Random political venting/rambling thread:

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Supreme Court justices can be impeached. Judges on lower courts are often elected to the bench and must run again every few years. There's always checks on power, much to Scalia and Cheney's chagrin.

 

Yes, it was. More so than you may think.

What was that comment about "activist judges," T2? Meet John Marshall:

It was the Marshall Court, under the Jefferson administration, that established the principle you are commenting on. It was not really setup that way at the beginning, contrary to what many believe:

...And there you have it - Activist judges at work....

 

I had actually forgotten that Justices could be impeached, too. Y'know, they really don't emphasis that in high school.

Anyway, as I understand it, the 'enemy combatant' terminology was not actually intended for the international areana, but rather to satiate the American masses. Remember, many of the people in Gitmo were not captured in combat, but in subsequent 'raids' or kidnappings. These would never have been prisoners of war, as they were not taken in combat. They would then have to be civilian prisoners being charged with crimes agianst the US (such suspects have been kidnapped from other nations to be tried in the US before), but that gives them all the rights and protections of civilian prisoners. But some of them were captured in combat, so they aren't. Well, to end all this confusion, and to give the gov't more leeway, they came up with the term 'enemy combatant' and started making up rules. Now, because the 4th through 8th amendments don't apply to US Citizens so much as US courts (read: non-citizens get them, too), it falls to the Supreme Court to determine whether or not these prisoners fall under their protections.

More than that, though, there have been a number of cases where the Supreme Court has banned certain laws as 'unconstitutional' because they simply want to. The whole 'right to privacy' bit that's being turned inside out these days is one example. Explain to me, please, how the Constitution's 'right to privacy' (No unreasonable search and siezure is the closest I could find) guarantees a woman the right to have an abortion? Now, I'm not even assuming that it's a bad thing here. Legally, they should have cited the 10th amendments and said that states have the right to make their own laws on the matter.

What's more, the right has been as guilty of this as the left, though not as recently. This isn't another right-wing claim of 'unfair', but just an examination of how things have actually worked vs how they were intended to work.

 

I've been thinking about where I eventually settle down (after living in the UK for a few more years), and am now considering the USA or Australia.

As much as the USA sometimes sounds appealing, I honestly dont know if I would like to live in a country where I may be discriminated against for being an atheist. Apparently this does happen, but depends on location (I'm guessing it wouldnt be a good idea for me to proclaim my beliefs in the Deep South in other words).

I've decided to visit the USA next year on holiday for a few weeks.

Well that was partly political - its the USA's current political climate that is potentially putting me off.

Politics in my home country - Jacob Zuma is sure to inherit the presidency, and there are mixed feelings about that. He did once imply that he thought having a shower after unprotected sex could prevent the transmission of the HIV virus, and is also being investigated for corruption. On the other hand, some say MBeki has been a terrible president, and Zuma, if he steals, is at least a little more honest about it. I dont know what to think.

here in the UK - I wish Ken Livingstone would listen to himself for a change. I dont own a car, but £25 a DAY for driving your 4x4 in the city is just extortion. Its just an extra tax on the rich - I have no doubt that the funds raised will not go to any green projects, like they should. And it would also be nice if the UK government supported their police force for a change - they need the power to search, they need to be armed with tazers at the very least, they need to take a tougher stance towards yobs and youths, and they need to get more personnel on the streets.

 

Very well said. Too many judges (including the supreme court) have finagled ways to make laws/rulings and conveniently ignore the 10th amendment.
For those who are not familiar with the 10th amendment

NOG is absolutely correct. In Roe V. Wade the court bent over backward trying to find a way to make it a federal issue where clearly it should have been a state's rights issue. If and when Roe V. Wade is overturned it will be back to a state decision and yes many states will declare abortion illegal, but many will not.

 

While I agree in prinicple with what you are saying Montressor, I do not think Mr. Filburn was being completely honest about the wheat being grown for the personal consumption of he and his family. The amount of wheat he grew in excess of his alotted amount was 239 bushels. If that was for personal consumption, he must have a really big family.

