Geneva convention does not address Habeus Corpus for UNLAWFULL UNUNIFORMED comabants… which is part of the problem….

Uniformed Code of Military Justice is for Military perosnell… not UNUNIFORMED Combatants.
Romeo13 on June 16, 2008 at 4:14 PM

Romeo 13: I believe it is “Uniform Code of Military Justice”. Not Uniformed.

Standpoint of the Combatant Status Review Tribunals(”CSRT”) vs. prosecution under the Military Commissions is misunderstood.
The CSRTs were what all detainees were given starting I believe in 2004. The purpose of the CSRTs is to determine if detainees held within Guantanamo Bay have been correctly designated as “enemy combatants.” Issues with the CSRT’s were based on many points but the most salient were: 1) The CSRT informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified, 2) Detainees had no right to present witnesses or to cross-examine government witnesses, 3) detainees lacked counsel, 3) tribunal did not necessarily consist of persons with any legal training, 4) Tribunals did not have authority to determine a detainee was a Prisoner of War, and 5) Hearsay evidence was admissible in certain cases. The CSRT did not start from the stand point of: this detainee is innocent prove his guilt. Rather the CSRT’s purpose was: Was the government’s action in detaining this prisoner unwarrented. Even when the CSRT dtermined that a detainee was not an enemy combatant, the detainee has had to remain at GTMO because, no other country will take persons that our government labled as the “worst of the worst”.
The Detainee Treatment Act of 2005, sought to head off several Habeas petitions making their way through the District courts at the time. The Detainee Treatment Act of 2005 asserted that appeals of the determination of the CSRT could be heard by the DC Circuit court, but severely limited the scope of any such appeal. The Appeal would be limited to only whether or not the procedures set forth in the CSRT procedures manual had been followed by the CSRT panel in each indivisual case. Therefore, the Detainee Treatment Act of 2005 effectively stopped any appeal as to the inherent fairness and justice of the CSRT procedures itself.
The 2006 Military Commissions Act purported to strip jurisdiction for any court hearing habeas petitions of any alien who has been classified by the U.S. Government as an enemy combatant or is awaiting such classification. The Military Commission act also purported to set up tribunals for determination of charges brought against certain Detainees. The Military Commission Act addresses some of the issue/Criticisms that were brought up against hte 2005 act. The important difference for many is that under the military Commissions, detainees are finally being charged with something, whereas before they were (purportedly) held without anyone alleging any specific wrong actions/thoughts on their part. The CSRTs often did not allege any specific action on the part of the detainees, but made general allegations that were difficult and/or impossible to rebut.
So far I believe that 11 people have been charged under the Military Commission Act. All detainees in GTMO have had CSRTs.

New_Jersey_Buckeye on June 16, 2008 at 5:04 PM

IF we actualy followed the Geneva convention, as the majority of these guys were taken under arms, but not in uniform? We could just shoot them.
… enemies taken under arms in a combat zone…

Romeo13 on June 16, 2008 at 6:31 PM

On what do you base the assertion that the “majority of these guys were taken under arms.” Not all, or even a majority in GTMO, are “battlefield captures”. One study pegs ony 5% of the detainees in GTMO were captured by U.S. Military. A large majority of detainees were handed over to the U.S. Military after large bounties were offered. A lot of people were turned over to the Pakistani or Afghani officials in return for those bounties, and the Pakistani/Afghani dutifuly turned those people over to the U.S. Military. These were not battlefield captures but in some cases people snatched off a bus or out of their homes because of nothing more than being foreign and/or disliked by your neighbors.
In this same study, it was determined that 55% of the detainees had not committed any hostile acts against the United States or its coalition partners. This Study was based on the documents from Combatant Status Review Tribunals (CSRT) conducted since 2004.
Full Disclosure: This study was written by 2 attorneys that represent 2 detainees(possibly now former detainees) at GTMO. But the data that they based their study off of was the Government’s own CSRT documents. At the time of the release of this study, Cap’n Ed organized a blog swarm to analyze the same info analyzed by these attorneys to see if a different conclusion could be drawn. Unfortunately, I believe that Cap’n Ed ran into issues in bringing together all of the information that various volunteers had put together.

Furthermore, Habeas rights are not the same or equivalent to constitutional rights. Habeas rights are an older more “fundamental” right that is not referred to in the constitution other than to note that it can’t be abridged unless there is invasion or insurrection.
Finally, I agree the precedent regarding applying this case to other military bases is worrying. However, I believe the SCUS has endeavored to forestall that by noting the “unique circumstances” of GTMO several times. Whenever a legal opinion uses the term “unique” it usually connotes “one-off”. Additionally, the foreign bases that we have and the treaties that regulate those bases are different than what we got with the Platt treaty with Cuba.

New_Jersey_Buckeye on June 16, 2008 at 6:57 PM