Feinstein: The court's opinion was a very major opinion. An essentially what it said was that the President exceeded his authority with setting up this commission, and that he can't just establish a commission, that anything that tries these people has to be authorized by the congress. And that goes back to Article I of the Constitution that gives Congress the right to declare war, and establish the rules.
Stephanopolous: And what kind of rules do you think the Congress should establish. How much protection do these detainees deserve? Do they get what's in the uniform code of military justice, or do they get something less, or something that would conform to the Geneva Convention?And Feinstein is exactly correct. From the Majority Opinion in Hamdan.
Feinstein: Well according to the decision I think there are two things. The first, it has to meet the parameters of the Uniform Code of Military Justice and the second thing is that it has to meet Article 3 of the Geneva Conventions, which spells out treatment in non-state types of war.
The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.John McCain on the other hand - isn't even getting close enough to sniff it.
Stephanopolous: The First question, of course, is what to do with these detainees and military tribunals? The Chairman of the Senate Armes Services Commitee this week said "Just putting them throught the Courts Marshall system will work". Which approach makes more sense to you?Bzzt. That is incorrect Senator. They didn't call for a "UCMJ type framework" they said specifically that Geneva has to be abided, and Geneva requires that all persons being tried for War Crimes be handled by a regularly convened tribunal. From Glenn Greenwald.
McCain: Well, uh, the thing that, uh, makes sense to me with the Judiciary and Armed Services committe hearings. We're gonna having hearings, we're gonna examine the court decision very carefully. Uh, obviously they called for a UCMJ type framework.
Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."Therefore, Special Tribunals with Special Rules for Special Classes of individuals are out of the question.
McCain: There were basically three parts, as I understand it, of this decision. 1) Congress should play a role, and I certainly agree with that 2) That the Uniform Code of Military Justice should be the framework for these tribunals and 3) uh, Article 3 of the Geneva Conventions calls for certain treatment of these detainees which is, uh, somewhat of a departure in my view of people who are stateless terrorists.Bzzzt! That's two strikes Senator.
Article 3 of Geneva sets the quality of treatment that will be afforded, Article 4 establishes who is covered, but it's Article 5 that is most relevant. It establishes the following:
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.Media Matters also addressed this issue long before Hamdan.
Fourth Geneva Convention provides protection for "Civilians" which would include "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.It's not a matter of granting Al Qaeda or the Taliban Geneva protections - they already have it by default - the question is whether or not America is going to abide by Geneva or not?
Moreover, current U.S. Law in the form of 18 USC § 2441 requires that Geneva Conventions be followed and designates failure to do so as a War Crime.
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(c) Definition.— As used in this section the term “war crime” means any conduct—(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
Stephanopolous to Feinsten: Are you worried that this will become a political issue? You California collegeue in the House said that "This decision reaffirms the basic ideal that ALL are guaranteed to the basic protections of our justice system", which drew a sharp response from the House Majority Leader, John Boehner, who put out a statement saying that "Capitol Hill Democrats advocate Special Priviledges for Terrorists. Al Qaeda, who terrorist thugs are not a part to nor bound by the Geneva Conventions, is surely pleased at the show of Capitol Hill Democrats". Aid and comfort to Al Qaeda from Capitol Hill Democrats according to the Republicans?The idea that requiring the same consistent process to be followed for all military defendants - including members of Al Qeada - is somehow granting "Special Rights" is just plain ridiculous, and a very dangerous idea. Senator Feinstein is absolutely correct, we have virilently reject this notion - it's poisonous to the very foundations of our Democracy and the ideals of "Liberty and Justice - for all." We can have neither Justice nor Liberty if some people are above the law (the President and his staff) while others (Al Qaeda/Taliban) are below it.
Feinstein: Well, I think the American People knew exacly what Leader Pelosi was saying. I think her comment has been distorted, particularly by talk show hosts, and I think that is really unfortunate. We're at a kind of important Constitutional Nexus right now. The whole strength of our Democracy is our Constitution. I took an oath to defend the Constitution against all enemies. The Constitution is a living sound document, that when followed, keeps us on a straight and narrow path. I think Republicans will rue the day, if they politicize this.
Meanwhile some Republicans are flat out thumbing their noses at the SCOTUS as well as Geneva.
Stephanopolous: Some Republicans are saying they want the debate over whether enemy Combatants or detainees should have the same protections as our military, and their talking about passing a resolution that simply re-authorizes the President's program as is - and dares Democrats to oppose it.
McCain: Well' I I, think it shouldn't be exactly the same as what is applied to a member of the military, but it's a good framework. And I don't think the Supreme Court said it had to be exact.
