Posted on 11/10/2004 7:50:26 AM PST by RebelTex
---snip---
Anyway, the military tribunal was all set to try Hamdan when U.S. District Court Judge James Robertson ruled the Bush administration had no right to declare the man an enemy combatant. Robertson went on to say Hamdan should be classified a prisoner of war and given Geneva Convention protections
Robertson ruled this despite these facts: Hamdan was not fighting for any country, Hamdan wore no uniform on the battlefield, Hamdan was a member of at least one terrorist group, possibly two.
Judge Robertson also ruled that the Geneva Convention protections supersede any presidential order or designation by military tribunal. In effect, the judge saying that all captured foreign terrorists are prisoners of war.
This, of course, is insane and would make prosecuting terrorists almost impossible.
---snip---
(Excerpt) Read more at foxnews.com ...
Write or call your senator. Start a blog, become active.
I seem to recall him from the clinton scandal?
Mike
Who nominated him?? Clinton or Carter??
He also could stand to actually READ the "Geneva Conventions", before citing them as precedent. As I understand them, those conventions apply only to uniformed soldiers fighting as part of an organized army. "Insurgents" (correctly=terrorists) appear not to be covered.
Clinton
Not surprisingly, O'Reilly distorted the facts. What the judge ACTUALLY ruled is that until a competent tribunal determines whether or not he is eligible for POW status, he can only be charged by court-martial. A competent tribunal means one that is designed to assess a prisoner's status under the Geneva Convention.
This judge needs to be subjected to a rigorous psychological analysis.
link:
http://www.cnn.com/ALLPOLITICS/1998/07/01/hubbell/ruling/
Charges Dropped Against Hubbell
U.S. District Judge James Robertson dismissed tax evasion charges against former Justice Department official and presidential friend Webster Hubbell, calling the indictment brought by Independent Counsel Ken Starr "the quintessential fishing expedition." Also cleared were Hubbell's wife Suzanna, his accountant Michael Schaufele, and his tax attorney Charles Owen, the court confirmed.
Isn't "enemy combatant" just the Bush Administration's way of suspending Habeas Corpus? Unfortunately for Jorge, only the Congress is authorized to suspend Habeas Corpus. If Congress had GIVEN the president this power for the purpose of fighting terrorism, I would be more than happy to label the suspected terrorist an "enemy combatant" and be done with it.
All the Geneva Convention BS aside, the judge is right about the "enemy combatant" designation; Bush currently does not have that right. However, if this judge is a judicial activist in general, that is yet another reason not to allow Arlen Specter to chair the judiciary committee.
more on the judge:
http://www.earthjustice.org/news/display.html?ID=809
Court Upholds Wetlands Protections
Developers fail in attempt to undermine federal rule
March 31st, 2004
Contact Info:
Howard Fox/Cat Lazaroff, Earthjustice, 202-667-4500
Wendy Balazik, Sierra Club, 202-675-2383
Julie Sibbing, National Wildlife Federation, 202-797-6832
Print-Friendly Version
Washington DC-- In a victory for strong protections for our nation’s waters, a federal judge today rejected industry challenges to a key Clean Water Act rule that protects wetlands and streams from unpermitted destruction. The ruling from Judge James Robertson in the U.S. District Court for the District of Columbia will help to prevent damage to the country’s wetlands and streams resulting from landclearing, ditching, and mining.
Nice rant. However, I'm not sure that limited terms for these federal judges & Supreme Court would be good. IMHO, this would politicize the courts even more. We just need to be more vocal and demand impeachment for activist judges.
As I recall, we are not a party to the Geneva Conventions.
Seems odd that they would be applied to our legal system.
Oops, sorry, forgot about the agenda thing.....
The US has ratified most elements of the 1950 protocols of the convention. There is a notation that suggests we have made some sort of statement that we won't uphold some provision or another (I hadn't figured out what -- the Intl Red Cross site didn't say). There have been two further updates to the Geneva Conventions since then, and the US has ratified neither.
This judge may be correct, though, for Treaty Law does indeed supercede US law -- even the Constitution itself. That, of course is why the DEMs desparately wasnt to use the UN and Treaty Law to make a bunch of things "legal" that they cannot pass in our legislatures. Treaty Law is a very dangerous thing.
This jugde must be impeached.
He threw out the case against Hubbel resulting in the loss of leverage against him and his not testifying against Clinton.
