Judge Declares Military Tribunals . . .

[CaptnKirk]

Unconstitutional

From the BBC

A US judge has ruled that special military tribunals being used to try hundreds of detainees at Guantanamo Bay in Cuba are illegal.
Judge Joyce Hens Green said the tribunals denied the detainees their basic rights under the US constitution.

Her ruling, on claims filed by more than 50 terror suspects, is a blow to the Bush administration, which argues they have no constitutional rights.

But it conflicts with a ruling by another judge two weeks ago.

Judge Richard Leon dismissed a lawsuit filed by seven detainees. He backed the view that foreign nationals captured and detained outside the US had no recognisable constitutional rights.

He said it was up to the US Congress, not the courts, to decide the conditions of imprisonment.

Both lawsuits followed a ruling by the US Supreme Court last June that inmates did have the right to challenge their detention.

 

[conjur]

In her ruling, Judge Green said the Supreme Court made it clear that the prisoners had constitutional rights - which includes having the advice of a lawyer and a fair opportunity to confront the evidence against them - that lower courts should enforce.

She noted the widespread allegations that detainees were abused during interrogations and said this cast doubt over any confession made under such circumstances.

I'd like to see more detail behind her ruling.

 

[Rainsford]

I didn't used think the constitution applied to foreign nationals, but it does if they are in the US, right? If we pick up an illegal Mexican immigrant, we can't torture him just because he's not a citizen (as far as I know at least). So why does location matter? There is nothing in the Constitution, again AFAIK, that says anything about where it does and doesn't apply, my understanding is that it is a limit on the behavior of the government, which I would assume reasonably applies no matter the location.

The Constitution protects US citizens from the government no matter where they are, even if I'm in a foreign country and the Marines capture and detain me, I'm still protected under the Constitution. And foreigners on US soil are also protected. So why does it make sense that foreigners, and ONLY foreigners, lose that protection outside of the US? I don't understand the legal argument here.

 

[Darkhawk28]

Originally posted by: conjur

In her ruling, Judge Green said the Supreme Court made it clear that the prisoners had constitutional rights - which includes having the advice of a lawyer and a fair opportunity to confront the evidence against them - that lower courts should enforce.

She noted the widespread allegations that detainees were abused during interrogations and said this cast doubt over any confession made under such circumstances.

I'd like to see more detail behind her ruling.

Yes, this is quite interesting.

 

[Rogue]

The question comes into play based on the Geneva Conventions and several military regulations that govern the treatment of such people. FM 27-10 covers this information and this document serves as the guideline by which we conduct ourselves on the battlefield with regard to POWs, etc. Here is an extract.

Section II. PERSONS NOT ENTITLED TO BE TREATED AS
PRISONERS OF WAR
72. Certain Persons in Occupied Areas
Persons in occupied areas not falling within the categories set forth
in Article 4, GPW (par. 61), who commit acts hostile to the occupant
or prejudicial to his security are subject to a special regime,
concerning which see chapter 6, section VIII. The provisions of the
present section must, in the case of offenses committed in occupied
territory, be read subject to the qualifications set forth in chapter 6,
section VIII (for example, the limitation on punishments prescribed
by GC, art. 68; par. 438 herein).
73. Persons Committing Hostile Acts Not Entitled To Be Treated as
Prisoners of War
If a person is determined by a competent tribunal, acting in conformity
with Article 5, GPW (par. 71), not to fall within any of the
categories listed in Article 4, GPW (par. 61), he is not entitled to be
treated as a prisoner of war. He is, however, a ?protected person?
within the meaning of Article 4, GC (par. 247). (See pars. 247 and
248, concerning the status of such ?protected persons? who have engaged
in conduct hostile to the opposing belligerent.)
74. Necessity of Uniform
Members of the armed forces of a party to the conflict and members
of militias or volunteer corps forming part of such armed forces
lose their right to be treated as prisoners of war whenever they
deliberately conceal their status in order to pass behind the military
lines of the enemy for the purpose of gathering military information
or for the purpose of waging war by destruction of life or property.
Putting on civilian clothes or the uniform of the enemy are examples
of concealment of the status of a member of the armed forces.

I know that there's not much to go on here, but you can certainly do a search for this document (FM 27-10) and you should be able to find it. The document was last updated in 1956, so don't assume that any version you find dated around that time has been superceded.

 

[CycloWizard]

Originally posted by: Rainsford
I didn't used think the constitution applied to foreign nationals, but it does if they are in the US, right? If we pick up an illegal Mexican immigrant, we can't torture him just because he's not a citizen (as far as I know at least). So why does location matter? There is nothing in the Constitution, again AFAIK, that says anything about where it does and doesn't apply, my understanding is that it is a limit on the behavior of the government, which I would assume reasonably applies no matter the location.

The Constitution protects US citizens from the government no matter where they are, even if I'm in a foreign country and the Marines capture and detain me, I'm still protected under the Constitution. And foreigners on US soil are also protected. So why does it make sense that foreigners, and ONLY foreigners, lose that protection outside of the US? I don't understand the legal argument here.

