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Tilting at Windmills

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September 14, 2006
By: Kevin Drum

MORAL BASIS....Two cheers for Colin Powell:

Powell lent his support to three Republican senators Thursday saying that Congress must not pass Bush's proposal to redefine U.S. compliance with the Geneva Conventions, a treaty that sets international standards for the treatment of prisoners of war.

...."The world is beginning to doubt the moral basis of our fight against terrorism," said Powell, who served under Bush and is a former chairman of the Joint Chiefs of Staff. "To redefine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk."

It is astonishing that, apparently, only three out of 55 Republican senators recognize something so obvious. It would have been nice if Powell had said this five years ago, but it speaks poorly to the eventual success of our war against jihadism that he has to say it at all.

Kevin Drum 1:14 PM Permalink | Trackbacks | Comments (126)

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It is astonishing that, apparently, only three out of 55 Republican senators recognize something so obvious.

The Republicans are a bunch of corrupt, criminal, morally perverted and immoral fascists. So no, it's not astonishing.

Posted by: Arminius on September 14, 2006 at 1:22 PM | PERMALINK

Colin Powell is dead to me.

Posted by: Keith G on September 14, 2006 at 1:25 PM | PERMALINK

All 55 recognize it. Only 3 bothered to acknowledge the fact.

These guys aren't blind, they're simply worthless.

Posted by: wishIwuz2 on September 14, 2006 at 1:29 PM | PERMALINK

Colin is dead to me, too, but I seem to recall that he did mumble something to similar effect long ago, with little effect.

His kindest epitaph: He could have tried harder (and lied less).

Posted by: Blindered on September 14, 2006 at 1:30 PM | PERMALINK

"The world is beginning to doubt the moral basis of our fight against terrorism," said Powell, who served under Bush and is a former chairman of the Joint Chiefs of Staff.

Why the hell should America care about what the rest of the world thinks? Americans don't doubt the moral basis of our war on the Islamofascists and radical Islam. If liberals and Democrats believe the War on Terrorism is wrong and we should cut and run on it they should say so. Instead all you have are liberals like Powell and Howard Dean blame America first rather than remind ourselves that we were the ones who were first attacked on 9/11. America didn't start the war on terror. The Islamofascists did on 9/11. Now we're just responding to their attacks by staying in Iraq.

"To redefine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk."

*Snicker* Now Powell thinks the Islamofascists are going to treat Americans worse because of this! Of course the terrorists have never followed the Geneva Conventions so why should we? If we do follow the Geneva Conventions, the Islamofascists will see we're holding back. This will embolden them to fight even harder. As usual, Powell knows nothing about fighting wars.

Posted by: Al on September 14, 2006 at 1:31 PM | PERMALINK

My, oh my, hasn't he grown since trying to cover up My Lai? In addition to not speaking up to the Nixon Administration about Nixon declaring all missing in action as dead, although intelligence reports stated that there were still missing in action soldiers being held in North VietNam.

Guess he is no longer bucking for a star. What a standup guy.

Posted by: thethirdPaul on September 14, 2006 at 1:31 PM | PERMALINK

Well, late is better than never. Further, given Powell's military and diplomatic experience, this should provide all the political cover needed to oppose this abomination.

Posted by: old gold on September 14, 2006 at 1:32 PM | PERMALINK

Republicans care about nothing so much as (and really nothing much else than) transferring wealth upward, especially insofar as they personally can get a piece of it. If turning the country into a police state, and the nation into a war machine, will advance that end, they're all for it.

And in case anyone hasn't looked in a while, outfits like George H.W. Bush's Carlyle Group and Dick Cheney's Halliburton are doing very very well out of this war thing.

Geneva Conventions? Quaint. The US Constitution? A 200-year-old piece of paper.

I mean, if you could SELL them it might be another story...

Posted by: bleh on September 14, 2006 at 1:33 PM | PERMALINK

Cue all the commentators explaining that a 4-Star General, former Chairman of the Joint Chiefs, Secretary of State and successful architect of a successful war in Iraq, doesn't know anything about war, terrorism, or America's world standing.

Posted by: Alderaan on September 14, 2006 at 1:35 PM | PERMALINK

I'm pleasantly surprised that three Republicans --four, counting Powell--can appreciate a point about moral authority. But they are still morality-impaired or they would remain Republicans.

Posted by: lily on September 14, 2006 at 1:43 PM | PERMALINK

I meant "wouldN,T remain Republicans!" I shouldn't be snarky before I've had my second cup of coffee.

Posted by: lily on September 14, 2006 at 1:45 PM | PERMALINK

Three cheers for Mr. Powell would have been appropriate had he made this statement four years ago or if his statement would have explicitly condemned Bush in the harshest terms available, calling for his impeachment and arrest for crimes against humanity. Powell has only earned three raspberries and a four star demotion for this tepid support of the Geneva Conventions.

Posted by: Hostile on September 14, 2006 at 1:51 PM | PERMALINK

It is astonishing that, apparently, only three out of 55 Republican senators recognize something so obvious.


Is it? The Republican party is a criminal organization and it will remain a criminal organization until we organize the political will to address it as such.

Posted by: cld on September 14, 2006 at 1:53 PM | PERMALINK

The mighty right-wing slime machine is about to crank up and start to work on McCain, Powell, Warner and Graham.

Limbaugh and Hannity, the supreme Bushbots, will take the lead. Of course, Rich Kurtz' wife will be in the forefront, too. McCain's been through it before. Did you know he has a black daughter and his wife is on drugs?

Posted by: Pug on September 14, 2006 at 1:57 PM | PERMALINK

too fucking late, colin.

Posted by: linda on September 14, 2006 at 2:12 PM | PERMALINK

A novel, or perhaps not so novel but astounding nevertheless, line that I heard today on a local radio was that it's the Democrats' fault when the Republicans pass laws restricting our fundamental rights enshrined in the constitution, because it's the Dems' duty to strongly oppose such infringement on our civil liberties.

This is a win win situation for Repubs for a long time.

