Federal Judge Dismisses Detainee Lawsuit

Jan 19, 05 16:07

Post #1 of 19 (1915 views)

Judge rejects Guantanamo cases
news.com.au ^ | 20 January 2005

A US federal judge today dismissed the cases of seven Guantanamo Bay prisoners who sought to challenge the lawfulness of their continued detention.

"To the extent that these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards the detainees," US District Judge Richard Leon said.

"The extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine," he wrote in the 34-page opinion.

Until the Congress or US President George W Bush acted further, he concluded, there was "no viable legal theory" under which a federal court could issue the writ of habeas corpus sought by the detainees.

Judge Leon said foreign nationals captured and detained outside the United States had no recognisable constitutional rights.

About 550 people are being held at the US Navy base at Guantanamo Bay in Cuba, after being detained during the 2001 invasion of Afghanistan and in other operations in the US "war against terrorism".

Bush administration lawyers have argued the prisoners have no constitutional rights and their lawsuits, challenging the conditions of their confinement and seeking their release, must be dismissed.

Cases have been brought in federal court in Washington by more than 60 Guantanamo prisoners. The US Supreme Court ruled in June that the prisoners could bring the cases.

Although Judge Leon, who was appointed to the bench by Mr Bush, dismissed the cases before him, US District Judge Joyce Hens Green is deciding whether the cases of 10 other Guantanamo prisoners can go forward.

The lawyers for the 10 detainees have argued that they have the right to a fair trial and should be given the proper opportunity to defend themselves.

Judge Leon's ruling involved one French national, an Algerian and five Algerian-Bosnian citizens.

"In the final analysis, the petitioners are asking this court to do something no federal court has done before: evaluate the legality of the executive's capture and detention of non-resident aliens, outside the United States, during a time of armed conflict," he said.

Re: Federal Judge Dismisses Detainee Lawsuit [big kahuna] [ In reply to ]

Jan 19, 05 17:12

Post #2 of 19 (1909 views)

so basically, at least to judge leon, the u.s. can detain foreigners during armed conflict and those foreigners have no recourse to defend themselves or otherwise challenge their detention in any way through the courts? if i read this right, he is basically saying that a challenge to their detention is a political question best resolved by congress and thus there is no jurisdiction for the courts.

he is pretty much saying that whatever congress decides to do with these people is ok.

something seems very un-american about that...

f/k/a mclamb6

Re: Federal Judge Dismisses Detainee Lawsuit [mclamb6] [ In reply to ]

Jan 19, 05 17:18

Post #3 of 19 (1908 views)

No, read the article. The judge is saying that these detainess have no Consitutional rights. Their rights are covered by military laws and rules already in place. This also doesn't mean we can just detain any foreigners we feel like.

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 19, 05 18:37

Post #4 of 19 (1901 views)

i understand that the ucmj is different from the regular statutes/united states code, but it's not extra-constitutional. the ucmj still must comply with constitutional mandates. without having looked at it closely, i believe the ucmj isn't quite as strict on certain issues, constitutionally speaking, as an allowance for the needs to run an effective military, but it can't just go willy nilly and pull an end run around the constitution.

and the judge is essentially saying that, at least with respect to "traditional" avenues of recourse(i.e. the federal court system), there aren't any restrictions on their ability to detain a foreign combatant.

f/k/a mclamb6

Re: Federal Judge Dismisses Detainee Lawsuit [mclamb6] [ In reply to ]

Jan 19, 05 18:45

Post #5 of 19 (1900 views)

The U.S. Constitution applies to U.S. citizens. Other laws passed may not be in conflict with the Consitution, but since that document doesn't address the detainment of foreigners, the rules set up by the Military courts and various other laws already passed by Congress don't have to pass a Constitutional test. These guys certainly have rights, just not Constitutional ones.

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 19, 05 18:57

Post #6 of 19 (1899 views)

In Reply To:

The U.S. Constitution applies to U.S. citizens. Other laws passed may not be in conflict with the Consitution, but since that document doesn't address the detainment of foreigners, the rules set up by the Military courts and various other laws already passed by Congress don't have to pass a Constitutional test. These guys certainly have rights, just not Constitutional ones.

