- Jul 29, 2001
- 39,398
- 19
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Right when the cases get to the SC steps, Bush is allowing the interned to have lawyers to defuse the cases and prevent rule by the SC. Obvious he knows he's screwing over the constitution on the two US citizens detained without due process/habus corpus.
Then you have the little matter of enemy combatants which have to fall under US juristiction or the geneva code who are stuck in no mans legal limbo... if you value justice at all... and quaint notions like innocent till proven guilty...these guys hav'nt even been charged in over 2 years.
IMO they should fall under US Jusistiction according to the 14th amendment:
" Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."
Question does the first subsection, being specific to citizens alone, and the subsequent conditions explicitly relate to ANY PERSON, not "any citizen"?
Anyway this whole story below is a very sad state of affairs for this country IMO.
Text
Then you have the little matter of enemy combatants which have to fall under US juristiction or the geneva code who are stuck in no mans legal limbo... if you value justice at all... and quaint notions like innocent till proven guilty...these guys hav'nt even been charged in over 2 years.
IMO they should fall under US Jusistiction according to the 14th amendment:
" Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."
Question does the first subsection, being specific to citizens alone, and the subsequent conditions explicitly relate to ANY PERSON, not "any citizen"?
Anyway this whole story below is a very sad state of affairs for this country IMO.
The Farce of the Enemy Combatant
The Bush Administration is under a considerable amount of pressure regarding its policy of indefinitely detaining people ? American citizens or not ? without charge, access to attorneys or legal recourse. The administration is currently detaining at least two American citizens at a US Navy brig in South Carolina and is detaining hundreds of foreign nationals ? including citizens of allied nations ? at its facility in Guantanamo Bay, Cuba. An additional number of suspected al-Qaeda members are being detained at Diego Garcia, the British-owned military base.
Many of these detainees have been held for two years now without charge. They have been held without access to attorneys. And, most importantly, they have been held in contravention of the laws and customs of war.
A number of legal and diplomatic challenges to the Administration's detention practices have been lodged over the past nearly two years, and it seems that the Administration is finally listening ? if only because a case regarding its detentions has made its way to the Supreme Court.
The Boston Globe reports today that the Bush Administration "mounted its full defense" of its power to detain "enemy combatants" yesterday. The arguments are taking place before the Supreme Court.
The case before the court is whether or not Yaser Esam Hamdi, an American citizens, should be allowed access to an attorney. Hamdi has been detained for two years by the Department of Defense, ever since he was captured on the field of battle in Afghanistan. Yaser Hamdi himself was denied access to an attorney, and indeed disallowed access to anyone. He was not allowed to make phone calls, to accept visitors or to read or write letters.
Because Yaser Hamdi was incapable of appealing his detention his father did so on his behalf. Esam Fouad Hamdi filed a case arguing that his son had been denied his fundamental rights as an American citizen by the Bush Administration and the Department of Defense.
The Bush Administration is presently arguing before the Supreme Court that the Court has no jurisdiction over the treatment of Yaser Hamdi, Jose Padilla or any other "detainee" the Bush Administration chooses to keep incommunicado. They argue that the president retains the power to capture and detain "enemy combatants" during wartime, and that due to the concept of seperation of powers the Court has no right to get involved.
Even so, Bush seems to have caved at least to some extent. In the Bush Administration's brief to the Court it revealed that it has now decided that Yaser Hamdi should have access to an attorney. It explains that this "privelege" was granted to Hamdi not because he had a right to an attorney but "as a matter of discretion and military policy."
Last night the Pentagon also announced that David Hicks, an Australian citizen detained at Gitmo, would be given access to a US military attorney. Presumably Hicks' attorney will be utterly qualified and competent ? an attorney who has won at least one case before in his or her career. Surely the best the military can offer.
The Bush Administration hasn't allowed these two wretches to see attorneys out of some deep-seated respect for the Constitution. They aren't letting them have legal representation because they feel it's the "right thing to do." They're doing it because by giving these two the right to attorneys they may be able to retain the ability to deny others attorneys. With the case currently before the Supreme Court the Bush Administration needs to show that it can be a fair arbiter itself. The Bush Administration needs to show that it can be "nice" in some cases, and that it only denies access to attorneys when it's "absolutely necessary."
More than that, the Bush Administration wants to avoid any Supreme Court ruling on this subject. That's why they're arguing the Court has no authority. But it hopes that even if the Court rejects that argument (which it should) that the Court won't rule because the case before it pertains to a situation which no longer exists ? Hamdi has been allowed an attorney.
The crux of the Bush Administration's argument before the Supreme Court is that it has the ultimate authority to detain combatants during wartime. The brief presented to the Court by US Solicitor General Theodore Olson states that "The military detention in this case is consistent with this court's precedents recognizing the president's authority to capture and detain combatants in wartime, Congress's express statutory backing of the president's use of all necessary and appropriate military force in connection with the current conflict, and the time-honored laws and customs of war."
This is simply not true and entirely misleading, and the Supreme Court will hopefully see past the Administration's faulty and dishonest argument.
All the precedents in the Administration's brief to the court come from World War II. World War II was an officially declared war with a definite beginning and end. The Congress had authorized the conduct of that conflict by formally declaring war. The "War on Terror," however, bears more resemblance to the "War on Drugs" than World War II. It is a war against ideas, not against nations. It is a war with a beginning but no clearly defined end (i.e. the surrender of the enemy nation).
More than that, the Administration's power to detain so-called "enemy combatants" comes from two documents: the 1949 Geneva Convention Relevant to the Treatment of Prisoners of War and Ex Parte Quirin, a 1942 Supreme Court decision.