The other point the Court posited was that if Mr. Filburn was allowed to do this, then all farmers would be allowed to do this. Certainly Mr. Filbrun's own impact on the market by growing and extra 239 bushels of wheat was small, but the Court ruled that if everyone started doing it, the cumulative effect would be large.

The thing I don't get is why, in 1942, during the heart of WWII, where you'd think there would be a demand to produce as much wheat as possible that you would want to limit the amount of wheat farmers were growing? Also to reiterate, I don't think the government should have regulated what he chose to grow on his farm, even if I don't buy the "personal consumption" bit.

 

Doesn't the US constitution treat obligations under international treaties with the same strength as US law, however? I was under the impression this was the case, at least as far as the the Geneva Convention and the UN treaties were concerned: once ratified, they become a part of the country's legal system.

As for the entire activist judges thing, I think that's just an epithet hurled towards judges who support a point you don't. Mr. Scalia's positions on several issues involving the Bush administration seem a bit partisan to me, for example.

 

The Shaman you bring up a good point and I've tried to do further research on this. I initially misspoke in that treaty's are not adopted as law -- when a treaty is signed by the United States (typically the President) it is simply an agreement. Upon ratification by the Senate, the treaty does becomes law (my error here). Here the issue becomes fuzzy and the whole jurisdiction thing comes in to play.

If the agreement and subsequent ratification is challenged as unconstitutional, the Supreme Court can rule on it. The Supreme Court should be able to rule on laws inacted as a result of the treaty, but I do not believe they can rule on a violation of the treaty itself (one of our attorneys can override me here).

A violation of a treaty is tried in the proper jurisdictional court -- such as the International Court of Justice.​

Specific to this argument: Guantanamo Bay prison is either a violation of the treaty or it is not. There are provisions in the treaty itself that have specific requirements of military personnel. Those requirements were not followed by the Taliban and Al-Qaeda. The US has used those provisions to show prisoners at Guantanamo Bay do not fall under the articles of the Geneva Convention -- as such, the US has taken this out of the hands of the federal courts. These prisoners may fall under the provisions in the Geneva Convention for civilians (and I don't know if they do, I haven't completely read the provisions) -- but that has not been ratified by the senate.

In this case, because it is an issue of whether or not Guantanamo Bay violates the Geneva Convention, Justice Scalia was correct in saying it was not an issue for the Supreme Court.

 

I'm... not sure I follow your logic, T2Bruno.

First, if I read it right, the US has ratified the 4th Geneva convention, which deals with protection of civilians captured or under occupation by a foreign force. This page lists all countries that have ratified it, with any particular reservations that have been made upon the ratification. The way I understand it (given the US statement here) the USA ratified it, and all others, over 50 years ago, and it makes an exception only in reserving the right to use death punishment for crimes which were punishable by the same sentence before the territory or civilians were captured.

Anyway, I'm a bit confused about the logic you use in reasoning why the US supreme court can't interfere in Guantanamo. The US administration has made a claim that due to their status as pseudo-guerilla fighters, the people captured there do not qualify as prisoners of war. This claim is somewhat tricky in itself, I'll get back to that later. Yet even if the qualification is correct, the argument presupposes two things for it to be valid:

- the people there are not noncombatants either, or they should have fallen under the jurisdiction of the 4th convention. However, the release of nine British citizens without charges casts a shadow on this claim; if there were 9 people who were not proven to be combatants, enemy or otherwise, just how can we be sure the others are? There have been quite a few individual cases about people who were captured in an anti-terrorist operation whose links to any of the militias was suspect, like one AP reporter whose name I don't remember at present. It would thus be reasonable to infer that many Guantanamo detainees were at least at first only suspected of terrorist activities, which means that until proven such, they are to be treated as non-combatants. This, one could easily argue, was not the case - Guantanamo might not have been as bad as a classic GULag, but it didn't perfectly conform to the conventions either.

