LAW PUNDIT Wednesday, November 10, 2004 11/10/2004 10:40:00 AM [Home]
War-Crimes Trials at Guantanamo
War-Crimes Trials at Guantanamo
Civil Action No. 04-1519
Memorandum Opinion & Order Issued November 8, 2004 by Judge James Robertson
A November 9, 2004 article by Neil A. Lewis at the New York Times entitled
Judge Halts War-Crime Trial at Guantanamo
reports that James Robertson has
"ruled that President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions in establishing military commissions to try detainees at the United States naval base here as war criminals."
Robertson is a controversial left-wing Clinton appointee who manifests the judicial problem which is leading the Bush administration to appoint counterbalancing right-wing judges, a development which we find to be an unfortunate, if understandable, reaction to the continued encroachment of the judiciary branch of government into legislative and executive spheres.
Robertson opined:
"The well-established doctrine that federal courts will “normally not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted,” Schlesinger v. Councilman, 420 U.S. 738 (1975), is not applicable here."
It will be interesting to see if that opinion holds up under judicial review.
In addition, Robertson's 47-page memorandum contains the following conclusion:
"It is now clear, by virtue of the Supreme Court’s
decision in [...], that the detentions of enemy combatants at
Guantanamo Bay are not unlawful per se. The granting (in part)
of [the] petition for habeas corpus accordingly brings only
limited relief. The order that accompanies this opinion
provides: (1) that, unless and until a competent tribunal
determines that [the accused] is not entitled to POW status, he may be
tried for the offenses with which he is charged only by courtmartial
under the Uniform Code of Military Justice...."
The argument of the government to the contrary is that a terrorist is not a prisoner of war (POW) and that the accused in this case has been declared an "enemy combatant" and thus not to be a POW by the President of the United States in his capacity of Commander-in-Chief.
Robertson opines that this status must be determined by "a competent tribunal", writing:
"...the President himself has determined that [the accused terrorist] was a member of [a terrorist organization] or otherwise involved in terrorism against the United States. Id. Presidential determinations in this area, the
government argues, are due “extraordinary deference.” 10/25/04 Tr. at 38. Moreover (as the court was advised for the first time at oral argument on October 25, 2004) a Combatant Status Review Tribunal (CSRT) found, after a hearing on October 3, 2004, that [the accused terrorist] has the status of an enemy combatant “as either a member
of or affiliated with [a terrorist organization].” 10/25/04 Tr. at 12.
Article 5 of the Third Geneva Convention provides:
'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.'
This provision has been implemented and confirmed by Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, http://www.army.mil/usapa/epubs/pdf/r190_8.pdf., [The accused terrorist] has asserted his entitlement to POW status, and the Army’s regulations provide that whenever a detainee makes such a claim his status is “in doubt.” Army Regulation 190-8, § 1-6(a); [...], 124 S. Ct. at 2658 (Souter, J., concurring). The Army’s regulation is in keeping with general international understandings of the meaning of Article 5. See generally Generals and Admirals Amicus Brief at 18-22.
Thus the government’s position that no doubt has arisen as to [the accused's] status does not withstand scrutiny, and neither does the government’s position that, if a hearing is required by Army regulations, “it was provided,” 10/25/04 Tr. at 40. There
is nothing in this record to suggest that a competent tribunal has determined that [the accused] is not a prisoner-of-war under the Geneva Conventions. [The accused] has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees’ status under the Geneva Conventions. It was
established to comply with the Supreme Court’s mandate in [...], supra, to decide “whether the detainee is properly detained as an enemy combatant” for purposes of continued detention."
Of course, Robertson's logic is faulty. There is no doubt about the accused's status because the President has already made a decision that he is an "enemy combatant". Moreover, even if we were to follow Judge Robertson's line of reasoning, he begs the question (i.e. assumes the truth of the thing to be proved) and implicitly assumes that the CSRT - which is specifically called a Combatant Status Review Tribunal - is not "a competent tribunal" because it was not specifically established to address detainees' POW status under the Geneva Conventions - as if the Geneva Conventions could require sovereign governments to establish special courts just for the interpretation of its provisions. If the CSRT (constituted to accord with a decision of the United State Supreme Court) determines that a detainee is properly detained "as an enemy combatant" (hence, not a POW) - thus affirming the President's determination of the detainee's status, then there is "no doubt" about the accused's status and that should end the matter.
Update:
A November 22, 2004 posting at SCOTUS Blog by Lyle Denniston covers the newest developments in the above case.
