Court Rejects Guantanamo Tribunals

Derek Jinks
International Law Author/University of Texas School of Law
Thursday, June 29, 2006; 2:00 PM

Derek Jinks , author of "The Rules of War: The Geneva Conventions in the Age of Terror" and "International Humanitarian Law" and assistant professor at the University of Texas School of Law, was online Thursday, June 29, at 2 p.m. ET to discuss the Supreme Court's decision to reject President Bush's creation of military war trials for Guantanamo detainees as part of the war on terror. Jinks, an expert in international law issues, was coauthor of an amicus brief on the applicability of the Geneva Convention in support of Salim Ahmed Hamdan's position.

Read the: text of the ruling.

The transcript follows.


Anonymous: Reports I've read have usually emphasized the government's argument that, as "enemy combatants," the prisoners were not entitled to the rights afforded the Geneva Convention NOR rights under the U.S. Constitution. I recall that the government argued that since the prisoners weren't on U.S. territory they weren't entitled to protection under the U.S. Constitution. Was this because they were on overseas territory (e.g., U.S. military base) or because we argued that Guantanamo was still legally Cuban territory leased to the U.S.? In that case, are we arguing that Castro is right to say Guantanamo belongs to Cuba, or that we still recognize the Batista government? I'm confused.

Derek Jinks: From 2001-2004, the government argued, relying on a World War II precedent, that US federal courts had no habeas jurisdiction over persons detained as enemy combatants outside of the sovereign territory of the US. Because the GTMO lease agreement makes clear that Cuba retains ultimate sovereignty over the territory in question, the government maintained that US courts had no jurisdiction over enemy combatants detained at GTMO--even though the US exercises effective control over the territory. The Supreme Court rejected this argument in 2004--which is why the Hamdan case moved forward in the first place.


Toronto, Canada: The Bush administration took the liberty of ruling, by administrative fiat, that none of the Guantanamo detainees qualified for any of the protections of the Geneva Conventions.

My understanding is that the articles 4 and 5 of the Third Geneva Convention are quite clear, that a captor is obliged to hold a "competent tribunal" in order to strip the protections of the Geneva Convention from any of its captives -- even those for whom it might seem OBVIOUS that they committed war crimes. Have I got that right? Doesn't this SCOTUS ruling mean that the Bush administration is violating the Geneva Conventions for all the remaining detainees, for not according them all of its POW protections?

Could the Bush administration now reverse itself, and decide that the detainees really should have been classified as POWs after all? At least then President Bush wouldn't have to explain why men he called killers were walking the street again.

Derek Jinks: This IS a confusing point. First, with respect to the Geneva Conventions, the Supreme Court held today only that the military commissions, as currently designed, violate Common Article 3. This provision of the Conventions governs conflicts "not of an international character"--conflicts between a state and a non-state armed group (like al-Qaeda). The Court says nothing about whether the detainees are entitled to POW status, or the procedures required to deprive a detainee of POW status. These issues were left undecided.


Arlington, Va.: Could you please check on this: Chief Justice Roberts didn't cast a vote on this decision because he voted for it at the Appeals level. CNN is saying he voted against it at the appeals level. Could you please clear this up? Thanks.

Derek Jinks: Chief Justice Roberts voted with the majority in the DC Circuit decision reversed by the Supreme Court today.


Columbus. Ohio: Does today's ruling invalidate any part of the "Detainees Treatment Act" passed by Congress earlier this year?

Derek Jinks: No, it doesn't. The Court decided only that the Detainee Treatment Act does not bar its review of Hamdan's appeal.


Toronto, Canada: I have another question about the implications of articles 4 and 5 of the Third Geneva Convention. If I understand it, article 4 says lawful combatants have to carry arms openly, wear something distinctive, like a uniform, answer to a chain of command to officers who were responsible for them, and not commit war crimes.

Various apologists for the Bush detainee policy have argued that the Taliban and al-Qaeda didn't wear uniforms and didn't answer to a proper chain of command. But I have read a bunch of the transcripts of the Combatant Status Review Tribunals. In several of those Tribunals the detainees were detained because they were issued Taliban uniforms.

And one of the detainees, Khirullah Khairkhwa, served as the Governor of Herat Province. The allegations he faced stated that both the Police and all military forces in Herat answered to him, and that he, in turn, answered to Mullah Omar.

It seems to me that if American Intelligence analysts are detaining individuals because they had been issued Taliban uniforms they can hardly claim they are not lawful combatants because they didn't wear uniforms.