The 1949 Geneva Convention is most relevant, and so we will discuss it first.
The Bush Administration has repeatedly argued that the 1949 Geneva Convention does not apply to those captured in Afghanistan, arguing that those captured in Afghanistan are instead "enemy combatants" and not prisoners of war. The term "enemy combatant" appears nowhere in the 1949 Convention.
In fact, the Convention states plainly that it applies to everyone captured in wartime is a POW until and unless proven otherwise. Article 5 states:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their
status has been determined by a competent tribunal.
Article 5 mentions an Article 4. Article 4 of the Convention sets out who is a POW (and thus entitled to various rights and priveleges under the law) and who is not. There are three very important sectinos of Article 4 that may well mean that those captured in Afghanistan are indeed POWs (or EPWs as DoD prefers to refer to them).
Section 2 of Article 4 states that "Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that [they] fulfil the followinc conditions..."
This section goes on to say that people defined as POWs under Section 2 must be commanded by a person responsible for his subordinates, have a "fixed distinctive size recognizable at a distance", carry arms openly and "conduct their operations in accordance with the laws and customs of war."
Section 3 of Article 4 states that "Members of regular armed forcse who profess allegiance to a government or an authority not recognized by the Detaining Power" are POWs.
Section 6 states that "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."
It could be argued that any one of these three conditions could apply to at least some of those captured in Afghanistan. Certainly they could apply to members of the Taliban, if not members of al-Qaeda.
This is because although the United States did not recognize the Taliban as the government of Afghanistan, a number of other United Nations members did. And those fighting on behalf of the Taliban were doing so as part of the "armed forces" of this government, whether or not the government was recognized by the United States.
In the end, though, I am not the one to determine whether or not those captured on the battlefield in Afghanistan are enemy prisoners of war or illegal combatants (the proper term for those captured on the field of battle who don't meet the criteria for POW status under the 1949 Convention). But it isn't up for the President either.
The 1949 Convention, which was signed and ratified by the United States of America, states plainly that only a "competent tribunal" can decide whether or not a given individual is a POW or an illegal combatant if there is "any doubt". It states specifically that "Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall
enjoy the protection of the present Convention until such time as their
status has been determined by a competent tribunal."
That couldn't be any clearer.
So, now that it has been shown conclusively that the 1949 Geneva Convention provides the Administration no cover for its detention of "enemy combatants" let's move over to the other precedent they cite: Ex Parte Quirin.
Ex Parte Quirin applied to members of a regular armed forces who got out of a submarine on the coast of Long Island and immediately shed their uniforms during World War II. These German soldiers were captured by the FBI and were obviously spies.
A military tribunal empaneled by the War Department determined that the spies were not entitled to the protection of POW status because they had acted as spies. The tribunal (and later the U.S. Supreme Court) quoted a general order of 1863 and the 1940 Rules of Land Warfare, issued by the War Department.
Under those precedents (and under the 1949 Geneva Convention) those German soldiers were illegal combatants and not entitled to the protections of POW status. But the Roosevelt Administration didn't just say "this is true because we said so". No. Instead they empaneled a military tribunal to determine whether or not these Germans were entitled to the protections of POW status. The case went to the Supreme Court and the Supreme Court ruled that:
"Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which
is within the jurisdiction of the Commission, and the admitted facts
affirmatively show that the charge is not merely colorable or without
foundation."
You see, the Court in that case simply confirmed the ruling of a military tribunal. In doing so it reaffirmed ? even before the Geneva Convention of 1949 was written ? that detainees are entitled to a judicial review of their status to determine whether they are POWs or illegal combatants.
The Bush Administration in this case is acting unconstitutionally and illegally. It is violating the laws and customs of war and the United States Constitution. It has announced its intention to indefinitely detain many of those captured in the War on Terror. It has announced that the provisions of the 1949 Convention do not apply to those captured.
And, most importantly, the Bush Administration is labelling American citizens "enemy combatants" without due process, without trial, without giving those citizens access to counsel to argue on their behalf. Even American citizens captured on American soil, like Jose Padilla, are being detained indefinitely as enemy combatants.
Under the United States Constitution American citizens ? and, in fact, anyone arrested in the United States ? are entitled to due process. They are entitled to access to an attorney. They are entitled to a day in court, to a trial by a jury of their peers (peers in the case of members of a military can be members of a military, making military tribunals okay under the Constitution).
What the Bush Administration is arguing for in front of the Supreme Court is nothing less than the power to indefinitely and secretly detain American citizens in military brigs. They are arguing for the ability to grab American citizens off the streets ? or in airports in Chicago ? and put them in a hole for the rest of their lives. They're trying to get the power (which they've actually already seized for themselves) to "disappear" anyone they want.
Hamdi may now have access to an attorney, but Jose Padilla doesn't. Padilla continues to rot in the US Navy Brig in South Carolina. Padilla continues to be held without charge. Padilla still has no recourse. He remains incapable of apealling his detention to a judge.
Jose Padilla has been denied his every single right under the US Constitution. Yaser Hamdi, for two years, was denied his every single right under the US Constitution. And every single detainee at Gitmo and Diego Garcia are being denied their rights under the 1949 Geneva Convention, which was signed and ratified by the United States of America and is thus the "supreme law of the land" according to the United States Constitution.
The Bush Administration has given itself powers normally reserved only for brutal dictatorships such as Pinochet's Chile, Stalin's Soviet Union, Hussein's Iraq and Karimov's Uzbekistan. The power to detain citizens incommunicado without due process, without access to an attorney, without access even to a judge is the power to oppress every last American. It is one of several powers necessary to become Caesar. Others include the ability to suppress dissent and the ability to conduct searches without probable cause a crime has been committed.