The Geneva Convention

In case you want to read it: http://www.unhchr.ch/html/menu3/b/91.htm

Iraq, Iran, etc. did not sign on to the geneva Convention - but the USA follows the rules of the Geneva Convention and therefore treats it's prisoners humainly and by the Geneva Convention - these are prisoners of war.

Re: Federal Judge Dismisses Detainee Lawsuit [Sparticus] [ In reply to ]

Jan 19, 05 19:00

Post #7 of 19 (1898 views)

Maybe you should read it because these detainees do not fit the Geneva Conventions definitions regarding prisoners of war.

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 19, 05 19:08

Post #8 of 19 (1896 views)

In Reply To:

Maybe you should read it because these detainees do not fit the Geneva Conventions definitions regarding prisoners of war.

I have read it. Time for other opinions -- here is the convention -- do the detainees fall under these conditions??

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. 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 such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. 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.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 5

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

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.

Re: Federal Judge Dismisses Detainee Lawsuit [Sparticus] [ In reply to ]

Jan 19, 05 19:22

Post #9 of 19 (1894 views)

Are you asking for other Slowtwitcher's opinions?

My reading says no for the following reasons.

A.2.a. These guys aren't operating under capable command
A.2.b. No distinctive insignia
A.2.c Usually not carying arms openly
A.2.d Definitely not operating under the customs and laws of war
A.3 Not members of any regular armed forces recognized by the U.S. (the Detaining Power)
A.4 Not accompanying regular military forces.
A.5 Not members of merchant crews
A.6 Again, not carrying arms openly or respecting laws of war
B.1 Again, not having belonged to the regular armed forces of the occupied territory
B.2 Not detained in a neutral or non-beligerent, and not falling under any of the above categories

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 19, 05 19:28

Post #10 of 19 (1892 views)

You opinion as well as others.

The convention does not say it has to follow ALL of the list but ANY of the list.

Some of the detainees were directed by a leadership in a war against the United States.

Some of the detainees cetainly did openly carry weapons.

I have to go swim -- will continue this tomorrow.

Re: Federal Judge Dismisses Detainee Lawsuit [Sparticus] [ In reply to ]

Jan 19, 05 19:37

Post #11 of 19 (1891 views)

Actually, the conventions say that the persons must fit one of the numbered categories, but category 2 says that to qualify in that category, the person must "fulfil the following qualifications" and lists the 4 qualifications. So he must be under capable command, carry arms openly, wear a distinctive insignia, and conduct themselves in accordance with the laws of war, not pick and choose.

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 20, 05 5:56

Post #12 of 19 (1886 views)

It's my understanding that the majority of those detained at Gitmo were picked up in Afghanistan, not Iraq, and were comporting themselves quite differently than the Iraqi insurgents. This wasn't urban terrorism, it was open combat. Nevertheless, they are deemed by the Administration to be "enemy combatants" and are *not* protected by the Geneva Convention(s)?.

Constitution: Article III, Section 2:

"Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Note the last bit: "The judicial Power shall extend...between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Sounds like the Founding Fathers thought that foreigners had some standing in US courts (and protection under the Constitution).

----------------------------------
"Go yell at an M&M"

Re: Federal Judge Dismisses Detainee Lawsuit [klehner] [ In reply to ]

Jan 20, 05 6:11

Post #13 of 19 (1880 views)

That clause says that the Judical power extends to controversies between one of the United States (MD for example) and a foreign States or it's citizens. Go on to read that that section was changed by the 11th Amendment. Also notice I never siad these people don't have rights, I just said they aren't covered by the Consitution in a law suit against the U.S. or the military. On top of which, saying that the judicial power covers foreign citizens in suits against one of the States is not even close to saying that foreign citizens are "protected."

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 20, 05 7:11

Post #14 of 19 (1877 views)

You are doing a masterful job of putting forth the "right" side of this argument. Don't know if you will conert anyone or not but we can only hope. I guess I just don't understand the thought that what we (the US) does is wrong, bad, immoral, illegal etc. It doesn't matter whether the terrorists come from Iraq or Afghanistan or wherever. They have the same mission, kill as many Americans, military or civilian, as possible by whatever means possible. Call me insensitive but if there is one bit of a chance they have information that will save one American life then we should use whatever it takes to get it. I DO NOT believe in cruel and inhumane treatment. I think one problem with those on the other side of the argument is that they see some of the methods used as cruel and I don't.