And it seems to me that since American Intelligence analysts claimed a Governor had authority over all the military forces in his Province, and that he answered to the big cheese, they have acknowledged that the detainees did answer to a chain of command.

Do you know if Bush or any executive branch spokesmen claimed the detainees were not lawful combatants because they didn't satisfy the article 4 criteria?

Derek Jinks: Terrific question. The issue is a complex, technical one. Article 4 does specify 4 criteria that must be satisfied for SOME detainees to receive POW status. These criteria are: they must carry their arms openly; wear a fixed, distinctive sign; operate under a responsible command structure; and observe the laws of war. The Bush administration has maintained that neither the al-Qaeda nor the Taliban fighters complied with ANY of the four criteria. Here is the rub, though. These four criteria apply only to ONE category of enemy combatants---organized forces not forming part of the regular armed forces of a state party to the conflict. These criteria do NOT apply to members of the regular armed forces. So, members of the regular Taliban army are entitled to POW status irrespective of whether they meet the criteria. Several detainees at GTMO fall into this category.


Rego Park, N.Y.: If Common Article 3 of the Geneva Conventions applies to the conduct of the president in setting up tribunals, is the president's practice of extraordinary rendition illegal? If yes, what result?

Derek Jinks: Great point. The court ruled that Common Article 3 applies to the conflict with al-Qaeda. This provision not only requires trials by "regularly constituted courts", it also prohibits all "cruel treatment", torture, "outrages upon personal dignity", and "humiliating and degrading treatment." Thus, the ruling will likely have far reaching consequences for rendition and interrogation policies. Any such policies that offend these principles is also unlawful-which would certainly include rendition of detainees to authorities we know will engage in interrogation techniques or punishments inconsistent with these principles.


Austin, Tex.: Could you explain exactly what this decision means, I read it but don't understand ...

Derek Jinks: Most directly, the decision means that the President cannot try al-Qaeda members before military commissions (as they are currently designed). The Court held that Congress has not authorized the President to conduct trials that are inconsistent with either the law of war (the Geneva Conventions) or basic principles of military justice (the rules followed in Courts Martial). Because the military commissions, as currently designed, are inconsistent with these rules, the President is not authorized to try al-Qaeda forces before them.


Denver, Colo.: Did we need the Supreme Court to tell us that it is wrong to hold people in prison indefinitely with no charges against them and no right to confront their accusers? Wasn't this prison unjust from the beginning?

It seems to miss the point to worry about which clause of the Constitution was violated. To lock up people for years with no charge and no right to a trial is wrong as a basic principle, isn't it? Or is that position too basic for a lawyer to understand?

Derek Jinks: Fair enough. Here are a couple of thoughts. First, the decision today is not based on constitutional law. Frankly, it was unnecessary for the courts to decide whether Hamdan's constitutional rights are violated because it found that the President doesn't have the authority to convene these tribunals as designed. Second, the reason it was necessary for the courts to reassert such basic, seemingly obvious, principles of law was that the government continuously asserted the right to treat these detainees in whatever way they saw fit--unfettered by any legal constraints.


Sarasota, Fla.: What would have happened if the Supreme Court decision had tied at 4-4?

Is there some procedure for a tie-breaker?

Derek Jinks: If the decision had ended in a 4-4 stalemate, the Court of Appeals decision would have stood--that is, the government would have won in effect.


Alexandria, Va.: It seems that the administration has plans to go back to Congress and get another law and thus make the decision irrelevant. Is this your read on their early comments?

Derek Jinks: There is no question that the administration will consult with Congress on this issue. And this raises a crucial point: Congress has the power to authorize the use of military commissions (indeed, Congress has the power to abrogate the Geneva Conventions). Nothing in Court's opinion precludes the administration from securing some express congressional authorization to move forward with the trials. My prediction is that any forthcoming congressional action will comport with the basic requirements of the Geneva Conventions (but I could easily be wrong about that!).


Baltimore, Md.: The president, in his comments today, made it seem like following this ruling was almost optional. Do you really think he will dutifully comply with today's ruling? Will detainees actually get to be present at their own trials, and have an opportunity to hear the evidence presented against them? Or do you think the president will find a way around these requirements?

Derek Jinks: The only way around these requirements would be congressional authorization to conduct trials in this manner. Even though possible, this strikes me as an uphill climb.


Austin, Tex.: Why did Justice Breyer dissent?

Derek Jinks: He didn't. Only Scalia, Thomas, and Alito dissented. Breyer wrote a concurrence, joined by Ginsburg, Souter, and Kennedy, pointing out that nothing in the opinion precludes the President from returning to Congress to seek the authority he believes necessary.