I think the argument is whether or not the detainees have recourse to sue the government for wrongful imprisonment or force hearings on whether or not they're being wrongfully imprisoned. It is my understanding that POWs do not have such rights and may be held without them until the end of hostilities (according to the Geneva Conventions). Doesn't seem right to me in this case because there will likely never be a declared end to the hostilities - just a big mess.

 

[AndrewR]

Originally posted by: Rainsford
The Constitution protects US citizens from the government no matter where they are, even if I'm in a foreign country and the Marines capture and detain me, I'm still protected under the Constitution. And foreigners on US soil are also protected. So why does it make sense that foreigners, and ONLY foreigners, lose that protection outside of the US? I don't understand the legal argument here.

Consider this, however: The US Constitution does NOT apply to US military stationed abroad in a foreign country when they commit a crime, even if that crime occurs on a US military installation. Such military members in certain cases will be handed over to host nation authorities for adjudication and punishment under the host nation's laws. In Japan, that means that someone who is accused of rape (a very sensitive subject on Okinawa) can be questioned without access to an attorney, for just one instance (which has been modified lately, but there are other cases where US Constitutional protections are not present).

So, US military overseas are not protected by their very own Constitution, which they have sworn to uphold and defend, yet we're extending those protections to scumbag militants who took up arms against US soldiers? Does that make ANY f-ing sense?

As for this ruling, it's only at the District Court level, and it directly conflicts with another District Court ruling (hmmm, judicial activism?) so it means nothing right now until a higher court weighs in. Even the Court of Appeals at this point is probably pointless until the Supremes weigh in (unless these two decisions are within the same Circuit).

 

[Jhhnn]

Nice rant, AndrewR, but you've made certain fundamental misrepresentations.

Just because the US govt grants host nations criminal adjudication rights wrt American personnel stationed in those countries doesn't mean we can therefore strip foreign captives of all legal rights by holding them in a place the admin claims is basically above the law of our own nation.

You're comparing apples to aardvarks.

As for the claim that Gitmo detainees actually fought against US troops, that's also fundamentally false, and misleading at best. Most were taken during a mass surrender to Northern alliance forces, and never came into contact with American troops, other than having received a lot of aerial bombardment... Others deliberately sought out US troops to surrender, believing they'd receive fair treatment, only to find out they're screwed, because they were carrying a weapon in afghanistan, which is about as common as carrying a wallet in the US, and because they weren't wearing a uniform, as if any of the Afghan combatants actually had uniforms per se...

How do we protect our way of life, our system of law and liberty, if we abandon it in an effort to win at any cost?

 

[fornax]

Originally posted by: AndrewR

So, US military overseas are not protected by their very own Constitution, which they have sworn to uphold and defend, yet we're extending those protections to scumbag militants who took up arms against US soldiers? Does that make ANY f-ing sense?

AndrewR, take a pill, get some rest and then borrow a brain. "Scumbag militants who took up arms against US soldiers"? May I remind you that the US soldiers actually went there uninvited? So if someone starts a war on our soil and we take up arms to defend our land, we'll be "scumbag militants who took up arms against <insert your favorite boogey nation here>"?

And why do you expect the US constitution (or any law) to apply on a foreign soil? You're more cluesless than I thought. I'm sure you'll be the first to raise ruckus if some of the illegal alians here insist that the Mexican or Chinese law applies to them. If you're in a foreign country, you live under their laws. Don't like it? Don't go there. The US took a big hit in foreign tourists when the fingerprinting requirements were announced -- people voted with their Euros, pounds and reals. It's our right to require anything from visitors, and it's their right not come here. Similarly, if we didn't want US laws to apply to foreigners, we shouldn't have brought them to Gitmo.

 

[AndrewR]

Originally posted by: Jhhnn
Nice rant, AndrewR, but you've made certain fundamental misrepresentations.

Just because the US govt grants host nations criminal adjudication rights wrt American personnel stationed in those countries doesn't mean we can therefore strip foreign captives of all legal rights by holding them in a place the admin claims is basically above the law of our own nation.

You're comparing apples to aardvarks.

As for the claim that Gitmo detainees actually fought against US troops, that's also fundamentally false, and misleading at best. Most were taken during a mass surrender to Northern alliance forces, and never came into contact with American troops, other than having received a lot of aerial bombardment... Others deliberately sought out US troops to surrender, believing they'd receive fair treatment, only to find out they're screwed, because they were carrying a weapon in afghanistan, which is about as common as carrying a wallet in the US, and because they weren't wearing a uniform, as if any of the Afghan combatants actually had uniforms per se...

How do we protect our way of life, our system of law and liberty, if we abandon it in an effort to win at any cost?

Are you stupid or just purposefully obtuse? I never said that the treatment of US forces overseas is reason to treat detainees a certain way. I mentioned it to point out the absurdity of assuming that everyone is entitled to Constitutional protection when US military personnel are not always given that courtesy, even when serving the very country operating under that document pursuant to mutual security treaties. Therefore, "denying" (which assumes there was some presumption that they were entitled in the first place, which is, as you call it, a fundamental misrepresentation) Constitutional rights to these detainees is by no means some "wicked notion".

