The President Really Did Make Terrorists POW’s Today
Earlier today, before his speech, it was reported that President Bush was going to grant POW status to high-level terror detainees. Now there is some disagreement (see here and here) over whether or not the President has actually done that.
Personally, given the President's announcement today, I think he has. Bush has announced that 14 high-level terror detainees (info on those folks here) will be transfered to the detention facility in Guantanamo Bay in order to go through the tribunal process as soon as Congress authorizes it.
You'll remember that previously, in the Hamdan vs. Rumsfeld decision, the Supreme Court ruled that any tribunal established by the U.S. military must have the approval of Congress. This is in keeping with Article I, Section 8 of the Constitution which states:
And Article III Section 1, which states:
Clearly, the idea that the President must get approval of Congress before ordering the military to establish any new tribunals not already allowed for under current military code is beyond argument. Unfortunately (in my estimation), in addition to ruling that the President's tribunals were simply un-Constitutional the Supreme Court went a step further (see pages 6 and 7) and also ruled that these tribunals violated Article III of the Geneva Conventions which prohibits executions and the passing of sentences without...
In Hamdan the Supreme Court defined a "regularly constituted court" as:
“established and organized in accordance with the laws and procedures already in force in a country."
So what does all this mean? It means that the Supreme Court has ruled that the Geneva Conventions do, in fact, apply to terrorist detainees in the war on terror. Does that mean the terrorist detainees fall under the definition of "prisoner of war" as far as international law is concerned? I don't know. I'm not that smart, but as near as I can tell they may as well be POW's as they're getting all the same protections.
At the very least, I think it means that saying these detainees aren't POW's but are just entitled to certain protections under the Geneva Conventions is a distinction without much of a difference.
Regardless, this is why the President has transfered the high-level terror detainees mentioned above to Guantanamo Bay to await trial by whatever tribunals Congress authorizes. He had to do it in order to be in compliance with the Supreme Court, but it's also something of a leverage move as well. By putting the worst of the worst among terror detainees next in line for trial by tribunal the President puts a lot of pressure on Congress to approve his tribunals.
I think that ultimately it's a good move, in light of the Supreme Court's ruling in the matter. I'd still argue that the Hamdan decision went too far in applying the Geneva Conventions to terrorist detainees, but that's so much water under the bridge now.
Personally, given the President's announcement today, I think he has. Bush has announced that 14 high-level terror detainees (info on those folks here) will be transfered to the detention facility in Guantanamo Bay in order to go through the tribunal process as soon as Congress authorizes it.
You'll remember that previously, in the Hamdan vs. Rumsfeld decision, the Supreme Court ruled that any tribunal established by the U.S. military must have the approval of Congress. This is in keeping with Article I, Section 8 of the Constitution which states:
The Congress shall have Power... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations...and make Rules concerning Captures on Land and Water...[and] To make Rules for the Government and Regulation of the land and naval Forces;
And Article III Section 1, which states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Clearly, the idea that the President must get approval of Congress before ordering the military to establish any new tribunals not already allowed for under current military code is beyond argument. Unfortunately (in my estimation), in addition to ruling that the President's tribunals were simply un-Constitutional the Supreme Court went a step further (see pages 6 and 7) and also ruled that these tribunals violated Article III of the Geneva Conventions which prohibits executions and the passing of sentences without...
...previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
In Hamdan the Supreme Court defined a "regularly constituted court" as:
So what does all this mean? It means that the Supreme Court has ruled that the Geneva Conventions do, in fact, apply to terrorist detainees in the war on terror. Does that mean the terrorist detainees fall under the definition of "prisoner of war" as far as international law is concerned? I don't know. I'm not that smart, but as near as I can tell they may as well be POW's as they're getting all the same protections.
At the very least, I think it means that saying these detainees aren't POW's but are just entitled to certain protections under the Geneva Conventions is a distinction without much of a difference.
Regardless, this is why the President has transfered the high-level terror detainees mentioned above to Guantanamo Bay to await trial by whatever tribunals Congress authorizes. He had to do it in order to be in compliance with the Supreme Court, but it's also something of a leverage move as well. By putting the worst of the worst among terror detainees next in line for trial by tribunal the President puts a lot of pressure on Congress to approve his tribunals.
I think that ultimately it's a good move, in light of the Supreme Court's ruling in the matter. I'd still argue that the Hamdan decision went too far in applying the Geneva Conventions to terrorist detainees, but that's so much water under the bridge now.
robert108
golfmann
Bullwinkle
dougee
2Hotel9
RebTex
JazzyKat
Clint F
likwidshoe