On what do you base this conclusion. The Constitution does give the power to make treaties to the president, but then treaties have to be ratified by congress before being upheld and in force. However, treaties can be, have been, and are broken. Just look at history. (For example: most treaties with Indian tribes/nations have been broken.)
Broken treaties often lead to war, so the consequences are grave - but sometimes justified and necessary.
We cannot accept the premise that treaty law, or for that matter the UN or any other countries laws, supersede the US Constitution.
"This judge may be correct, though, for Treaty Law does indeed supercede US law -- even the Constitution itself."
Actually, no. There is provision made to consider any treaty law as domestic law, however that may be overridden by Congress as may any other law as passed by the Congress or previous Congress. In no case may the substance of any treaty override the Constitution itself as the US Supreme Court has stated in its rulings on treaty cases. Otherwise you could get a situation under your thesis that a future President could negotiate a treaty which forbade the ownership or possession of any firearms by US citizens, thereby negating the 2nd Amendment with his signature and the concurrence of two-thirds of the US Senate.
Can't happen.
dvwjr
If this "judge" understood the Geneva Convention, he'd know that it confers few if any "protections" to terrorists and criminals (other than the right to be humanely detained while their status is being determined). There are provisions covering "partisans" dressed in civilian clothing, but that partisan status is denied to terrorists and criminals.
My understanding is that you start out (in warfare) with a generic “enemy combatant.”
If he meets certain conditions, he may qualify as a lawful enemy combatant.
The conditions have evolved over the years (and centuries), but among other things you must wear a uniform that distinguishes you from non-combatants, must display some sort of insignia that represents rank, must have some sort of ID that identifies you uniquely, must carry arms openly, must avoid mingling among civilians or mounting attacks against civilians or hospitals or churches or schools… a lot of things.
If you do those things, you are a lawful enemy combatant. A lawful enemy combatant can become a prisoner of war because of his lawful status.
If you don’t do those things – if you dress as a non-combatant and mingle among non-combatants to disguise your intentions while acting in a belligerent manner, if you mount attacks from (or attack) churches, hospitals, or schools, if you carry concealed weapons, if you do not carry identification or display rank, OR if you pose as a non-combatant while passing information or materials to a hostile entity from behind enemy lines – any of those things – you are unlawful.
The unlawful combatant does not (and can not) be a prisoner of war due to the fact that they were unlawful. You MUST be lawful to be a POW.
Congress does not determine lawful/unlawful. A district judge also doesn’t determine lawful/unlawful. Whether/not a person is lawful/unlawful is determined by that individual and how they conducted themselves.
It’s also been decided by the USSC that the military certainly does (and can) execute unlawful enemy combatants and has legitimate jurisdiction to do so since the unlawful combatant broke laws of warfare – not a city code or county ordinance or even (necessarily) US criminal code. They broke laws of warfare and punishment for that properly belongs in a military setting.
USSC decided that the military can properly conduct a tribunal and execute such a person (regardless of citizenship), but strongly implied that they didn’t necessarily need to do even that. That the unlawful enemy combatant didn’t necessarily warrant a tribunal, lawyer, or anything else. They essentially implied that he can be properly executed with no trial-type formalities at all – just because of his unlawful conduct.
That’s pretty much how I remember it.
This ruling is so blatantly wrong that it stands no chance of being upheld. And this judge should be impeached.
This is, IMO, more truly undisputed evidence of the arrogance and vitrioloic behavior of liberals who sit on the bench, and at this point looks driven by not only their hatred for GWB and their anger over losing the election, but also what Rush calls the action trigger to drive Democrats and liberals to get moving on issues - the "FORS syndrome" - "Fear Of Republican Success"!
You can bet this appeal will be fast-tracked. Odds are that the USSC will slap this judge down and overrule him. Hope so, anyway.
All international treaties, as far as I know, are between sovereign states. Terrorists are by definition operating outside the state framework like the pirates & freebooters of old. Any nation is perfectly within their rights to execute a terrorist on the battlefield if they so chose.
I suggest that the only reason that we haven't done so before now is in the hopes that the terrorist enemy will reciprocate should some of our troops fall into their hands. It's a weak hope in my opinion.
Ruling is wrong on a number of counts:
Geneva Accords only apply to certain people:
First, It applies to members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population (wearing uniforms or insignia), carry their arms openly (they try to hide them), and obey the laws of war (they do not, rapes, executions, etc.)
These guys do not qualify.
