At last. The US will hold Status Hearings for all the detainees in Guantanamo. Article 5 of the Third Geneva Convention requires such hearings, stating, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
In other words, enemy fighters should be treated as POWs — not civilian law-breakers, much less “enemy combatants” — until they have had an initial hearing which can be and usually is before a military tribunal.
We were supposed to do that two years ago, but at last Pentagon Sets Hearings for 595 Detainees.
Note that these hearings are completely separate from the habeas hearings the Supreme Court has said must be held. But to the extent that some detainees are released, or classified as POWs, the number of habeas hearings may shrink.
Unlike some right-wing doomsayers I think it unlikely that POWs have a claim to habeas relief during the duration of the conflict. But to the extent that they can claim the war is over now that we've handed over sovereignty, they too might have a claim that could be heard. (But it would lose.)
From the newspaper reports I have read it would seem that the review tribunals have been set up in response to suggestion by OConnor J. in Hamdi that There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Does the review tribunal meet these criteria? Also, the question of personal representatives also arises. If Hamdi is entitled to an attorney (see section IV of OConnor Js judgment) why not the detainees in Guantanamo? There seems to be no question that there is such an entitlement in any habeas proceeding.
Finally, an interesting piece of dicta on what constitutes war (in an insurance context) from an English Court of Appeal case decided on July, 2 (IF P & C Insurance Limited v Silversea Cruises Limited):
For my part I do not believe that men of business, the underwriters and the insured, would have said as they watched those aircraft smash into the Twin Towers, “That’s an act of war!” They would have concluded, as the U.S. authorities described it in their Worldwide Cautions set out in paragraphs 37 and 38 of my Lord’s judgment that these were “terrorist actions from extremist groups with links to Usama Bin Laden’s Al Qaeda organisation” and “retaliatory actions by terrorists who harbor grievances against the United States”. To have declared “war on terror” was a rhetorical response serving only to emphasise that there was no identifiable “side” against whom the war could be waged. The war, a justified war, against Afghanistan truly was a war against that state fought to hunt down Bin Laden and his organisation. But it was not a war against them for war is not conducted against an individual and his wicked henchmen, however real a threat they pose to the security of a state. To me an “armed conflict” has an air of continuity about it. Of course the threat from Al Qaeda remains and we must be constantly vigilant since they will undoubtedly strike again. But what are essentially random attacks do not carry for me, nor in my judgment for ordinary businessmen, the sense of present and persisting fighting between military groups which is the hallmark of armed conflict. (per Ward LJ.)
Yesbut: “You have just been hauled off by Homeland Security and declared an Enemy Combatant…But, not to worry. According to a whole host of progressive human rights organizations, the Supreme Court handed Bush his hat on June 28 — an ‘historic ruling’ and a ‘strong repudiation’ of the administration, according to Steven Shapiro of the American Civil Liberties Union. ‘This is a major victory for the rule of law,’ claims Michael Ratner of the Center for Constitutional Rights, ‘and affirms the right of every person, citizen or non-citizen… to test the legality of his or her detention in a U.S. Court.’ Yup, everyone ‘can now have their day in court,’ says Jamie Fellner from Human Rights Watch.
So now you and the rest of your fellow Enemy Combatants wait for your day in court. And wait. And wait. And wait. You wait because what the Supreme Court did was not a ‘major victory’ at all. What the Supreme Court has actually done is enshrine the concept of Enemy Combatants into our legal system, strip you of nearly all of your constitutional ‘due process’ rights, and consign you to a legal limbo that would make both Franz Kafka and George Orwell spin in their graves.”
Someone (Professor Froomkin?) please convince me the above is not right on the money.
The whole concept of POW requires that those designated as such must be released after the conflict ends. Nobody seriously argues that the Soviet Union was right to hold German POWs in labor camps for years after WWII so we should hold ourselves to . Can someone please tell me what the criteria is for an end to the current conflict? We hold Afghanistan so it’s hard to argue that Taliban members should continue to be held (unless they’ve committed war crimes, in which case they should be tried for those). Al Qaeda members are, of course, in a completely different category. I assume that it will be part of the tribunals’ job to determine who is an Al Qaeda member. This site is one of the few where I think I can get some actual information rather than just a parroting of whichever political view is held by the blogger. Basically, I’m looking for an education.
“to the extent that they can claim the war is over now that weve handed over sovereignty”
But of course, the Guantanamo prisoners were apparently largely taken in Afghanistan rather than Iraq.
Is the war in Afghanistan over? Well, there’s still fighting going on . . .
But to the extent that they can claim the war is over now that weve handed over sovereignty, they too might have a claim that could be heard. (But it would lose.)
it’s so nice to know the right to be heard is so empty … it makes it so much less painful when it is revoked
The right to be heard is very far from empty. It means, for example, that the people holding you know they are subject to supervision and to being called to account.
Nevertheless, the right to be HEARD does not mean the right to WIN–many people with losing claims have a right to be heard. Not all complaints are meritorious. That I might advocate, or conclude that there exists regardless of my preferences, a right of X to be HEARD does not in itself imply a view as to the merits of his claim.
For example, suppose you genuninely come to believe you own my car and I am withholding it from you unjustly. I believe you have a right to be heard in court on that complaint. I do not believe you have a right to take my car.
“subject to supervision and to being called to account”
How threatening is this if the claim always fails? To have any teeth, there has to be some decent chance that at least a few will win on the merits. A right to be heard can be quite empty and in many cases is. I don’t think empty formalisms is all that should be expected here, no matter how important even they are.