Posted by: gregor on September 14, 2006 at 2:16 PM | PERMALINK

Three cheers for Mr. Powell would have been appropriate had he made this statement four years ago or if his statement would have explicitly condemned Bush in the harshest terms available, calling for his impeachment and arrest for crimes against humanity. Powell has only earned three raspberries and a four star demotion for this tepid support of the Geneva Conventions.

Why should the Geneva Conventions apply to these non-state actors?

I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs.

Posted by: Red State Mike on September 14, 2006 at 2:25 PM | PERMALINK

I'm guessing that quite a few more Republicans will vote against the bill if it makes it to the floor. I can't see any of the Northeastern moderates such as Susan Collins, Olympia Snowe, Judd Gregg, John Sununu, and Lincoln Chafee voting for it, and I wouldn't be surprised to see relatively principled guys like Domenici, Lugar, and Hagel vote against it as well. And I'm guessing that DeWine, who is in a tough reelection bid, will probably vote against it as well, especially when he sees that Bush doesn't have the votes. In total, I'm guessing 10-12 Republican Senators vote against it if Frist brings it to the floor.

Posted by: mfw13 on September 14, 2006 at 2:32 PM | PERMALINK

Red State Mike asks "Why should the Geneva Conventions apply to these non-state actors?"

Simple answer: Too late to ask why they should; they already do.

Non-state actors were fighting, capturing, and being captured long before anyone convened in Geneva to address the subject.

Posted by: Izzsszzy on September 14, 2006 at 2:33 PM | PERMALINK
Why should the Geneva Conventions apply to these non-state actors?
Because the Geneva Conventions apply to us: the United States of America, who ratified these treaties decades ago making them the laws of our nation. Posted by: Peter on September 14, 2006 at 2:34 PM | PERMALINK

This from the opening of the GCs...

The Geneva Conventions and supplementary protocols make a distinction between combatants and civilians. The two groups must be treated differently by the warring sides and, therefore, combatants must be clearly distinguishable from civilians. Although this obligation benefits civilians by making it easier for the warring sides to avoid targeting non-combatants, soldiers also benefit because they become immune from prosecution for acts of war. For example, a civilian who shoots a soldier may be liable for murder while a soldier who shoots an enemy soldier and is captured may not be punished.

In order for the distinction between combatants and civilians to be clear, combatants must wear uniforms and carry their weapons openly during military operations and during preparation for them...

...Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups and thus endanger the civilian population are no longer protected by the Geneva Convention.
Combatants who do fall within the guidelines of the Geneva Conventions enjoy the following protections:

* Prisoners of war must be treated humanely...
* Finally, and most importantly, prisoners of war may not be punished for the acts they committed during the fighting unless the opposing side would have punished its own soldiers for those acts as well.


Posted by: Red State Mike on September 14, 2006 at 2:55 PM | PERMALINK

Why should the Geneva Conventions apply to these non-state actors?

Because they aren't non-humans.

Posted by: Hostile on September 14, 2006 at 2:56 PM | PERMALINK

To be correct, text is from adiscussion of the GCs.
http://www.genevaconventions.org/

Posted by: Red State Mike on September 14, 2006 at 2:57 PM | PERMALINK

Why should the Geneva Conventions apply to these non-state actors?

I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs.

Posted by: Red State Mike

Because not following the GCs does harm to us. We don't want (or I don't want) our soldiers to become the very enemy we're trying to destroy. But I guess that's too "nuanced" for you. Your logic is the kind that got us "in order to save the village, we had to destrory the village."

Posted by: cyntax on September 14, 2006 at 2:58 PM | PERMALINK

Because not following the GCs does harm to us...Your logic is the kind that got us "in order to save the village, we had to destrory the village."

My logic? What exactly is my logic in my post, where I said, "I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs."

Non sequitur.

Posted by: Red State Mike on September 14, 2006 at 3:01 PM | PERMALINK

My logic? What exactly is my logic in my post, where I said, "I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs."

Non sequitur.

You asked why we should treat them in accordance with the GCs. I answered.

You're original post is the one that strikes me as the non-sequitur: are you agruing we should or shouldn't follow the GCs?


Posted by: cyntax on September 14, 2006 at 3:05 PM | PERMALINK

Red State Mike gets selective: "This from the opening of the GCs..."

Mr. Mike, read through to the end. if you need some help with your thinking cap, here's some middle-of-the road easy reading.

You asked the question. Now you have the answers. Quaint, aren't they?

Posted by: Ugo on September 14, 2006 at 3:09 PM | PERMALINK

cyntax
You asked why we should treat them in accordance with the GCs. I answered.

No, I asked where they fit into the framework of the GCs. When I read them, it seems that they explicitly say they do not get the protections of the GCs.

You're original post is the one that strikes me as the non-sequitur: are you arguing we should or shouldn't follow the GCs?

We should follow the GCs, yes. But the GCs explicitly say they don't get the protections.

But we should treat them in a manner similar to that prescribed in the GCs (but not identical), not for their rights, but to preserve our own morality.

Posted by: Red State Mike on September 14, 2006 at 3:09 PM | PERMALINK

Ugo
Mr. Mike, read through to the end. if you need some help with your thinking cap, here's some middle-of-the road easy reading.

Thanks. It supports my position.

Posted by: Red State Mike on September 14, 2006 at 3:13 PM | PERMALINK

But we should treat them in a manner similar to that prescribed in the GCs (but not identical), not for their rights, but to preserve our own morality.

OK, well that's what I said too. We seem to be in agreement on that point.

So what's the purpose of your other question then? You'll notice from the comments that most people (myself included) inferred a disregard for the GCs on your part. Maybe spelling out the issue behind your question (how they relate to the framework of GCs) would be helpful.

Posted by: cyntax on September 14, 2006 at 3:17 PM | PERMALINK

So what's the purpose of your other question then? You'll notice from the comments that most people (myself included) inferred a disregard for the GCs on your part. Maybe spelling out the issue behind your question (how they relate to the framework of GCs) would be helpful.