As for the "poor Taliban" who routinely abused women and oppressed their own people, sorry if I have no sympathy for them. Poor, poor gun-toting miscreants. They were such good and honest people that they denied their women any healthcare at all.

Originally posted by: fornaxMay I remind you that the US soldiers actually went there uninvited? So if someone starts a war on our soil and we take up arms to defend our land, we'll be "scumbag militants who took up arms against <insert your favorite boogey nation here>"?

Hey nimrod, does the fact that the terrorists who ATTACKED THE UNITED STATES ON 9/11 were staged out of AFGHANISTAN make our intervention on the side of the Northern Alliance somehow, I dunno, JUSTIFIED?? Let's see, 3000 people die, but we're "uninvited" in Afghanistan? Could you please cite an invasion where provoked invaders were "invited" into the country? I guess the Allies in Germany can't complain about anything that happened since they weren't "invited".

Does Hallmark sell "invasion invitations" these days? I've been living abroad for awhile so I don't know.

And why do you expect the US constitution (or any law) to apply on a foreign soil?

And yet you expect the US Constitution to apply to the detainees who were apprehended in Afghanistan? Nice job, I don't even to argue since you've already done it!

 

[Dari]

Originally posted by: AndrewR

Originally posted by: Jhhnn
Nice rant, AndrewR, but you've made certain fundamental misrepresentations.

Just because the US govt grants host nations criminal adjudication rights wrt American personnel stationed in those countries doesn't mean we can therefore strip foreign captives of all legal rights by holding them in a place the admin claims is basically above the law of our own nation.

You're comparing apples to aardvarks.

As for the claim that Gitmo detainees actually fought against US troops, that's also fundamentally false, and misleading at best. Most were taken during a mass surrender to Northern alliance forces, and never came into contact with American troops, other than having received a lot of aerial bombardment... Others deliberately sought out US troops to surrender, believing they'd receive fair treatment, only to find out they're screwed, because they were carrying a weapon in afghanistan, which is about as common as carrying a wallet in the US, and because they weren't wearing a uniform, as if any of the Afghan combatants actually had uniforms per se...

How do we protect our way of life, our system of law and liberty, if we abandon it in an effort to win at any cost?

Are you stupid or just purposefully obtuse? I never said that the treatment of US forces overseas is reason to treat detainees a certain way. I mentioned it to point out the absurdity of assuming that everyone is entitled to Constitutional protection when US military personnel are not always given that courtesy, even when serving the very country operating under that document pursuant to mutual security treaties. Therefore, "denying" (which assumes there was some presumption that they were entitled in the first place, which is, as you call it, a fundamental misrepresentation) Constitutional rights to these detainees is by no means some "wicked notion".

As for the "poor Taliban" who routinely abused women and oppressed their own people, sorry if I have no sympathy for them. Poor, poor gun-toting miscreants. They were such good and honest people that they denied their women any healthcare at all.

Originally posted by: fornaxMay I remind you that the US soldiers actually went there uninvited? So if someone starts a war on our soil and we take up arms to defend our land, we'll be "scumbag militants who took up arms against <insert your favorite boogey nation here>"?

Hey nimrod, does the fact that the terrorists who ATTACKED THE UNITED STATES ON 9/11 were staged out of AFGHANISTAN make our intervention on the side of the Northern Alliance somehow, I dunno, JUSTIFIED?? Let's see, 3000 people die, but we're "uninvited" in Afghanistan? Could you please cite an invasion where provoked invaders were "invited" into the country? I guess the Allies in Germany can't complain about anything that happened since they weren't "invited".

Does Hallmark sell "invasion invitations" these days? I've been living abroad for awhile so I don't know.

And why do you expect the US constitution (or any law) to apply on a foreign soil?

And yet you expect the US Constitution to apply to the detainees who were apprehended in Afghanistan? Nice job, I don't even to argue since you've already done it!

Instigators have to literally invite those they attack now? WTF is going on in these liberals head? Since when did a nation ever invite another nation to attack it? WOW, I wonder if fornax believes what he wrote?

 

[Jhhnn]

You forget, AndrewR, that the mutual defense treaties you mention are legal addendums to the constitution, and that military personnel are afforded whatever legal protections that the host country would normally provide to their own citizens. It's a precondition for our troops being in their country, and the same applies to any foreign troops serving in the US- Nato personnel, for example.

Which in no way justifies our treatment of foreign captives in any way outside our normal rules of jurisprudence, either under civilian statutes, the UCMJ, and the Geneva Conventions. It doesn't matter who they are, it matters who we are... and we are a nation of laws. You argue that the ends justify the means, I argue that there are no ends other than the means themselves. I claim that due process is part and parcel of the freedom, liberty and justice we seek to defend, you seem to claim that such principles are defensible only by tyranny and expediency, a concept so backward as to attack the whole conceptual framework of the Constitution itself.