Michael Froomkin politely tells a commentator that just because U.S. judges refuse to take jurisdiction over Guantanamo Bay does not mean that Cuban judges take jurisdiction. According to what the courts currently say, nobody has jurisdiction: Guantanamo Bay is a gap in seisin-it is a terra sine domine, a land without a lord, and among the oldest principles of the Feudal and Ancient Common Law is that such a gap in seisin is impossible--that for every square inch of the earth not currently engaged in active military operations, there is a normal peacetime court to take jurisdiction and judge offenses.
Michael Froomkin seems to think that America's judges have made a big mistake in claiming that they have no jurisdiction to enforce the Constitution, the laws of the United States of America, or the common law in Guantanamo Bay. It's hard to read the 1903 and 1934 treaties between the U.S. and Cuba as doing anything other than granting such jurisdiction to the federal courts.
Posted by DeLong at October 23, 2003 04:05 PM | TrackBackDiscourse.net: Personally, I would be prepared to read the words "the United States shall exercise complete jurisdiction and control" language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.
The cowardice and cronyism of the federal judiciary blends in nicely with the arrogance and incompetence of the administration. Thank God that Congress is here to save us.
Posted by: Dick Durata on October 23, 2003 07:50 PMThere are, on reflection, complexities. See http://www.discourse.net/archives/2003/10/us_jurisdiction_in_guantanamo_some_complexities.html
It is sad to see a "Democratic ", country with a concentration camp!
Posted by: big al on October 24, 2003 03:29 AMHi Brad,
I don't have a copy of the treaties at my elbow but if I recall, Cuba retains nominal teritorial sovereignty, if not legal jurisdiction, over Guantanamo but Cuba's government is not recognized by the United States.
Guantanamo is of course purely a military installation active now holding enemy combatants under the legal authority of a Congressional force resolutions recognizing a state of hostilities between the United States and al Qaida. So I'm not sure how a civilian court can exercise competent jurisdiction there any more than they could over say, Diego Garcia. Ex Parte Milligan specifically excluded active zones of military operations even as they circumscribed military trials for civilians who were American citizens -( restrictions that were partially voided by Ex Parte Quirin).
In any event, out of hundreds of enemy combatants, approximately three are American citizens and none of these are being held at Guantanamo. Liberals are advocating Federal Court jurisdiction over foreign combatants captured under arms, by American forces, on foreign soil during a legally recognized state of armed hostlities. The negative logical results of treating POW's and war criminals in wartime as civilian criminal suspects should be obvious. International law does not require any such thing and the objective in so arguing is to make American military operations in the normal sense, impossible.
The intrusion of the domestic Courts into international diplomacy, intelligence or war-time military operations - something favored by Liberals at the moment to get a quick n' dirty policy result they'd like to see - seems to be a pretty clear violation of Separation of Powers doctrine. The Courts have been right to reject these pleas even if the reasoning in this particular case is, I agree with you, esoteric.
If Liberals do not like the Bush policy in these areas the proper approach is via the ballot box or lobbying the Congress for new laws.
Posted by: mark safranski on October 24, 2003 08:39 AMOf course, you are missing the law that really applies here: Catch-22 -- They can do anything you can't stop them from doing.
Posted by: joe on October 24, 2003 09:14 AMYes Mark this is one more reason to go to the ballot box. The US government forcibly moved people to Guantanamo and then denies them rights. What is to prevent any nation from establishing their own Guantanamo or setting up some remote atoll to serve as a penal colony and to avoid due process? What is to keep US citizens from being moved to Guantanamo and then after they are there, claiming they have no legal rights. This is a bad precedent.
Unlike Generals Grant and Sherman, General Bush has no clue about getting former combatants to return to productive endeavors.
Posted by: bakho on October 24, 2003 12:00 PMIf socialdemocrats do not like the Hitler policy in these areas the proper approach is via the ballot box or lobbying the Reichstag for new laws.
Posted by: Hans Suter on October 24, 2003 01:10 PMBakho,
Actually what the Bush administration should do is follow the Geneva Convention and try the captives at Guantanamo for war crimes ( fighting out of uniform, deliberately targeting civilians, murdering wounded American combatants)by military tribunal or court-martial where appropriate. Some of the Taliban detainees have grounds for acquiring POW status because some of them fought in recognizable military units and some of these have been released without prejudice. The al Qaida detainees, who did not, are eligible for the death penalty if found guilty.
We took a couple of years to similarly try the Nazis and Japanese so the time frame is reasonable, so far, but indefinite captivity is not really allowed ( The Soviets kept German and Japanese prisoners until 1955, the other Allies kept some until the late 1940's).
I'm not really too concerned about rehabilitating al Qaida terrorists for " productive endeavors " - what is required is military justice via war crimes trials. It will discourage terrorists and emphasize the legal point that acts of terror targeting civilians are against the laws of war and will not be tolerated.
Posted by: mark safranski on October 24, 2003 04:44 PMI am totally ignorant. Well I said it. My question is what about US service people in Guantanamo ? Surely they have some legal recourse if their rights are violated. I assume to the military justice system. Why don't the prisoners in camp X-ray appeal to the military courts ? The military courts-martial are subject to the constitution including the 8th amendment aren't they ? I'm waiting for the episode on JAG to get reliable information.
Posted by: Robert on October 25, 2003 08:35 AM