Re: Federal Judge Dismisses Detainee Lawsuit [armytriguy] [ In reply to ]

Jan 20, 05 7:16

Post #15 of 19 (1875 views)

"Call me insensitive but if there is one bit of a chance they have information that will save one American life then we should use whatever it takes to get it"

Even if the person to whom "whatever it takes" is applied is innocent?

For the record, I don't think that everything this country does is immoral, wrong, etc. I'd just like to think that we hold ourselves to a high(er) standard.

----------------------------------
"Go yell at an M&M"

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 20, 05 7:59

Post #16 of 19 (1864 views)

my problem is that the judge essentially said these people are limbo. yes, they have rights under the ucmj and whatever laws congress decides to enact on the subject. BUT, what if the ucmj was altered to say that we could cut off a finger as a means of extracting info? according to this holding, there would be no recourse--these people are subject to the whims(for lack of a better word) of the military/congress without any constitutional constraints. it's a matter of the military's and congress' own sense of self-restraint as to what is done to the detainees(no i don't believe the military personnel are bad, i believe they are good people, but as seen with abu ghraib, sometimes ess happens). i understand the rationale--that the constitution isn't applicable to non-citizens in this fashion--but it doesn't seem to follow the spirit of the constitution/u.s.

f/k/a mclamb6

Re: Federal Judge Dismisses Detainee Lawsuit [mclamb6] [ In reply to ]

Jan 20, 05 8:11

Post #17 of 19 (1862 views)

I understand your concern, and it's valid. However, everything we do is subject to the laws Congress passes. Not every law passed is specifically allowed or prohibited by the Constitution. In theory, the laws passed regarding these issues are those that the citizens want passed, and if not, you elect a different Congressman and get the laws changed.

As for the spirit of the Consitution, I don't think this is out of line. We are citizens of the United States of America, and that citizenship comes with privileges enumerated in the Consitution. The document specifically doesn't give those privileges to non-citizens because it seeks to give added importance and honor to being a U.S. citizen. I have no problem passing a law that gives foreing detainees more rights, but we should also be able to pass a law that takes those rights away if that's what the populace wants. If we want to kick all foreigners out of the U.S. and close our borders, we should be able to do that.

Slowguy

(insert pithy phrase here...)

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 20, 05 8:18

Post #18 of 19 (1859 views)

This is a shocking statement, slowguy. Do you mean that the laws of this country are enacted by Congress as elected by the people through the democratic process?

Are you sure that we don't have laws passed by judges and trial lawyers since they are so much wiser than the great unwashed in flyover country?

I have to admit your descriptions sounds vaguely familiar, maybe from an old Civics class or something. How quaint.

Re: Federal Judge Dismisses Detainee Lawsuit [slowguy] [ In reply to ]

Jan 20, 05 9:50

Post #19 of 19 (1851 views)

In Reply To:

I understand your concern, and it's valid. However, everything we do is subject to the laws Congress passes. Not every law passed is specifically allowed or prohibited by the Constitution. In theory, the laws passed regarding these issues are those that the citizens want passed, and if not, you elect a different Congressman and get the laws changed.

As for the spirit of the Consitution, I don't think this is out of line. We are citizens of the United States of America, and that citizenship comes with privileges enumerated in the Consitution. The document specifically doesn't give those privileges to non-citizens because it seeks to give added importance and honor to being a U.S. citizen. I have no problem passing a law that gives foreing detainees more rights, but we should also be able to pass a law that takes those rights away if that's what the populace wants. If we want to kick all foreigners out of the U.S. and close our borders, we should be able to do that.

First statement I would like to make. Thanks Slow for getting me interested in this - I am reading more and edjucating myself. I admit lacking knowledge in this area but I am learning fast.

Second - I agree and even like that protection, privileges and honor gives great importance to being a US Citizen.

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