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[quote]
So by a narrow majority (5:4) the US Supreme Court has ruled that detainees at Guantanamo have the right to challenge in civilian courts:

http://www.nzherald.co.nz/section/2/story.cfm?c_id=2&objectid=10516114

It's a pretty major decision, and although the Bush administration and Congress could enact legislation that still takes away the right of detainees to sue in civilian courts since the Democrats will win the next election and Obama is not supportive of Guantanamo Bay, such legislation may not be forthcoming and we might see some pretty massive class or individual actions on behalf of the detainees seeking compensation.

This is an example of what happens when you give the highest Court in the land the power to strike down legislation. Isn't it a great thing? Very Happy

Thoughts?
[quote]
And before vadinho takes to his wrists with a razor, for his benefit I include a passage from Scalia J's dissenting judgment:

quote:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.
[quote]
bellamysgirl said:
Thoughts?


not that I think I'm even remotely qualified to comment so I'm going to have a very base opinion on the situation

my thoughts are that I heard it reported the other day that some of the Guantanamo detainees have been incarcerated for 7 years without any trial

and I thought surely that must be against some type of international treaty/convention somewhere???

so I see this as an example of the system working and performing in a manner that it was intended to
[quote]
memory vague - but what were the ruling back in the Clinton era?

there are many international laws/treaties and conventions that the US refuses to sign

the system might be working but don't expect it to actually change anything

its just another turning point on the path to victory

Neutral
[quote]
by an anomaly guantanamo was a 'law free zone' until now

the detainees are not governed by international treaties such as the geneva convention as they are not considered regular soldiers but 'enemy combatants'

allegedly that is, which can now be put to the test in theory, habeas corpus having been extended to them

http://www.guardian.co.uk/commentisfree/2008/jun/13/guantanamo.terrorism1
[quote]
snowflake said:

my thoughts are that I heard it reported the other day that some of the Guantanamo detainees have been incarcerated for 7 years without any trial

and I thought surely that must be against some type of international treaty/convention somewhere???


The Geneva Convention doesn't apply, because the US has labelled these people 'enemy combatants' rather than prisoners. Clever eh? Neutral
[quote]
Oh, snap NR.
[quote]
Yaksha said:
The Geneva Convention doesn't apply, because the US has labelled these people 'enemy combatants' rather than prisoners. Clever eh? Neutral


Laughing

oh right! I getcha

and I bet they aren't imprisoned either, they are just 'safely enclosed'

Laughing
[quote]
Big Tings - of course it's the 3rd time they've had to do it (and God don't you HATE Scalia, man's not a fucken judge, he's an arbitrary politician).

I liked Justice Kennedy's statement in the majority decision:
"[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: 'To bereave a man of life. . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.'"
[quote]
What are the rules on detaining enemy combatants? Hand them back when the war is over?
[quote]
snowflake said:
and I bet they aren't imprisoned either, they are just 'safely enclosed'


Laughing

AKA "News Speak" in 1984, George Orwell would be proud of you.
[quote]
garethw said:
(and God don't you HATE Scalia, man's not a fucken judge, he's an arbitrary politician).


all of the US SC judges are political appointments, and Scalia was a Republican appointment, Ronald Regan gave him the job from memory....you can see why :>

it's ironic, in US the SC Judges are politically appointed yet they have the power to strike down legislation for being inconsistent with the Constitution.

in NZ judges are independently appointed but do not have the power to strike down legislation for being inconsistent with the BORA or the *unwritten* Constitution.
[quote]
garethw said:
Big Tings - of course it's the 3rd time they've had to do it (and God don't you HATE Scalia, man's not a fucken judge, he's an arbitrary politician).
"


Uhh, he's the one saying that the judges don't have the right to create law, which is exactly what they're doing.
[quote]
bellamysgirl said:
garethw said:
(and God don't you HATE Scalia, man's not a fucken judge, he's an arbitrary politician).


all of the US SC judges are political appointments, and Scalia was a Republican appointment, Ronald Regan gave him the job from memory....you can see why :>

it's ironic, in US the SC Judges are politically appointed yet they have the power to strike down legislation for being inconsistent with the Constitution.

in NZ judges are independently appointed but do not have the power to strike down legislation for being inconsistent with the BORA or the *unwritten* Constitution.


You do realise that judges aren't really independently appointed in NZ right? The governor-general appoints them on the advice of the attorney-general (a member of cabinet) from memory.
[quote]
An independent legislature strikes at the very heart of the social contract
- VAD-D, 2008
[quote]
vadinho said:
garethw said:
Big Tings - of course it's the 3rd time they've had to do it (and God don't you HATE Scalia, man's not a fucken judge, he's an arbitrary politician).
"


Uhh, he's the one saying that the judges don't have the right to create law, which is exactly what they're doing.

Of course they do have the right (and are in fact charged with) overturning laws that violate existing, long-standing pieces of legislation like, say, the Constitution...
[quote]
Antics said:
You do realise that judges aren't really independently appointed in NZ right? The governor-general appoints them on the advice of the attorney-general (a member of cabinet) from memory.


I sought to distinguish the way NZ Judges are appointed and the way US SC Judges. The latter are entirely political appointments whereas in NZ the gov-general acts on the advice of a number of people, including and in particular current members of the judiciary, and 'politics' have little to do with it.
[quote]
snowflake said:
my thoughts are that I heard it reported the other day that some of the Guantanamo detainees have been incarcerated for 7 years without any trial

If they are captured soldiers, then they are not necessarily criminals - so exactly what crimes should they be tried for??

If they are civilians, then conspiracy to commit murder should be a relatively straight forward case to prove against most of them - what with them running around planning to kill US soldiers and what not.

The US says they are captured soldiers – who, like in any war, will stay captured until the war is over and the threat is gone. But also that they broke the rules of war and hence get no special rights under the Geneva Convention.