Posted on 07/02/2006 1:12:37 PM PDT by NormsRevenge
WASHINGTON - Sen. Mitch McConnell (news, bio, voting record), R-Ky., said Sunday that Congress must address the Supreme Court's "very disturbing" finding that international law applies to the Bush administration's conduct of the war on terror.
Thursday's Supreme Court ruling embracing Article 3 of the Geneva Accords in the military commission case of Osama bin Laden's former driver strikes at the heart of the White House's legal position in the war on al-Qaida.
McConnell, the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes.
"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press."
Sen. John McCain (news, bio, voting record), R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists."
Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is.
Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.
McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses another aspect of the court's ruling overturning President Bush's military commissions created to try a limited number of detainees from Guantanamo Bay.
"I don't think we're going to pass something that's going to have our military servicemen subject to some kind of international rules," said McConnell.
Addressing the commission issue, McCain and Senate Judiciary Committee chairman Arlen Specter, R-Pa., said Congress might pose broader changes than the White House wants in trials of detainees at Guantanamo Bay.
As a starting point for debate, McCain said Congress should embrace the Uniform Code of Military Justice, the bedrock of military law protecting the rights of accused soldiers. The Bush administration has sidestepped the code for nearly five years in dealing with Guantanamo Bay prisoners it has classified as enemy combatants.
Specter said that "we have to reconcile" what the Bush administration thinks it can do and what the Supreme Court decision says.
Specter spoke on CBS's "Face the Nation" and McCain appeared on ABC's "This Week."
Many Republicans in Congress say detainees in the war on terror should not have the same legal protections as those in the military and that Congress should give its imprimatur with little or no change to the Pentagon's military commissions.
McCain agreed that justice afforded to enemy combatants "shouldn't be exactly the same as applied to a member of the military." He added, however, that the Uniform Code of Military Justice is "a good framework.
"Using the guidelines laid down by the Supreme Court, we can make sure that bad guys — and there are bad guys — are not released and those who deserve to be released will be," said McCain, a prisoner of war during the Vietnam conflict.
McCain and Specter added their voices to that of Senate Armed Services Committee chairman John Warner, R-Va., who says he is uncertain Congress should pass legislation to create new military tribunals.
"Everybody says, 'Pass legislation, pass legislation,' but we've got to make certain it's needed, and then do it with careful analysis, to get it right," Warner told The New York Times on Friday.
The Supreme Court said Bush's military commissions violate the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. Under military commission rules, the court noted, such panels may block an accused and his civilian lawyer from ever learning of evidence the prosecution presents that is classified. In addition, commissions can permit the admission of any evidence it deems to have probative value to a reasonable person.
Lt. Cmdr Charles Swift and attorney Neal Katyal, left, talk to reporters outside the Supreme Court in Washington Thursday, June 29, 2006, after the court ruled to limit the Bush administration's powers to conduct military tribunals for suspected terrorists imprisioned at Guantanamo Bay, Cuba. (AP Photo/Dennis Cook)
Plus, it gives the republicans the added advantage to run on the need to reign in activist courts. Kennedy really screwed up by aligning himself with the left-wingers; had he not, it would have been a tie, and the lower court ruling would have stood. Shame on him for saying the OBL and his thugs, who kidnap, mutilate and murder our troops, should be treated under Geneva.
Any legal beagles out there? Can the supremes reverse themselves? Can Kennedy write an addendum that states he does not support the geneva convention part of the final decision?
The Supreme Court could rehear the case. They will most likely deny the petition for rehearing and the decision will stand until someone dies or retires and Bush gets to replace them. I haven't read the decision, but I understand that the Kennedy concurrence is more narrow in scope than the Stevens plurality opinion.
Another ratmedia fantasy headline. This decision won't beat us. The rat will see this turned into a poison pill he will have to vote on. Count on it. alan simpson's "stupid party" is way to smart to let this opportunity go by.
I don't know about anyone else, but as for me, I think it's time for some traitors to go to jail -- I don't even care where we start. The NYT would be one place, but the SCOTUS might be just as good, or the US Congress.
I KNOW this isn't going to happen, but that only makes me more angry.
Senator McConnell needs to worry too about what his Kentucky voters think of him joining the looney liberals to defeat by one vote the flag protection amendment.
Mitch McConnell, a key failure.
Thank you for your response.
Next the Supreme Court will demand that we sign a treaty with extraterrestrials.
Does anyone know who argued the case for the Admin? Whoever it was is not much of a lawyer, and I sure don't want to see him or her nominated as a judge anywhere.
The Supreme Court can always:
A)Reverse a previous precedent, but that would need happen in a new case. They could issue a new ruling.
OR
B)They can depublish an opinion. Which --I think-- would nullify it. Doesn't happen that much.
Cases are mostly decided on the basis of the written briefs the respective parties submit in support of their position. Usually the hearing has little effect on the descsion. But, regardless the brief was written-- In all likelihood-- by a team of lawyers.
If anybody should be fired, it would be the whole team. But that misses the point. You can have the best legal arguements int the world, if the Court is determined to rule in a certain way, it matters not. What should be done is:
A)Impeach some of the Supremes .(Unfourtanely this opens a huge can of worms, as there has not been a SCOTUS impeachment for almost 200 years, and further if it done now, it would lay a precednt for a Dem Congress to impeach one of the conservative Justices.)
B) Use Congress to out-legislate the SCOTUS.
C) (My personal favorite)Withdraw from Geneva Conventions, and the whole UN.
I am one such Kentucky voter and I agree.
We have too many RINO's in the Senate, we don't need McConnell to go over to the dark side as well.
I never heard of this "depublish" thing. Tell us some examples?
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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The US has signed the Geneva Accords, and as I understand it, that makes Geneva a part of the "Supreme Law" of the USA. Is that correct?
Gawd, the spin is so fast it gives you motion sickness. Most people I talk to look at this and shake their heads at how obviously stupid and leftist this decision is on it's face.
In flyover country we speak the same plain English the Geneva conventions are written in and don't need overeducated ivy league black robes to tell us up is down.
The spin is not the most disturbing part. That ruling, located at: http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf , has at least one huge glaring error.
For non-signatories to be be covered by the Geneva Convention Articles, they have to adopt and abide by it.
I'm not legal eagle, but I would think that torturing and beheading captured American soldiers, isn't exactly abiliding by the Geneva Convertion Articles. Additionally, I'm mistified as to how they could write such an opinion: 1) with Article 2 quoted (hoping no one would notice, just completely and totally arrogant, or STUPID)
2) Knowing what the extremists do to our captured troops
Here's a snip of section 4(d)ii:
Common Article 3, which appears in all four Conventions, pro-vides that, in a “conflict not of an international character occurring inthe territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court af-fording all the judicial guarantees . . . recognized as indispensable bycivilized peoples. The D. C. Circuit ruled Common Article 3 inappli-cable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character. ”That reasoning is erroneous. That the quoted phrase bears its literalmeaning and is used here in contradistinction to a conflict betweennations is demonstrated by Common Article 2, which limits its ownapplication to any armed conflict between signatories and providesthat signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsig-natory “accepts and applies” those terms.
I may have misspoken. Now I'm not so sure that the SCOTUS can depublish an opinion. I know other courts can. The SC of CA. does it all the time. Basically it means that the opinion is non-binding on other parties. I'm not sure if Federal courts Depublish opinions. Perhaps somebody else here knows?
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.