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=> Re: on Freedom's Gulags...

Re: on Freedom's Gulags...
Posted by Tony (Guest) - Friday, November 4 2005, 19:07:07 (CET)
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http://en.wikipedia.org/wiki/Unlawful_combatant

With the U.S. invasion of Afghanistan some lawyers in the Justice Department's Office of Legal Aid and in the office of White House counsel Alberto Gonzales advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror. This applied not only to members of Al Queda but the entire Taliban, because, they argued, Afghanistan was a "failed state".[3] Critics[4][5] however, note that Gonzales also points to a little known law passed by Congress, known as the War Crimes Act[6]. By declaring Taliban and Al Qaeda fighters did not have Geneva Convention protection it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote. Another memo[7], written by Attorney General John Ashcroft, again summarizes the position of the Justice Department on why the Geneva Convention does not apply to al Qaeda or Taliban prisoners.

Both memos warn against the possibility of U.S. officials being subject to prosecution for violating U.S. and international laws if the Geneva Conventions[8] are applied. With several "torture"incidents in mind sceptics think that these legal considerations could be a key argument[9] [10] [11] [12] [13] [14] for refuting the Geneva Convention. Furthermore, by explicitly addressing the War Crimes Act the memos acknowledge U.S. officials are involved in acts that could be seen to be war crimes.

Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War [15]. For those U.S. citizens detained under the military order, US officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.

Most of the individuals, detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees, are held Camp X-Ray at Guantanamo Bay on Cuba. Guantanamo Bay was chosen because although it is under the de facto control of the United States administration, it is not a sovereign territory of the United States and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

There have been a number of domestic legal challenges made on behalf of the detainees held in Camp X-Ray and in other places. These include:

On July 30, 2002 The Washington D.C. District Court ruled that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. This decision was appealed to the D.C. Circuit Court which upheld the decision. The case was appealed to the United States Supreme Court on September 2, 2003.
On November 10, 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Camp X-Ray as being unlawful.
On 10 January 2004, 175 members of both houses of Parliament in the UK had filed an amici curiĉ brief to support the detainees' access to US jurisdiction.
On June 28, 2004, the Supreme Court ruled in Rasul_v._Bush that detainees in Camp X-Ray could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial.
On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.[16]
On November 8, 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge James Robertson of the U.S. District Court for the District of Columbia ruled in Hamdan v. Rumsfeld[17] that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions.
By March 29, 2005, all detainees at the Guantanamo Bay facility had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the unlawful enemy combatant status of 520 detainees [18]. Reuters reported on June 15, 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said "The (reviews) are a sham,... They mock this nation's commitment to due process, and it is past time for this mockery to end"[19].
Yaser Hamdi was captured in Afghanistan in 2001. He was taken to Camp X-Ray at Guantanamo Bay, Cuba, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On September 23, 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld which issued a decision on June 28, 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. However, such wartime unlawful combatant detentions for foreign-captured soldiers who are also US citizens were explicitly allowed by the Hamdi ruling, when Congress granted it to the Executive branch, [20] provided a habeas corpus hearing on the question of the alleged combatant status was first afforded. [21]

On May 8, 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago's O'Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On June 9, 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin)[22]. Padilla is currently being detained without charge in South Carolina and is accused by the Bush Administration of being an illegal enemy combatant and a nuclear terrorist planning to set off a dirty bomb.

The November 13, 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are "unlawful combatants", which indicates that Padilla and Yaser Hamdi would end up in the civilian criminal justice system, as happened with John Walker Lindh.
On December 18, 2003, the U.S. Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days[23]. But agreed that he could be held until an appeal was heard.
On February 20, 2004, the Supreme Court agreed to hear the government's appeal.
The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28 it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filled in South Carolina, where Padilla was being held.
On February 28, 2005, in Spartanburg, South Carolina, U.S. District Judge Henry Floyd ordered the Bush administration to either charge Padilla or release him[24]. He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (Hamdi v. Rumsfeld), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
On July 19, 2005, in Richmond, Virginia, the 4th U.S. Circuit Court of Appeals began hearing the government's appeal of the lower court ruling. [25]

And much more...



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