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Old 06-29-2006, 09:34 AM   #1
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Supreme Court - GITMO trials - NOT LEGAL

Two years ago, the court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.

The vote was split 5-3, with moderate Justice Anthony M. Kennedy joining the court's liberal members in ruling against the Bush administration. Chief Justice John Roberts, named to the lead the court last September by Bush, was sidelined in the case because as an appeals court judge he had backed the government over Hamdan.

Thursday's ruling overturned that decision.

Bush spokesman Tony Snow said the White House would have no comment until lawyers had had a chance to review the decision. Officials at the
Pentagon and Justice Department were planning to issue statements later in the day.

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Old 06-29-2006, 09:43 AM   #2
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Sounds like a good start.

Where is this from?

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Old 06-29-2006, 09:59 AM   #3
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I am proud of the court.
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Old 06-29-2006, 12:20 PM   #4
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They did the right thing.
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Old 06-29-2006, 01:26 PM   #5
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(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constiuted court affording all the judicial guarantees which are recognized as indispensible by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The Court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

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Old 06-29-2006, 11:49 PM   #6
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This thread would have had few hundred posts two years ago....

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Old 06-30-2006, 01:19 AM   #7
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clearly you guys have been brainwashed by the liberals, guys.
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Old 06-30-2006, 06:55 PM   #8
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Why Dread, whatever do you mean?

I hate to say it, though, as long as Congress remains monolithic this may be less than a victory than we beleive. Bush may already be trying to "reach out" to people like Arlen Specter who proposed a way to have "a Constitutionally acceptable miltary tribunal" a yr and half ago. This may be helpful but as long as all 4 branches of power in the Us remain in the hands of the radical element of a party, led by as man who has sought to use that political advatage to radically centralize Executive power, such decisions are more the excpetion than the rule.....but it is a start.

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