On Thu, 11 Dec 2003 06:07:04 GMT, Charles Gray wrote:

On Thu, 11 Dec 2003 05:53:52 GMT, James Robinson
wrote:

Ken Davey wrote:

Seems to me that the instant these 'detainees' arrived at Guantonamo they
were on US soil and were therefore entitled to the *full* protection of the
US constitution. If not that means that no one is protected. Tell me I am
wrong; Someone?; Please?

The Guantanamo base is leased from Cuba, and is therefore not US soil.
That is one of the reasons it is being used, since it doesn't come
directly under US law, at least that is the way Ashcroft is interpreting
it. The US Supreme Court is going to hear arguments in the new year
about that very subject.

THe arguement is that the U.S. civil court system does not have
jurisdiction over territory over which it is not "soverign". There is
precedent on this from WWII.
But the counter arguement is that we are the "de facto" soverigns in
Guantanemo, since it's unlikely that if a Cuban judge issued a release
order for any of the detainees, we'd obey it. That arguement also has
some precedent-- the trial of General Yama****a, which the SC heard on
the merits, even though it denied his appeal, indicating that the
court system did indeed have jurisdiction.

I would have to disagree that this situation is analogous enough for
US v Yama****a to be considered a precedent. There was no doubt
that "War Crimes Tribunals" were a form of "Court", thus the Supremes
obviously had jurisdiction, however the situation in Cube is far
different. The detainees are "illegal combatants", and do not have
the right to petition for a writ of habeas corps, as they are not being
held as "criminals". Very complicated subject.

THe problem is one of seperation of powers, and by some indications,
the SC is not overly happy at having the Administration tell them they
don't have jurisdiction, even if they eventually rule that way
themselves.

It is IMHO a question not of separation of powers, but rather
a question of jurisdiction.

Al Minyard