on mainland. They are now facing hundreds of lawsuits to be filed by the attorneys of these guys if they guys are not given hearings in US Courts. Supreme Court’s decision came as a surprise for many.
A detailed discussion of the Geneva Conventions has taken place on Gupshup, here in WA. Please reference a thread entitled, "First Batch of Detainees from Afghanistan departs!" ((I don't know how to reference it by thread id). This gives a lot of direct references to the conventions, and discusses a lot of the critical issues, pro and con.
OG thanks, i I know that already. :-) As I said my 'faulty' premise was that since they were 'once' heading a sovereign government in Afghanistan ( the Talibans)and fought to defend their state against US intervention, hence they should be classified as a legitimate party and given due status. This was reason enough to apply the laws of war.
I wasn't specifically thinking of them as 'terrorists'. Atlease, those detained prior to 2002 should not be referred to as terrorists.
But again as you mentioned, the flip side (which also made my argument redundant) was that they did not have a proper command and organisational structure and it was difficult to distinguish them from the civilians which initself could be considered a violation.
Having said that, even if they are 'unlawful' belligerents they are still guranteed the fair trial gurantees (weren'they entitled to that??) under the domestic as well as the international law (I am not saying the law of armed conflict).
Anyways, now we can see some interesting developments. :)
Let's take the simplest example, a foreign fighter picked up on the battlefield of Afghanistan. Because he was picked up on a battlefield, the Laws of War have primacy. He does not have to be charged with anything. He is simply held until the conflict is over. He is not subject to international or domestic law, and if so they are very secondary. An example of this is that a POW cannot be charged with murder under domestic law, 'cause you would have to charge nearly every one of them.... As I understand most of the Afghan nationals have been repatriated. Any Afghan WOULD have to be charged, or returned to the new sovereign government.
The only legal arguement you could have is their status under the Geneva conventions. It would be awfully hard for a Saudi national to argue that he should be considered part of a militia, indeed he might be risking a determination that he was really a mercenary, which waives all Geneva rights.
As long as there is conflict in Afghanistan these guys can be held. If it lasts 20 years they can be held 20 years. The US is trying to make the point that international Jihad is not a protected activity under the Genva conventions, and that the Ummah is not a signatory to the Geneva Conventions!