Secondly, they are not part of a recognised NATIONAL force. Uniformed Ku Klux Klansmen do not qualify for POW status if they commit a crime.
Thirdly, the organization to which they "belong" is not a signatory to the accords.
AMF
US Constitution, Article 3, Section 2, Clause 1 (power of the judiciary): 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;
I overstated my point -- the Constitution does not appear to be superceded by treaty. They appear to have equal standing. So the upshot is that Treaty Law discussing matters not specifically covered in the Constitution would become the law of the land.
Insofar as International Courts are concerned, this is a direct threat against the UNited States IF we ever allow ourselves - through treaty - to become subject to those courts. Then the floodgates are opened.
However, I included the Article 3 item to indicate the jurisdiction that a (US) federal judge would appear to have concerning treaties. That notwithstanding, I do not know whether it is his call to determine whether and when to apply a given treaty to this situation.
Agree with both of you: this is a question of application, and that's where this judge appears to be out of step with reality.
The judge is just one of the many "domestic emenies," as in "protection against all enemies, both foreign and domestic!"
NOTHING supercedes our Constitution. Whether or not a treaty requires approval from Congress depends on if it is "self executing." This judge ruled that the Geneva accords were self executing, meaning it did not need Congressional approval. Therefore he was able to pick out any provision whether we ratified it or not to use for his opinion.
I have not read all of the opinion, but there are several points of appeal from what we have discussed.
This judge sounds like an enemy combatant.
I saw this last night on O'Reilly (yeah, yeah...I was at my dad's and he still religiously watches it). Anyway, right as Bill started the story, my dad and I said "Clinton probably appointed this a-hole" they flashed the judge's profile and--sure enough, he's a Clinton appointee...
The US did sign on to the original Geneva Conventions. However, since the terror war started (ie, within the last 25 years) there have been two addenda to the original conventions which advantage terror combatants. (source: National Review, recent issue) These we have NOT signed on to. This judge may have decided, on his own, that we SHOULD adhere to the addenda, even so.
Treaties have the same power as a Congressionally enacted statute. Both are subordinate to the Constitution.
But the present Supreme Court showed in Rasul v. Bush that such details won't stop them from going the way you indicate - they'll just ignore anything the Constitution says they don't like, without explanation, as they interpreted the habeas statute and constitutional separation of powers in Rasul.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;..."
Also: here are the sources of the info I found indicating that the US has indeed ratified the Geneva Conventions treaty -- at least a part of it. Beyond this, I still believe the judge is out of line. I do not dispute that for a second.
http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/party_gc/$File/Conventions%20de%20GenSve%20et%20Protocoles%20additionnels%20ENG-logo.pdf
http://ask.yahoo.com/ask/20020212.html
http://www.ccmep.org/2004_articles/civil%20liberties/052404_hrw.htm
It appears that the US ratified the accords in 1955.
"... and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Sheesh - no wonder we need Constitutional lawyers... cheers.
Yep. I can only assume that somebody phoned in a summary of the ruling to O'Reilly, and he (having the wrong idea about what sort of call he was taking) started breathing heavily and didn't quite hear the message correctly.
WTF? You are seriously misreading Clause 2 of Article VI. It says treaties are like the Constitution and Federal law in that they all three trump anything in state constitutions or state law. It says nothing about them being above the Constitution itself. Where it says: "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." it for the sake of brevity leaves out "any Thing in the Constitution [of any State] or Laws of any State to the Contrary notwithstanding." It does not say "any Thing in the [Federal United States] Constitution or Laws of any State to the Contrary notwithstanding."
They may not qualify under the 3rd Geneva Convention dealing with POWs, but they might qualify under the 4th Geneva Convention dealing with civilians under the control of the military.
It simply means that all three (the Constitution, federal law, and treaties) are above state law. Remember that states rights were very big then and the Constitution was defining where state law left off and federal law took over. It wanted to emphasize that states are bound to adhere to treaty law just like the federal government is. That is for instance, Massachussetts could not claim that a treaty signed by the President and a foreign state was inapplicable to Massachussetts.
hmmmm
Did someone just call my tagline?
About time for this again:
__________________________________________________________
 by David HorowitzHardcover - (September 2004) - $27.95 In this tour de force on the most important issue of our time, David Horowitz, confronts the paradox of how so many Americans, including the leadership of the Democratic Party, could turn against the War on Terror. He finds an answer in a political Left that shares a view of America as the “Great Satan” with America’s radical Islamic enemies.    |
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.