Well, because everyone goes around saying, "We have to treat them in accordance with the GCs!", which to me results in a semantic disconnect, because the GCs say they don't get treated in accordance with the GCs. So in short, it is a matter of precision in one's argument. The difference between a Monet ("treat them by the GCs, whatever the heck that means!") and a carefully reasoned argument.

And I think it is important that we understand that we treat captives with humanity for our own purposes of living with ourselves, not due to some negotiated treaty.

Posted by: Red State Mike on September 14, 2006 at 3:22 PM | PERMALINK

from a WaPo article

......But Corn, the Army's former legal expert, said that Common Article 3 was, according to its written history, "left deliberately vague because efforts to define it would invariably lead to wrongdoers identifying 'exceptions,' and because the meaning was plain -- treat people like humans and not animals or objects." Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said that laws governing military conduct are filled with broadly described prohibitions that are nonetheless enforceable, including "dereliction of duty," "maltreatment" and "conduct unbecoming an officer."

Retired Rear Adm. John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000 and now dean of the Franklin Pierce Law Center, said his view is "don't trust the motives of any lawyer who changes a statutory provision that is short, clear, and to the point and replaces it with something that is much longer, more complicated, and includes exceptions within exceptions."
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/08/AR2006080801276_pf.html
War Crimes Act Changes Would Reduce Threat Of Prosecution
By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, August 9, 2006; A01

Posted by: ET on September 14, 2006 at 3:24 PM | PERMALINK

Why should the Geneva Conventions apply to these non-state actors? I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs.

The Geneva Conventions cover not just states, but citizens of signatory states (which the terrorist suspects are). Others in the past have gone over in great detail the legal provisions of the Geneva Conventions, in discussions that you have been part of, so to pretend you don't know this is, to put it midly, a bit disingenous.

Posted by: Arminius on September 14, 2006 at 3:28 PM | PERMALINK

We should follow the GCs, yes. But the GCs explicitly say they don't get the protections.

Really? Cite chapter and verse, please.

Well, because everyone goes around saying, "We have to treat them in accordance with the GCs!", which to me results in a semantic disconnect, because the GCs say they don't get treated in accordance with the GCs.

Again, cite chapter and verse. Let's see what you're talking about.

Posted by: Arminius on September 14, 2006 at 3:30 PM | PERMALINK

Others in the past have gone over in great detail the legal provisions of the Geneva Conventions, in discussions that you have been part of, so to pretend you don't know this is, to put it midly, a bit disingenous.
Posted by: Arminius

You're right, and the more I read and consider, the more I believe the Taliban and Al Qaeda don't fit. Ugo's link was an excellent summary of the argument.

Posted by: Red State Mike on September 14, 2006 at 3:30 PM | PERMALINK

Arminius, to quote the FindLaw article, which expresses my opinion pretty much identically...

Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."
Posted by: Red State Mike on September 14, 2006 at 3:34 PM | PERMALINK

And I think it is important that we understand that we treat captives with humanity for our own purposes of living with ourselves, not due to some negotiated treaty.

Well, one assumes that we should do what we've said we would do, and that the reason we said we would in the first place is because it was and still is a good idea for a multiplicity of reasons, ranging from moral protection for our troops (maybe less PTSD) to Hostile's contention that they are still humans. You can embrace one, all, or some of those reasons.

As to the potential imprecision of applying the GCs to "irregulars," I think that's a good point to bring up, but I kind of leave that to the military to work out. After all I believe the JAGs are currently protesting this legislation, so I think it's safe to say that if it's necessary to come up with a legal interpretation of how to apply the GCs to "irregulars," that would be something they're looking at.

Posted by: cyntax on September 14, 2006 at 3:37 PM | PERMALINK

Correction the JAGs are protesting the administration's proposal for using evidence the detainees can't see:

    "I am not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people where an individual can be tried and convicted without seeing the evidence against him," said Brigadier Gen. James C. Walker, staff judge advocate to the Marine Corps commandant.

Posted by: cyntax on September 14, 2006 at 3:46 PM | PERMALINK

Red State Mike, I'm happy to help, but you're jumping to conclusions: "Thanks. It supports my position."

You still haven't read beyond the introduction, have you? Here's another source that might help you round out your thinking: Wikipedia time!

One can argue about who fits where, but the administration line won't hold.

And it's not a bad idea to consider how you would want/expect to be treated if you were captured by an invader, just so we don't lose sight of the big picture.

Another point: Some of our combatants are operating in disguise. What should their status be if they were captured?

There are many points to consider, but Bagram, Abu Ghraib, and Guantanamo--not to mention our secret prisons--are beyond the pale in more ways than one.

Posted by: Ugo on September 14, 2006 at 3:46 PM | PERMALINK

As in OBTW, a nice blog that discusses military law and stuff...

http://www.intel-dump.com/

Posted by: Red State Mike on September 14, 2006 at 3:46 PM | PERMALINK

Red State Mike, I'm happy to help, but you're jumping to conclusions

I think you hold preconceived notions of my beliefs that are false.

Posted by: Red State Mike on September 14, 2006 at 3:57 PM | PERMALINK

Powell: right when it doesn't matter, wrong when it does.

Posted by: klyde on September 14, 2006 at 4:07 PM | PERMALINK

Or this guy too:

    [J.D. Henderson, Friday August 25, 2006 at 2:08pm EST]


    I have been called paranoid for trying to warn of the growing threat of fascism. Am I out of line?

    During World War Two merely listening to the BBC could get you executed by the Nazis. Stalin imprisoned people for listening to the Voice of America. North Korea issues radios that are pre-tuned to government stations. Our citizens , as free people who believe in the free marketplace of ideas, have always been free to listen to or read anything they want until NOW:

    Todays NYTs reports that a man has been charged with a federal crime for broadcasting material deemed in support of terrorists. What was he broadcasting?

    A TV channel controlled by Hezbollah, available freely around the world but not here. I am not making this up. He provided links to satellite broadcasts of a TV station in Lebanon so that customers in America (the land of the free and home of the brave) could watch the channel. For that, and that alone, he is now in JAIL.