- they belonged to a group that did not abide by the convention (here I mean the 3rd convention, which deals with PoWs), and thus the US is not required to abide by it in their treatment (a possible reading of Article 2, available with the full text of the convention here). However, this part is also tricky. First of all, a signatory of the Convention must abide by the convention even if the other side is not a signatory to it, as long as the other side respects it. It is also explicitly mentioned that members of militias or other voluntary (para)military groups can be given PoW status if they meet certain requirements. This places the burden of proof on the US, and given how many militias and groups there are in Iraq and Afghanistan, it could be very hard to verify for individual members. Thus, if the US authorities are to dispense with any of the provisions there, they must be able to offer proof that not only was the detainee a member of militia/army/resistance movement so-and-so, but that this particular militia did not act according to the Convention.

Now, this can be a serious problem for the US authorities: this article means that a detainee can only be treated as something else than a legitimate prisoner of war after s/he has been determined not to be a PoW by a comptetent tribunal. IIRC such tribunals were only formed a few years after the invasions of Afghanistan and Iraq (and given that many people were acquitted, I would say that there were no prior tribunals before that, secret or otherwise). This would mean that the situation at Guantanamo constituted a major breach of the 3rd convention, at least for a time.

As you can see, there are already a lot of situations where treatment of prisoners in Guantanamo or elsewhere can violate the ratified conventions, and thus be a legitimate area for the Supreme Court to decide on. I'm not sure just what the current situation is, but in general the Supreme Court can interfere in certain scenarios.

On the other hand, some legal scholars refuse the term "enemy combatants" in the first place; this point of view can be found here. They claim that a person is either a prisoner of war, and covered by the third convention, or a civilian, and covered by the 4th. Thus, they say, persons tried for terrorism who were not members of a recognized fighting force should be tried as civilian criminals, and as such they are entitled to the usual judicial proceedings that determine their guilt. BTW, the HRW paper is interesting in that it also offers examples of how the USA has proceeded with such tribunals previously, from Vietnam to Desert Storm.

 

I'm wrong yet again... there are a couple of portions of the Geneva Convention that have not been ratified yet (submitted to the Senate in 1977 or some such). I did not read the description close enough.

However, my point is the classification of the prisoners is a sticky situation (for the reasons you stipulate). The Articles of the Geneva Convention allowed this ambiguity. I agree this is is probably political machinations by the Bush administration, but it is up to the International Court to offer an interpretation of the Treaty -- not the US Supreme Court. Any interpretation of the Articles of the Geneva Convention by the Supreme Court would be considered invalid by many countries of the world.

 

That power can be expressed through any number of agents, including the federal government. In fact, many believe that the FG is more expressive of what the "People" demand as a whole, rather than what they receive from their local governments. There is a great source for that belief: James Madison.

It's hard to believe, but a few of the Founding Brothers knew, from practical experience, that all the agencies of government, including the federal govenment, were vital and had to be balanced against each other, or sometimes with each other, for the People to get a meaningful representative government.

 

Shaman,
hat tip for doing an excellent job

T2,
if the combatant issue was so unclear there would have been uncertainty about the question in Vietnam, another Guerilla war, but, alas, there wasn't, and that's not an accident. The conventions aren't ambiguous at all but utterly clear: You're either Third or Fourth Geneva protected. End of story. And that only changed when the Bushies came along and falsely claimed controversy and ambiguity where there was none, against the global consensus (including the pre-Bush US) of half a century on the conventions. It's just that the Bush administration tells an uninformed populace about this fictious 'ambiguity' with a straight face and no scruples. They are just lying when they say that reasonable people can disagree on this, or on torture for that instance, and you know, as if there is, say, a liberal or a conservative take on the issue of Geneva or the issue of torture or some other such nonsense.

