31 Jan U.S. Judge Allows Lawsuit Challenging Guantanamo Tribunals To Continue
This Reuters story suggests that a district court judge has held the Guantanamo Bay military tribunals unconstitutional. As usual, Reuters (and other news agencies) are overstating the scope of the decision. Rather, it is more accurate to say that the district court judge has refused to grant all of the U.S. government’s motion to dismiss claims by certain detainees that their detention as enemy combatants in Guantanamo Bay violates the Constitution, federal law, treaties, and customary international law. Moreover, she also ruled in favor of the government on some issues we’ve discussed here dismissing some of plaintiffs claims for constitutional violations, finding broad sovereign immunity for claims under the Alien Tort Statute, and finding that the possible existence of a treaty violation makes their customary international law claims unnecessary. Still, the ruling is a setback for the government. I plan to blog more on this decision later.
Dear Julian,First of all, let me commend you on your new website, which is a terrific idea and excellent place for finding information. Unfortunately, however, I fail to understand why you appear to be more interested in finding out whether the government has won, partially won, partially lost, or lost this case than in the argument of the district court judge and its significance for the Guantanamo cases. This is the second district court judge to confirm that the Geneva Conventions contain self-executing provisions, first among them Article 5 of the Third Convention requiring a tribunal to review POW status (and finding the President’s determination thus insufficient). It also contains devastating portions on the unfairness of the new military tribunal’s procedure, which fail to meet the requirements set up by the Supreme Court in Hamdi. And, lastly, and probably most importantly, the decision also convincingly rebuts the argument (recently endorsed by Judge Leon) that due process does not apply in Guantanamo, an opinion attempting to invalidate the Rasul decision of the Supreme Court. By the way, I fail to see how one could not call all these portions of the decision a strong rebuttal of the core of the government’s… Read more »