Posted by: cyntax on September 14, 2006 at 4:09 PM | PERMALINK

Red State Mike again: "I think you hold preconceived notions of my beliefs that are false."

I'll be happy to be wrong in my preconceptions, too. I'm a happy person.

Posted by: Ugo on September 14, 2006 at 4:28 PM | PERMALINK

It would seem to me that the decision to apply GC standards or not presupposes guilt. I'm not overly concerned that an actual terrorist is treated poorly, but when you have the US military acknowledging that most of the prisoners captured in Iraq were guilty of nothing more than "being in the wrong place at the wrong time", torture or inhumane treatment is an abomination. In order to avoid this possibility, GC standards should be applied.

Posted by: MeLoseBrain? on September 14, 2006 at 4:33 PM | PERMALINK

Who was Colin Powell again?

Posted by: craigie on September 14, 2006 at 4:39 PM | PERMALINK

Benedict Arnold was an American General once too.

This is the sort of vile horseshit that makes Charlie number one on my despise list.

If only these suspects were snowflake babies, eh? Except, of course, the Islamic ones. Fuck them and their humanity.

Posted by: craigie on September 14, 2006 at 4:43 PM | PERMALINK

I'm not saying that we shouldn't treat them in a manner consistent with the GCs, but I don't see where they fit in the framework of the GCs.

Hmmm, good point. So if they are non-state actors, that would mean that they weren't really an army. And that would mean this really wasn't a war. In fact, you could almost say that non-state actors who commit these kinds of crimes are, um, wait it will come to me - oh yeah! Criminals!

And that would make all this anti-terror stuff something of a police activity, rather than a military one.

Hmmm, I wonder who has been saying that for 5 years now? And been called treasonous traiters for their trouble?

Welcome to the light, brother!

Posted by: craigie on September 14, 2006 at 4:46 PM | PERMALINK

Arminius, to quote the FindLaw article, which expresses my opinion pretty much identically...
Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

That means that they do not qualify for Prisoner-of-War protections under the Third Geneva Convention -- it does not, however, mean that they are not protected by Fourth Geneva Convention, which says:

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.....

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Posted by: Arminius on September 14, 2006 at 4:50 PM | PERMALINK

And now it's time for Fun! With! Al!
where you, the viewer, play along by applying logic to his wacky, illogical statements.

I'll go first.

AL:
"America didn't start the war on terror. The Islamofascists did on 9/11. Now we're just responding to their attacks by staying in Iraq."


CAZART:
America didn't start the war on terror. The Islamofascists did on 9/11. Now we're just responding to their attacks by vacationing in Crawford.

...shamelessly grasping for power.

...telling Brownie "Heckuva job."

...attacking the wrong country.

...discovering the difference between Shia and Sunni.

...giving the wealthiest 1% a fat tax cut.

You try! It's hours of family fun!


Try it! It's fun!

Posted by: cazart on September 14, 2006 at 4:50 PM | PERMALINK

Who was Colin Powell again?

Maybe Harry Belafonte remembers.

Posted by: Scooter on September 14, 2006 at 4:55 PM | PERMALINK

Today, Red Kalki, relying on reliable sources, brings this matter into the open

FYI:
Red Kalki = Argentinian neo-Nazi group.

Posted by: cleek on September 14, 2006 at 4:57 PM | PERMALINK
Well, because everyone goes around saying, "We have to treat them in accordance with the GCs!", which to me results in a semantic disconnect, because the GCs say they don't get treated in accordance with the GCs.

Well, that's false. The Third Geneva Convention, quite arguably, excludes many of the people detained in the "War on Terror" from a particular status ("prisoner of war") which has particular protections associated with it in that convention. OTOH, that is not the same thing as saying that those detainees are completely outside the protection of the Geneva Conventions, or even those of the Third Geneva Convention, such as its requirement that detainees of uncertain status be presumptively treated as POWs until an individual determination is made by an appropriate tribunal regarding their status.


Posted by: cmdicely on September 14, 2006 at 4:57 PM | PERMALINK

Arminius, to quote the FindLaw article, which expresses my opinion pretty much identically...
Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.
The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

Stop going to Findlaw and start reading the treaties themselves. For one thing, Al Qaeda isn't an irregular militia, it's a terrorist group, a criminal gang. The Taliban, however, were a regular militia.

Here's the Third Geneva Convention definition of who qualifies as a soldier. I'll bold the parts I think apply to the Taliban:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. [the Taliban were the ruling government's armed forces and/or militia]

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Posted by: Arminius on September 14, 2006 at 4:59 PM | PERMALINK

Ugo wrote:

"Another point: Some of our combatants are operating in disguise. What should their status be if they were captured?"

They can be charged under such laws as determined by their Detaining Authority. In other words, they can be put to death, quite legally. Since they are operating against an enemy which will kill them anyway, insignia or no, it hardly makes a difference. However, most of our special ops types continue to wear the distinctive elements of a uniform, if for no other reason than comfort.

The point is that we haven't a clear definition in our own laws about what the punishment is for acting as an illegal combatant against us. If detainees who are not following the GC rules are to be given habeus corpus rights, then there must be something to charge them with.

Posted by: Trashhauler on September 14, 2006 at 5:00 PM | PERMALINK

If detainees who are not following the GC rules are to be given habeus corpus rights, then there must be something to charge them with.

There is no requirement in the Conventions that anyone has to follow Geneva Convention rules themselves to be subject to Geneva Convention protections.

Posted by: Arminius on September 14, 2006 at 5:05 PM | PERMALINK

"Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."
________________

Well, after three years no one can claim to have "spontaneously" taken up arms to resist the invading forces. By the GC, they should join the organized resistance movements and follow the rules established for them.

Posted by: Trashhauler on September 14, 2006 at 5:10 PM | PERMALINK

Well, after three years no one can claim to have "spontaneously" taken up arms to resist the invading forces. By the GC, they should join the organized resistance movements and follow the rules established for them.

