Posted on 07/11/2006 6:59:28 AM PDT by Sub-Driver
In Big Shift, U.S. to Follow Geneva Treaty for Detainees By NEIL A. LEWIS and JOHN O’NEIL
WASHINGTON, July 11 — In a sweeping change of policy, the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today.
The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today.
As part of its decision, the court found that a key provision of the Geneva conventions, known as Common Article 3, did apply to terror suspects, contradicting the position taken by the Bush administration.
The Pentagon memo allowing detainees the protections of Article 3 was first reported today by The Financial Times.
In 2002, President Bush declared that members of Al Qaeda and other terror suspects seized during the invasion of Afghanistan were “illegal combatants,’’ and so were not entitled to the protections of the Geneva conventions, which among other things set forth rules for the treatment of prisoners of war.
The main thrust of the recent Supreme Court ruling, in a case known as Hamdan v. Rumsfeld, was that the administration had exceeded its authority by creating a system of tribunals without the approval of Congress. But the court also declared that the suspects fell under Article 3, which applies to all “armed combatants,’’ and that detainees were able to assert their rights under Article 3 in federal court.
President Bush last week said that he “would comply’’ with the court’s ruling, but he has given no details of how he would do so.
(Excerpt) Read more at nytimes.com ...
Frankly, that's a politics game. If we were discussing it honestly, there would be 5 justices with articles of impeachment against them right now...not because we disagree with their opinions, but because the Constitution, the Law, and the Geneva Conventions are so clear on this that they are either illiterate (a distinct possibility), or simply dispensed with the Constitution. There really aren't any other alternatives.
The Congress in the DTA clearly and directly removed this case from their jurisdiction as of 30 Dec 2005. Article III of the Constitution directly and explicitly gives Congress that power. The Geneva Conventions explicitly exclude the detainees from coverage as illegal combatants, and the DTA provides a path for challenging their illegal combatant status(which challenge had nothing to do with this case and which did not involve SCOTUS).
The SCOTUS has invoked a Constitutional crisis and dared the other branches to deal with it. This is about as direct as it comes.
Worse. Using them as a "trick" for advantage.
Anyone at Gitmo is "taking no active part in the hostilities", and hence is a person who "shall in all circumstances be treated humanely".
Article 3 doesn't restrict itself to only uniformed people, or only conventional soldiers, or any other similar group. Anyone who isn't fighting is covered, lawful combatant or otherwise.
Whether you think this is a good idea or even whether this will represent a significant change is another matter, but I'm pretty sure that's why this applies to all prisoners held by the US.
Once again, they were not uniformed and they are not part of a signatory nation. So they are NOT covered. This is a penumbra by SCOTUS that is unsupported by precedent either here or elsewhere in the world that I can tell.
Ummm. No, that's a word game. If they were taking no active part when they were captured (i.e., are noncombatants), then it would apply. If they were part of a formal military (as defined elsewhere) and had laid down arms or were hospitalized, when they surrendured, it also would then apply. Any other reading makes the statements meaningless.
That's what I thought! When I mentioned these facts (not as lucidly as you have) I was rebuked with the accusation that I must know more than the SCOTUS. In this case, my liberal friend was right!
Actually, no majority of the Court ruled on the Geneva Convention nonsense, because Kennedy explicitly receded from those parts of Stevens' opinion, leaving only 4 justices signing on for extending Common Arttcle 3 to the Gitmo detainees. Kennedy signed on to the majority's refusal to allow executive military tribunals (and the jursidictional ruling that the Court could still hear Hamdan's case). Bush has no legal duty to follow the ruling of four justices who do not comprise a majority.
Which makes this news from the administration all the more unnecessary and offensive. The Bush people are doing serious damage to the executive's war powers for absolutely no reason.
The only reason the Gitmo detainees are not "taking part in the hostilities" is because they are confined.
As soon as they are released, they will resume their hostilities. This has already happened with released prisoners.
The NYT is the enemy of all that is good and wholesome.
Jurisdiction is jurisdiction. Either they have it, or they don't. As of Dec 30,2005 they lost it. If Congress wanted them to retain jurisdiction for pending cases, then they'd have so written it, as they've done before. This is the way they've always previously ruled as well. The majority just decided to ignore it this time.
So have I, but we are down to the wire.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.