 

Well, you're far more likely to be blatantly discriminated against if you're religious than if you're an atheist, but that's still about as likely as being attacked by a shark (1 person was killed by a shark in 2007, and I think 15 other attacks were reported, worldwide).

I would also liek to point out that, while Bush and his crew may have started this, and may still be at the forefront, Congress has blatantly refused to deal with it as well, and now we see the Supreme Court following suit. That isn't even 'falling in line' or anything. They're in power until they decide they aren't anymore or they do something so HORRENDOUSLY bad as to get impeached by Congress.

 

That's how I interpreted it. In order for me to disagree with this, I'd have to see an example of someone who didn't fall under either category, and I can't envision such a thing. You're either a soldier (and thus the Third would apply) or you're not a soldier (and thus the Fourth would apply). Certainly the intent of the Geneva Convention was to cover everyone, and they did not anticipate someone making up a third atrificial category. It seems obvious, but logic dictates that you either a member of the military or you are not. There's no way to be both, and there's no way to be neither.

 

It's not black and white.

There are very specific requirements for an individual to be considered a combatant -- there must be a structured chain of command and they must be readily identifyable as a soldier (i.e., have a uniform of some sort). To be conducting enemy operations, without such identifying outer wear, does not automatically classify the individual as a civilian. If the combatant does not conform to the rules, they do not get the protection of those rules. There are a few provisions in the Geneva Convention to deny protection (such as articles 3 and 5). Spies, in particular, can have certain rights deprived normally afforded to protected prisoners -- they can even be executed.

The Bush administration has basically put terrorists in similar category as spies. This is a unique interpretation of the rules and one that is not likely going to be argued against by most countries that have problems with terrorists. I think it's actually a very good argument that terrorism was not considered when drafting the Articles of the Geneva Convention and there needs to be a separate category. The US has set a precedence that no other government appears to want to overturn.

Whether or not that is right is a different issue which I am not presenting here. I have been stating, over and over again, this is an issue for the International Court to rule upon -- this is not the jurisdiction of the US Supreme Court.

 

It's not black and white whether someone captured in Iraq, Afghanistan, et al., is a civilian or a soldier, but it is very much black and white that every individual either is or is not a soldier. You must be one, and you cannot be both. While deciding whether they are covered under the Third or Fourth GC may prove difficult, stating that they are covered under neither is clearly an attempt to circumvent the GC, and should not be tolerated. What the Bush administration is doing is saying that because we can't decide which protections you should get, that you will get no protections.

 

Sorry Aldeth, both the third and fourth Geneva Convention define protected status. And specifically exclude some individuals from protected status. Being excluded from the protection of one convention does not automatically mean you get protected in the other. Soldiers cannot wear disguises -- they can camouflage, but they cannot dress as civilians or member of the opposing force -- to commit acts of war, while disguised, removes ALL protections the third Geneva Convention offers. Such an individual is NOT protected under the fourth Geneva Convention either. Isn't this as it should be?

 

Too bad the example you give is not what's happening in reality. You may have a point if the enemy combatants in Gitmo were members of the Iraqi army that dressed up as civilians to attack US troops.

OK, that was a bit too sarcastic. I understand your broader point i.e., that it is possible for someone to fall outside of the bounds of the GC. However, that situation you brought up is a hypotethical one - there is no evidence that this is what happened.

Which brings me to the specific point - most of the evidence points to the fact that these people were NOT part of the military. That they may have received military training in camps, but were not part of a nation's army. How does the GC address guerilla warfare? How does the GC address the possibility of a civilian populace taking up arms against an occupational force? Given the resistance movements throughout Europe during WWII, I find it incomprehensible that the GC is mute on such topics.

If you want to make the arguement that enemy combatants don't fit into either category because they aren't entirely military and aren't entirely civilian, you'd have a better case. Perhaps the problem is that you didn't give the best examples. So far you've offered up spies and enemy soldiers deliberately disguising themselves as civilians as exceptions to the GC - neither of which applies to the enemy combatants being held in Gitmo.