Yes, but the Afghans who took up arms to resist us in late 2001, early 2002 and were captured then do fall under that category.

Posted by: Arminius on September 14, 2006 at 5:12 PM | PERMALINK

Possibly so, Arminius. At least, they can make the argument. The trouble is, we haven't any governing statute to charge them with, even if they are illegal combatants. Therefore, Congress needs to either establish a law under which they can be tried or establish military tribunals empowered to render judgement on them.

Giving them habeus corpus rights without doing either of the above, simply gives everyone a "Get Out of Jail Free" card.

Posted by: Trashhauler on September 14, 2006 at 5:17 PM | PERMALINK

craigie: Hmmm, good point. So if they are non-state actors, that would mean that they weren't really an army. And that would mean this really wasn't a war. In fact, you could almost say that non-state actors who commit these kinds of crimes are, um, wait it will come to me - oh yeah! Criminals! And that would make all this anti-terror stuff something of a police activity, rather than a military one. Hmmm, I wonder who has been saying that for 5 years now? And been called treasonous traiters for their trouble?Welcome to the light, brother!

Craigie, here's what Fred Barnes said on TV today about an interview he just did with Bush:

BARNES: Well, he said, look, you can send 100,000 special forces, thats the figure he used, to the mountains of Pakistan and Afghanistan and hunt him down, but he just said thats not a top priority use of American resources. His vision of a war on terror is one that involves intelligence to find out from people, to get tips, to follow them up and break up plots to kill Americans before they occur. Thats what happened recently in that case of the planes that were to be blown up by terrorists, we think coming from England, and thats the top involves intelligence to find out from people, to get tips, to follow them up and break up plots to kill Americans before they occur. Thats what happened recently in that case of the planes that were to be blown up by terrorists, we think coming from England, and thats the top priority. He says, you know, getting Osama bin Laden is a low priority compared to that.

So sending 100,000 troops to capture someone who attacked us -- not a top priority

Sending 150,000 troops to capture someone who didn't attack us -- high priority.

And doesn't Bush's "vision of the war on terror" ("involves intelligence to find out from people, to get tips,") sound an awful lot more like, y'know, police work than military activity? Doesn't that sound like FUCKING EXACTLY what Kerry said we should do -- something Bush and Cheney then ridiculed Kerry for?

Also, why is it a higher priority to stop
the plots midway rather than capturing the person who's supposedly hatching the plots? Does that make any sense? If a cop said "we don't think capturing the Mafia gang leader is a top priority, we'd rather wait around and see what plots he develops" would that cop still have a job?

Fuckin' incredible.

Posted by: Arminius on September 14, 2006 at 5:20 PM | PERMALINK
Yes, but the Afghans who took up arms to resist us in late 2001, early 2002 and were captured then do fall under that category.

And then there are the Afghans and foreigners present in Afghanistan that never took up arms but were sold to the US for the "Taliban and al-Qaeda" bounty by local militants.

Posted by: cmdicely on September 14, 2006 at 5:23 PM | PERMALINK

Possibly so, Arminius. At least, they can make the argument.

No, they can't, because we're denying them the tribunals that the Geneva Convention demands.

The trouble is, we haven't any governing statute to charge them with, even if they are illegal combatants. Therefore, Congress needs to either establish a law under which they can be tried or establish military tribunals empowered to render judgement on them.

What? That's fucking nonsense. Of course we have a statute -- the Geneva Conventions, which have procedures in place to determine whether they are POWs or not. We also have plenty of other terrorism-related laws and can try them in federal criminal court on terrorism charges. We already have all the laws we need.

Giving them habeus corpus rights without doing either of the above, simply gives everyone a "Get Out of Jail Free" card.

If they haven't done anything, why shouldn't they get out of jail free?

Posted by: Arminius on September 14, 2006 at 5:23 PM | PERMALINK

...would that cop still have a job?

of course he would. and that's the point.

if the plumber fixes the leaky pipe, you don't call him back - there's no need to. if he patches it just enough so it'll hold for, say, two years, you'll have to call him back. it helps if there are are only two plumbers in town.

Posted by: cleek on September 14, 2006 at 5:25 PM | PERMALINK

"*Snicker* Now Powell thinks the Islamofascists are going to treat Americans worse because of this! Of course the terrorists have never followed the Geneva Conventions so why should we?"

Well, that just says it all, doesn't it? Alofascist snickers about the mutilation and murder of foreign nationals, many of whome have been arrested accidentally or due to some local grudge-settling. Therefore the traumatic effect on Americanm troops participating in these actions is amusing! Will it still be funny when other soldiersnot Islamowhateversuse this logic to justify torturing our men and women?

Anyway, bad people are doing something bad, so why should we bother being better?

Posted by: Kenji on September 14, 2006 at 5:41 PM | PERMALINK

Thats what happened recently in that case of the planes that were to be blown up by terrorists, we think coming from England, and thats the top involves intelligence to find out from people, to get tips, to follow them up and break up plots to kill Americans before they occur.

Yeah, just like Bush did in August 2001 when he read that PDB titled "Bin Laden Determined to Attack Inside United States" and he prevented all those Americans from getting killed!

Posted by: paul farmhill on September 14, 2006 at 5:50 PM | PERMALINK

I am sympathetic to the idea that sometimes, sometimes, it would be beneficial to use extreme methods (i.e. torture) to extract information from suspected terrorists. None of us should be so naive to believe that we have not effectively used similar methods in the past.

But why one earth does the thought of fingering KSM give rightwingers such a hard-on?

Posted by: enozinho on September 14, 2006 at 6:04 PM | PERMALINK

Arminius wrote:

"What? That's fucking nonsense. Of course we have a statute -- the Geneva Conventions, which have procedures in place to determine whether they are POWs or not. We also have plenty of other terrorism-related laws and can try them in federal criminal court on terrorism charges. We already have all the laws we need."
_____________

It's not nonsense at all, Arminius. You are under the mistaken impression that the Geneva Conventions are, in and of themselves, actionable law. They are not. What they are is a set of principles and specific agreements by which each signatory agrees to abide. There are no penalties mentioned in the Geneva Conventions for not following them. It is the responsibility of each signatory to enact such laws as to enforce the Conventions. We do that through the UCMJ, field manuals, and regulations, as do other countries.

