Monday, January 31, 2005

Guantanamo Detainee Habeas Opinion - GPW

Judge Joyce Hens Green has issued an Order and Opinion regarding the government's motion to dismiss the habeas petitions of the Guantanamo Bay detainees. She has found that the Combatant Status Review Tribunals were unconstitutional and that the Taliban detainees were entitled to claims under the Geneva Conventions.

I am parsing through the opinion now and will update this further.

In the meantime...check out her opinion.

While there is much to comment in the opinion, one striking aspect is the portion on international law, which constitutes a small portion (5 of 75 pages) of the opinion. Here are some initial comments on that section:

1. Green finds that the GPW is self-executing thus creating a private right of action and that Taliban soldiers (but not Al-Qaida operatives) have viable claims under GPW because Afghanistan was a party to the treaty. The reasoning Green uses is that Congress never felt it necessary to implement enacting legistlation because it was clearly implied that in the treaty-making process that the treaty was intended to be self-executing.

While the conclusion is quite possible to defend, the fact there is NO discussion of the surrounding provisions of the GPW is startling to me. First, Article 130 requires the parties to enact legislation for violations of grave breaches. The absence of additional language about other violations at least begs the question as to whether private rights of actions for lesser breaches are contemplated. Second, Article 132 notes that an "enquiry" between the interested parties should be instituted at discovery of an alleged breach. This clearly contemplates a diplomatic solution.

2. Green finds that the Presidential determination that Taliban fighters are not POWs under GPW is an exercise of executive fiat beyond the scope of Convention.

This finding is almost undoubtedly true. Article 5 states that where doubt exists as to an individual's status of a POW, a properly constituted tribunal should sort it out. The Presidential determination attempted to circumvent this tribunal process by eliminating any potential "doubt" that could arise. But the fact that the Article refers to individual status precludes the possibility of a class determination. It has to be determined on a case by case basis (once there is an understanding that you are dealing with a party to the convention).

*sigh* so much to say so little time. In the meantime...

I agree with Julian Ku's remark that perhaps the opinions is being a bit overbroadly reported as a ruling that the tribunals were unconstitutional. I suppose this is to be expected though.


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