Word is that this new decision by Judge Joyce Hens Green is important and (mostly) well-reasoned.
Early news coverage: Guantanamo Bay Military Reviews Ruled Illegal, U.S. Denies Guantánamo Inmates' Rights, Judge Says.
I haven't read it yet. Late tonight, I hope, if I get my work done…
I just finished reading it. It’s a very lucid, very smart opinion.
Parts A-C of the main section seem fairly straightforward, applying Rasul very well. Part D is the shocker, though – rather than ducking the issue, she says straight out that Geneva III is self-executing and creates an implied private right of action (in fact, she treats the terms as synonymous, although I don’t think they quite are [cf. e.g. D. Jinks & D. Sloss, “Is the President Bound by the Geneva Conventions?”, 90 Cornell L. Rev. 97, 127 (2005)]), and, most importantly, reads the “any doubt” provision of Article 5 of Geneva III against the Administration’s interpretation: “Nothing in the Convention itself or in Army Regulation 190-8 authorizes the President of the United States to rule by fiat that an entire group of fighters covered by the Third Geneva Convention falls outside of the Article 4 definitions of ‘prisoners of war’. To the contrary … the President’s broad characterization of how the Taliban generally fought the war in Afghanistan cannot substitute for an Article 5 tribunal’s determination on an individualized basis of whether a particular fighter complied with the laws of war or otherwise falls within an exception denying him prisoner of war status.” Slip op., 72.
Nice to see the John Yoo theory of treaty interpretation get rebuffed as sharply as the John Yoo theory of the commander-in-chief clause.
I’ve no doubt that the White House will give this ruling the highest priority–and begin ignoring it immediately.
After all, we know the Republican mindset when it comes to rules: They are for them, so long as they don’t get in the way.
Unfortunately, in the same court on 19 January, Judge Leon (a Bush II appointee) came to the conclusion that the detainees had no right to challenge their detention and the summarily dismissed the claim – Khalid v Bush. Also, see Yoo’s op-ed in today’s LA Times.
This judge has NO business interfering in Military affairs such as tribunals.
I’m not sure that it takes a rocket scientist to figure this out. She is demonstrating
judicial activism because the left-wingers such as herself cannot win with their ideas at the
ballot box. ANYBODY can see that!
This judge has NO business interfering in Military affairs such as tribunals.
I’m not sure that it takes a rocket scientist to figure this out. She is demonstrating
judicial activism because the left-wingers such as herself cannot win with their ideas at the
ballot box. ANYBODY can see that!
This judge has NO business interfering in Military affairs such as tribunals.
I’m not sure that it takes a rocket scientist to figure this out. She is demonstrating
judicial activism because the left-wingers such as herself cannot win with their ideas at the
ballot box. ANYBODY can see that!
Gregg, it doesn’t matter how often you say it, the military IS part of the U.S. government and might well be expected to obey U.S. laws. It’s bad enough that members of the military don’t have the same legal rights as other citizens, but to expect them to be allowed to operate outside the law is simply dangerous. Until martial law is ordered I trust the judicial system has a significant role to play in our government.
I agree the opinion is well reasoned. It is notable that she was a member of the FISA Court — no lone liberal wolf she. The citations of a telling detainee colloquy (would make a great movie or play scene), claims of torture, and refusal to take “the president says so” as determinative on the issue of protection of the Taliban are highlights.
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