It further is the duty of the Detaining Authority to pass whatever statutes are necessary to govern the behavior and punishment of its detainees. It is, for example, quite legal under the Geneva Conventions to legislate punishment, including death, for certain crimes against the Detaining Authority's armed forces. The details of those crimes and their punishments are not included in the Conventions.

Any lawyer disagree with me? I'm always ready to learn.

Posted by: Trashhauler on September 14, 2006 at 6:09 PM | PERMALINK

You know, they always use the ticking-timebomb scenario (what, one in 10,000 at most?) to justify across-the-board abuse, thereby guaranteeing 10,000 more throat-cutters coming for us.

The fact is, they love the conflict and you're right about the hard-on: war is posrnography to this cowardly crowd.

Posted by: Kenji on September 14, 2006 at 6:10 PM | PERMALINK

Any lawyers disagree with me? I'm always ready to learn.

Yep, I disagree. As I explained in the thread above the Geneva Conventions are American law. They are treaties, ratified and signed by the United States government, and as such are supreme law of the land:

Article VI. - Debts, Supremacy, Oaths

....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.

Posted by: Esquire on September 14, 2006 at 6:16 PM | PERMALINK

Sure it's nonsense. You were saying that we don't have "any governing statutes" to charge our prisoners with. But we already have two:

(a) if they are prisoners of war, they fall under the Geneva Conventions and we treat them as such, with all due protections.

(b) if they are terrorists, they fall subject to federal criminal law, and can be tried in federal criminal court.

What more do we need?

Posted by: Arminius on September 14, 2006 at 6:18 PM | PERMALINK

Arminius wrote:

"(Quoting me) 'Giving them habeus corpus rights without doing either of the above, simply gives everyone a "Get Out of Jail Free" card.'

If they haven't done anything, why shouldn't they get out of jail free?"
___________________

The point isn't whether or not they've done anything. Habeus corpus doesn't speak to guilt or innocence. The problem is that, without specific legislation to cover their supposed crimes, giving them habeus corpus rights means they have to be released, no matter what they've done, as there is no statute governing their actions.

You suggested they all be charged under "terrorist" laws. (First of all, is anyone charged with "terrorism?" They are usually charged with attempted murder, or conspiracy - specific acts.) Is someone who set off an IED in Iraq a terrorist or a combatant? How about a sniper? Have we a law that makes killing a US soldier in legitimate combat a crime? No, we don't, because it isn't a crime, if done by legitimate enemies as defined in the Geneva Conventions. That's why it is crucial to define the difference between legal and illegal combatants.

Posted by: Trashhauler on September 14, 2006 at 6:23 PM | PERMALINK

esquire wrote:

"Yep, I disagree. As I explained in the thread above the Geneva Conventions are American law. They are treaties, ratified and signed by the United States government, and as such are supreme law of the land:

Article VI. - Debts, Supremacy, Oaths

....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."
______________

esquire, I agree that treaties, such as the Geneva Conventions, are the "law of the land." But are they actionable statutes, in and of themselves? What is the punishment for violation of a specific protocol within the Conventions? Who is the Convening Authority to judge such a crime?

You will agree, I presume, that enabling statutes and procedures are required to enforce the Geneva Conventions?

I am minded that there are many treaties and conventions that are the "law of the land" which require enabling legislation to enforce. I'm very familiar with the 1944 Chicago Convention, which governs air transport between nations. However, I am unaware of anyone who has ever been formally charged with "violating the Chicago Convention." What they are charged with is violating FAA and ICAO regulations and such other statutes are passed by each country that are required by the Chicago Convention.

So, once we get past the pedantics, I ask you again, are the Geneva Conventions actionable in themselves or do they need enabling legislation?

Posted by: Trashhauler on September 14, 2006 at 6:36 PM | PERMALINK

The point isn't whether or not they've done anything. Habeus corpus doesn't speak to guilt or innocence. The problem is that, without specific legislation to cover their supposed crimes, giving them habeus corpus rights means they have to be released, no matter what they've done, as there is no statute governing their actions. You suggested they all be charged under "terrorist" laws. (First of all, is anyone charged with "terrorism?" They are usually charged with attempted murder, or conspiracy - specific acts.)

Yes, we have a full panoply of laws governing terrorism. Go to

http://jurist.law.pitt.edu/terrorism/terrorism3.htm

to get an idea of the range of US anti-terrorism laws an accused terrorist can be charged under (in addition to such regular criminal offenses such as murder, kidnapping, possession of banned weaponry, conspiracy, etc.

They are usually charged with attempted murder, or conspiracy - specific acts.)

Then we do have laws to charge them under, even with habeus.

Posted by: Esquire on September 14, 2006 at 6:41 PM | PERMALINK

First of all, is anyone charged with "terrorism?"

yes.

and see, for example, USA PATRIOT, sec 802 to see just what little it takes to earn the honor.

Posted by: cleek on September 14, 2006 at 6:52 PM | PERMALINK

esquire wrote:

"Then we do have laws to charge them under, even with habeus."
_______________

As I pointed out, we have specific laws, sure, but do they apply to our detainees? Have we made it against the law to simply belong to the Taliban or to the Sunni resistance? If so, we can really simplify CENTCOM's detainee problem by shipped several thousand or so detainees back to the US.

What US statute prohibits participation in combat by someone not defined as a legitimate combatant under the Geneva Conventions? Attempted murder? Sounds good to me. Now to get the unbroken chain of evidence from a hot battlefield....

Posted by: Trashhauler on September 14, 2006 at 6:53 PM | PERMALINK

Here's a thought experiment: Suppose we dropped all traffic laws and replaced them with a law that no one oculd drive in a "degrading manner." Then the police and courts could apply punishment based on any after-the-fact interpretation they chose.