Permalink : Andis Kaulins : 11/10/2004 10:40:00 AM
War-Crimes Trials at Guantanamo
War-Crimes Trials at Guantanamo
Civil Action No. 04-1519
Memorandum Opinion & Order Issued November 8, 2004 by Judge James Robertson
A November 9, 2004 article by Neil A. Lewis at the New York Times entitled
Judge Halts War-Crime Trial at Guantanamo
reports that James Robertson has
"ruled that President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions in establishing military commissions to try detainees at the United States naval base here as war criminals."
Robertson is a controversial left-wing Clinton appointee who manifests the judicial problem which is leading the Bush administration to appoint counterbalancing right-wing judges, a development which we find to be an unfortunate, if understandable, reaction to the continued encroachment of the judiciary branch of government into legislative and executive spheres.
Robertson opined:
"The well-established doctrine that federal courts will “normally not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted,” Schlesinger v. Councilman, 420 U.S. 738 (1975), is not applicable here."
It will be interesting to see if that opinion holds up under judicial review.
In addition, Robertson's 47-page memorandum contains the following conclusion:
"It is now clear, by virtue of the Supreme Court’s
decision in [...], that the detentions of enemy combatants at
Guantanamo Bay are not unlawful per se. The granting (in part)
of [the] petition for habeas corpus accordingly brings only
limited relief. The order that accompanies this opinion
provides: (1) that, unless and until a competent tribunal
determines that [the accused] is not entitled to POW status, he may be
tried for the offenses with which he is charged only by courtmartial
under the Uniform Code of Military Justice...."
The argument of the government to the contrary is that a terrorist is not a prisoner of war (POW) and that the accused in this case has been declared an "enemy combatant" and thus not to be a POW by the President of the United States in his capacity of Commander-in-Chief.
Robertson opines that this status must be determined by "a competent tribunal", writing:
"...the President himself has determined that [the accused terrorist] was a member of [a terrorist organization] or otherwise involved in terrorism against the United States. Id. Presidential determinations in this area, the
government argues, are due “extraordinary deference.” 10/25/04 Tr. at 38. Moreover (as the court was advised for the first time at oral argument on October 25, 2004) a Combatant Status Review Tribunal (CSRT) found, after a hearing on October 3, 2004, that [the accused terrorist] has the status of an enemy combatant “as either a member
of or affiliated with [a terrorist organization].” 10/25/04 Tr. at 12.
Article 5 of the Third Geneva Convention provides:
'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.'
This provision has been implemented and confirmed by Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, http://www.army.mil/usapa/epubs/pdf/r190_8.pdf., [The accused terrorist] has asserted his entitlement to POW status, and the Army’s regulations provide that whenever a detainee makes such a claim his status is “in doubt.” Army Regulation 190-8, § 1-6(a); [...], 124 S. Ct. at 2658 (Souter, J., concurring). The Army’s regulation is in keeping with general international understandings of the meaning of Article 5. See generally Generals and Admirals Amicus Brief at 18-22.
Thus the government’s position that no doubt has arisen as to [the accused's] status does not withstand scrutiny, and neither does the government’s position that, if a hearing is required by Army regulations, “it was provided,” 10/25/04 Tr. at 40. There
is nothing in this record to suggest that a competent tribunal has determined that [the accused] is not a prisoner-of-war under the Geneva Conventions. [The accused] has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees’ status under the Geneva Conventions. It was
established to comply with the Supreme Court’s mandate in [...], supra, to decide “whether the detainee is properly detained as an enemy combatant” for purposes of continued detention."
Of course, Robertson's logic is faulty. There is no doubt about the accused's status because the President has already made a decision that he is an "enemy combatant". Moreover, even if we were to follow Judge Robertson's line of reasoning, he begs the question (i.e. assumes the truth of the thing to be proved) and implicitly assumes that the CSRT - which is specifically called a Combatant Status Review Tribunal - is not "a competent tribunal" because it was not specifically established to address detainees' POW status under the Geneva Conventions - as if the Geneva Conventions could require sovereign governments to establish special courts just for the interpretation of its provisions. If the CSRT (constituted to accord with a decision of the United State Supreme Court) determines that a detainee is properly detained "as an enemy combatant" (hence, not a POW) - thus affirming the President's determination of the detainee's status, then there is "no doubt" about the accused's status and that should end the matter.
Update:
A November 22, 2004 posting at SCOTUS Blog by Lyle Denniston covers the newest developments in the above case.
Permalink : Andis Kaulins : 11/10/2004 10:40:00 AM
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