Oakville, Ontario, Canada: Given that this Supreme Court decision deals with only one issue regarding prisoners held at GTMO, what options does the administration have to continue holding the 450 +/- now incarcerated there?

Derek Jinks: This decision does not limit the authority of the President to detain persons properly designated as "enemy combatants". This decision is relevant to GTMO policy more generally in two respects: (1) the US cannot "process" detainees through trials by military commission (there is some evidence that the US planned to try 75 or so persons before these tribunals); and (2) the treatment of the detainees must be consistent with Common Article 3---that is, the detainees MUST now, as a matter of legal obligation, be treated humanely.


Baltimore, Md.: Which way do you think Justice O'Connor would have voted? Do you think she'd just fall in line where Alito is now, do you think she would have voted with the majority?

Derek Jinks: It's hard to say, but I think her views would have been something like those of Justice Kennedy. So, I think she would have been in the majority. Remember that she was in the majority in Rasul (the case ruling that the courts have jurisdiction over GTMO) and Hamdi (the case ruling that "due process" is required in the process by which persons are designated as enemy combatants).


Denver, Colo.: And you really don't think that the president will return to Congress for this authorization? Really?

Derek Jinks: I think the President will seek some congressional action. My prediction is that any such action will be consistent with the Geneva Conventions (and what the Court says about the Geneva Conventions).


Washington, D.C.: Has anyone ever challenged the procedures by which a detainee is determined to be a military combatant? Also, is there anything that compels the president to have military tribunals at all? Once they are determined to be enemy combatants, can the president hold detainees indefinitely without a commission? Thank you.

Derek Jinks: There have been, and there are, challenges to the process by which detainees are designated as enemy combatants. The Supreme Court has already ruled that US citizens may not be so designated absent due process. The Court has also held that all persons properly designated as enemy combatants may be held until the end of hostilities. Whether these rulings also apply to non-citizens and what exactly due process requires in this circumstances are as yet unresolved issues---the next BIG issues in the War on Terror litigation.


Los Angeles, Calif.: Thank you for answering all of these questions. What effect, if any, does this decision have possible remedies for past or future inhumane treatment of detainees?

Derek Jinks: This is an interesting question. One important implication is that any treatment inconsistent with Common Article 3 is (and was) illegal. This will only bolster any future or pending civil claims.


Arlington, Va.: Do you expect that this decision may prompt Congress to adopt an administrative detention law providing for continuous yet monitored detention of terrorism suspects, like Israel, the U.K. and many western European countries have?

Derek Jinks: Even though the decision does not implicate (directly) the authority of the President to detain enemy combatants, I suspect that the opinion will prompt some sort of comprehensive congressional action on the detention and treatment of wartime detainees.


Arlington, Va.: What kind of message is sent to the American people when the body of the Supreme Court tells it's own Chief Justice that an earlier ruling of his was, in effect, wrong?

Derek Jinks: In my view, it sends the message that the rule of law applies even in time of war.


Annandale, Va.: I do have a question to pose regarding the issue of the legality of holding a combatant indefinitely, which seems to offend several participants. In other conflicts, captured combatants/soldiers, etc., were held until the conflict was resolved. A prime example is John McCain. He was shot down in 1965 and did not return until the conflict between the United States and North Vietnam was settled. So why is this so offensive now?

Derek Jinks: You are exactly right. Indeed, the Geneva Conventions acknowledge the right to detain captured enemy combatants until the end of the conflict. The open questions are: (1) what procedures are appropriate for determining whether someone is an enemy combatant in the first place; (2) how should we define "enemy combatant"; and (3) how should we determine when the conflict has ended (who should decide and by what standard).


Washington, D.C.: Do you think this ruling will help the image of the U.S. among the international community? Thanks for your time.

Derek Jinks: Without any question it will. Indeed, I think the ruling is a terrifically important one for the future of law in war because it sends a powerful signal that the laws, and the law-protecting institutions, need not fall silent in time of war.


Toronto, Canada: If the president now must treat the detainees consistent with the Geneva Conventions, why can't any of the 450 who think a fair tribunal would agree that they should have been classified as innocent civilians, who were in the wrong place at the wrong time, now ask for a Geneva Convention "competent tribunal"?

Derek Jinks: Good question. It is important to note that Common Article 3 (the only provision of the Geneva Conventions relied upon by the Court) only requires trial by regularly constituted court in CRIMINAL proceedings. It prohibits punishment without fair trial. The combatant status determinations are not governed by Common Article 3 (though they may be covered by other rules---such as the Constitution or Article 5 of the POW Convention).


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