Would driving above 60 miles per hour be "degrading"? How about 30 mph? How would a driver know what rules to follow? Obviously it's better for the legislature to specifically spell out what drivers may or may not do.

Now consider a CIA officer whose job it is to question capotured terrorists. The current law prohibits "degrading treatment." Is water-boarding prohibited? Is a female CIA agent allowed to question a male terrorist? Are questioning sessions beyond 4 hours allowed? Under today's law, the poor CIA agent has to guess. If she guesses wrong -- according to somebody's after-the-fact interpretation -- she can be sued or even go to prison. OTOH if she fails to make use of effective questioning methods, she may fail to prevent a horrendous terrorist attack.

I think CIA agents are owed the same clarity as motorists are. If Congress wants to prohibit waterboarding or lengthy questioning sessions or cross-gender questioning, let them do it. Then everyone knows what the rules are.

By pretending that the issue is permitting torture, rather than providing clarity, Congress is posturing.

Posted by: ex-liberal on September 14, 2006 at 7:08 PM | PERMALINK

cleek wrote:

"(Quoting my question) 'First of all, is anyone charged with "terrorism?'

yes.

and see, for example, USA PATRIOT, sec 802 to see just what little it takes to earn the honor."
_______________

Okay, thanks, cleek, we've established that.

Now, does the PATRIOT Act apply to a sniper captured in Ramadi? How about any other US statute?

Posted by: Trashhauler on September 14, 2006 at 7:31 PM | PERMALINK
The problem is that, without specific legislation to cover their supposed crimes

Er, without an actual law, there is no crime.

Its just that simple.

And making new criminal laws about it now won't help, since Congress expressly has no power to make ex post facto laws.

Habeas corpus is merely the power to challenge unlawful detention. A prisoner not being extended the right to petition for the writ does not make the detention lawful, it merely allows unlawful detention to continue.

Posted by: cmdicely on September 14, 2006 at 7:51 PM | PERMALINK

Somewhere there is a pencil-neck going over an instruction manual on how to properly freeze a human being without causing permanent damage. It probably comes with technical illustrations and footnotes.

I want my country back.

Posted by: enozinho on September 14, 2006 at 7:59 PM | PERMALINK
Have we a law that makes killing a US soldier in legitimate combat a crime?

Yes. 18 USC 1114: "Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in section 1113."

Posted by: cmdicely on September 14, 2006 at 8:00 PM | PERMALINK

Also, more likely on point, 18 USC 2332, which expressly applies outside of the US: "(a)Homicide. Whoever kills a national of the United States, while such national is outside the United States, shall
(1) if the killing is murder (as defined in section 1111 (a)), be fined under this title, punished by death or imprisonment for any term of years or for life, or both;
(2) if the killing is a voluntary manslaughter as defined in section 1112 (a) of this title, be fined under this title or imprisoned not more than ten years, or both; and
(3) if the killing is an involuntary manslaughter as defined in section 1112 (a) of this title, be fined under this title or imprisoned not more than three years, or both.
(b) Attempt or Conspiracy With Respect to Homicide. Whoever outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall
(1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and
(2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111 (a) of this title, if one or more of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned.
(c) Other Conduct. Whoever outside the United States engages in physical violence
(1) with intent to cause serious bodily injury to a national of the United States; or
(2) with the result that serious bodily injury is caused to a national of the United States;
shall be fined under this title or imprisoned not more than ten years, or both."

Posted by: cmdicely on September 14, 2006 at 8:04 PM | PERMALINK
Now consider a CIA officer whose job it is to question capotured terrorists. The current law prohibits "degrading treatment."

False. The current US law regarding torture (18 USC § 2340 et seq.) prohibits torture, defined as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control", and further defines "severe mental pain and suffering" as "the prolonged mental harm caused by or resulting from
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality."

The law is not as you describe, and is nowhere near as ambiguous as you make it out to be.

Posted by: cmdicely on September 14, 2006 at 8:12 PM | PERMALINK

cmdicely wrote:

"(Quoting me) 'The problem is that, without specific legislation to cover their supposed crimes'

Er, without an actual law, there is no crime.

Its just that simple.
__________________

That's my point, cm. We have plenty of statutes, regulations, and case law that establish how we deal with our own violations of the Geneva Conventions. We have none which easily cover the actions of most of our detainees.

Captured on battlefields in Afghanistan or Iraq, they haven't necessarily broken any American laws, even if they've killed and wounded US troops and masterminded the killing of many more.

So, CENTCOM is now caught on the horns of a dilemma. We take prisoners on the battlefield for two purposes: to obtain intelligence and to prevent them from killing our troops.

If we consider the detainees to be POWs, then there is no need for habeus corpus. There is no crime, no matter how many they've killed, we simply hold them until the war ends. Of course, in strict compliance with the Geneva Conventions, we cannot attempt to compel them to provide any information past "name, rank, service number."

If we do not consider the detainees to be POWs, then, because of habeus corpus, they must either be charged or let go. So, what do we charge that sniper from Ramadi with? Or the lookout for an IED triggerman? Perhaps we can charge all the thousands of Iraqi detainees with conspiracy or something.

If we take the second course of action, then we either need to extradite them all to the States or establish some judicial authority overseas to try them. Which gets us right back to the idea of military tribunals. Bearing in mind the difficulty of maintaining ironclad chains of evidence from a battlefield, it's no wonder few have been charged, let alone convicted of anything, as of yet.

Logically, it cannot be both. Yet many people want us to both treat them as POWs and also provide for their habeus corpus rights.

That's some catch, that Catch-22.

Posted by: Trashhauler on September 14, 2006 at 8:20 PM | PERMALINK

That's some catch, that Catch-22.
Posted by: Trashhauler

Nice post. That is the crux of it.