Bzzzt - Strike Three! Well - no, that's a tip foul - this really the same false point as his first one. Play on...
McCain: We have a Lindsey Graham who is a reserve Jag Officer, we have a lot of talent in the Congress - I see no reason why we can't work this out. We were stuck, and this gives us an oppurtunity to move forward. I don't quite understand all of the Article 3, Geneva Conventions part of it - but we did pass a law already that prohibited torture, cruel, inhuman or degrading treatment.Besides the rather frightening admission that John McCain, author of the Detainee Treatment Act of 2005 doesn't understand the Geneva Conventions - it's also important to point out that the same law featured an Amendment, co-sponsored by Lindsey Graham, which tried to prohibit the court from accepting petitions on behalf of detainees at Gitmo who actually might have been tortured or received cruel, inhumane or degradign treatment. Such a lovely law he and Lindsey made there - one that can't possibly be enforced. Yes, that Lindsey Graham sure is a talented fellow.
Speaking of Above the Law, the contrast on McCain and Feinstein's reaction on whether this decision has ramifications on the NSA Domestic Spying program was also quite telling.
Stephanopolous: Doesn't this decision call into question the President's Terrorist Surveillance program?Nice feint and redirect, sir - always blame the media - yes, well played. Feinstein on this same point:
McCain: Umm....I, I don't.. I don't think that this particularly applies. I think this was directly related to the situation with detainees. We'll have an ongoing debate, ranging from what programs should go on without the consultation of congress to whether the New York Times should have divulged the sensitive program tracking finances.
Where I differ from Senator McCain: I do think this applies to the terrorist surveillance program," she said. "I've been briefed on that program, and I do beleive that it can be brought under the parameters of [the FISA court]. And should be, all of it. The specific collection of information as well as the meta-data parts.Wouldn't that be something - a President that followed the law and the Constitution?
I have seen nothing in the program that wouldn't allowfor all content collection to be with a warrant, and all meta-data to be with a program warrant.
The overwhelming signifigance of this is that the president is somewhat bridled by the Constitution and the law … and he must follow this in this war on terror.
Later in the program during the Roundtable discussion former Republican Senator, and sometimes actor on Flaw and Disorder, Fred Thompson claimed that this decision is very narrow and that they simply needed to address the issue of removing the witness from the room during the presentation of classified evidence.
I think he's wrong that the issue is narrow as was pointed out by Senator Feinstein, but in terms of the tribunal procedures - what clearly needs to occur is that security protocols need to be added to the existing standard military tribunal/court marshal procedure. If neccesary I suggest that a temporary Interim Clearance be granted to the detainee, if he agrees to sign the customary non-disclosure agreement, which would allow him to be in the room while that evidence is presented as required by Geneva.
If he fails to sign, he can not be present and if he is ever released he is still bound by the agreement - if he fails to honor it he can be prosecuted for violating national security. I doubt Geneva would allow for such a conditional situation, but it's worth considering - at least if the issue really is the divulging of sensitive information. But it's possible that this actually has to do with the divuling of sources and methods which may not have been legal, such as the use of torture against one detainee to generate an allegation against another. Such illegally gathered evidence would be inadmissable in a standard court, and even within a normal Military Tribunal, hence the big fight over the Special Tribunals where the normal rules don't apply, illegally gathered evidence, include coerced allegations and confessions can be used.
From my understanding of the deision before any detainee can be tried, under Geneava, his status would need to be determined as a POW or not. You can't make up an imaginary status like "Enemy Combantant" to duck around Geneva or U.S. Law. If they are a POW they can be held until hostilities end - or in this case, indefinately. If they have commited War Crimes, they can be tried by the regular Military Courts, with upgraded security provisions. If they are not POW's, they must be remanded to civil courts and tried as Moussoui was - or else released.
The point is as Secretary Powell pointed out as he dissented to the adoption of this policy - it puts our troops in danger. This fact may have been most clearly illustrated by the capture and brutal execution of two U.S. Soldiers last month.
And it may so far just be idle speculation, but the fact that these soldiers were members of the same platoon that apparently contained five solders who stalked, raped and murder a young Iraq woman and her entire family this past February.
Could the deaths of Menchaca and Tucker have been retaliation? I would hope not, but if so - it yet again goes to prove the Sen Feinstein, Rep. Pelosi and Secretary Powell are all absolute correct - while the neo-con Republicans in the House, Senate and White House are dead wrong.
We have to rise above our atavistic instinct to lash out viciously against our enemies, and instead hold ourselves accountable to the laws of war, the Constitution and genuine Justice.
Vyan
No comments:
Post a Comment