Posted by: Red State Mike on September 14, 2006 at 8:34 PM | PERMALINK

cmdicely wrote (about whether we have something with which to charge battlefield combatants):

Yes. 18 USC 1114: "Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in section 1113."
_________________

Fine, cm. Then we'll use that statute. Assuming we can stretch the statute to cover enlisted personnel, we now have nearly 3,000 unsolved murders and, one assumes, 20,000 cases of attempted murder and, gnu knows, how many cases of conspiracy to commit murder. We'll assume that our detainees aren't really legal combatants and POWs, they are just criminals. We'll ship 'em back to the States for trial. But, since they aren't POWs, then we can attempt to coerce information from them by whatever means Congress allows.

You don't think anyone in the international community will complain about that approach, do you?

Posted by: Trashhauler on September 14, 2006 at 8:35 PM | PERMALINK

Now consider a CIA officer whose job it is to question capotured terrorists. Posted by: ex-liberal

Your hypothetical falls apart right there. I believe all but about six of the people being held by the CIA, military and probably some secret group(s) that have yet been identified, could reasonably be called terrorist. The rest, mostly apprehended in Afghanistan, are not. Therefore, either try them in a proper military court (though one must remember, we invaded Afghanistan and Iraq, not them) or turn them loose. I suggest returning them to their country of origin, and letting them deal with them as they will.

Posted by: JeffII on September 14, 2006 at 8:53 PM | PERMALINK

But, since they aren't POWs, then we can attempt to coerce information from them by whatever means Congress allows.

In this case, as a foreign national tried under US law, they would hold the rights of any accused under the US constitution; the right to representation, the right to a fair trial, the ability to "plead the fifth".

You don't think anyone in the international community will complain about that approach, do you?

Well, if you did it as above - treated the people arrested in Afghanistan as you would any foreign national arrested for a US crime - they wouldn't. It's not the fact of the US trying foreigners that pisses them off - it's the torture and the kangaroo courts that do that.

Offer, say, David Hicks (an Australian captured in Afghanistan) a fair trial in a US court, as opposed to the military trials that were just declared unconstitutional, and the protests would disappear.

Posted by: Shinobi on September 14, 2006 at 9:00 PM | PERMALINK

JeffII wrote:

(Quoting ex-liberal) Now consider a CIA officer whose job it is to question capotured terrorists. Posted by: ex-liberal

Your hypothetical falls apart right there."
___________________

Jeff, I couldn't quite follow. Did you mean to say that all but six are terrorists or that only about six were terrorists? I'd guess the latter.

At any rate, what is it exactly that you think the CIA should be doing, if not interrogating these people? Are they supposed to find someone else to interrogate, someone who wasn't captured on the battlefield?

Posted by: Trashhauler on September 14, 2006 at 9:08 PM | PERMALINK

shinobi wrote:

"Well, if you did it as above - treated the people arrested in Afghanistan as you would any foreign national arrested for a US crime - they wouldn't. It's not the fact of the US trying foreigners that pisses them off - it's the torture and the kangaroo courts that do that.

Offer, say, David Hicks (an Australian captured in Afghanistan) a fair trial in a US court, as opposed to the military trials that were just declared unconstitutional, and the protests would disappear."
_________________

Well, military tribunals are hardly kangaroo courts, since international law and the USSC both allow for their use, but nevermind.

That's one solution, shinobi. We treat the thousands of detainees as criminal suspects, rather than combatants, and still forego any coercive questioning. The trouble with that is the evidence chain, but lack of evidence is lack of evidence. Maybe we'll get lucky on the second or third time we nab 'em.

But a question: What protection do we give our soldiers on the battlefield from charges of false arrest?

Posted by: Trashhauler on September 14, 2006 at 9:30 PM | PERMALINK

craigie: Benedict Arnold was NOT an American General before he turned traitor?

1) You don't think craigie knows who Benedict Arnold was?

2) You think Benedict Arnold is somehow germane to this discussion?

Posted by: obscure on September 14, 2006 at 9:31 PM | PERMALINK

Yes, GOP, that is hilarious.

Posted by: Kenji on September 14, 2006 at 9:42 PM | PERMALINK

Assuming we can stretch the statute to cover enlisted personnel, we now have nearly 3,000 unsolved murders and, one assumes, 20,000 cases of attempted murder and, gnu knows, how many cases of conspiracy to commit murder.

That would be a mighty stretch. You're assuming that every GI was attacked by an illegal combatant. Insurgents are legitimate fighters under the Geneva Conventions.

Your saying otherwise, or George Bush saying otherwise, does not change the facts.

You've been fairly reasonable in other posts. Why are you so willfully obtuse here?

Posted by: Wapiti on September 14, 2006 at 9:43 PM | PERMALINK

We must be ruthless...Only thus shall we purge our people of their softness.. I don't want the concentration camps transformed into penitentiaries. Fear is the most effective political instrument...It is my duty to make use of every means of training the German people to cruelty, and to prepare them for war...There must be no weakness or tenderness. - A. Hitler

Posted by: failed prez on September 14, 2006 at 10:05 PM | PERMALINK

wapiti wrote:

(Quoting me) 'Assuming we can stretch the statute to cover enlisted personnel, we now have nearly 3,000 unsolved murders and, one assumes, 20,000 cases of attempted murder and, gnu knows, how many cases of conspiracy to commit murder.'

That would be a mighty stretch. You're assuming that every GI was attacked by an illegal combatant. Insurgents are legitimate fighters under the Geneva Conventions.

Your saying otherwise, or George Bush saying otherwise, does not change the facts.

You've been fairly reasonable in other posts. Why are you so willfully obtuse here?
______________

Because I'm leading to something, here, wapiti. As you say, some, maybe most, of these fighters are legal according to the Geneva Conventions (if we don't pay much attention to the details).

I don't agree that we should treat these detainees as criminal suspects, except in such cases where there is clear evidence that they are not the run of the mill fighter. An Al Qaeda type, I'd run back to the States for trial. But that won't work for most of these prisoners, first, because it gets uncomfortably close to treating legitimate fighters as criminals and, second, because we'd lack the hard evidence to convict them of whatever charge we came up with.

Then, too, let's remember why we take prisoners - to obtain intelligence and protect our troops. We do neither if, by sending suspects back to the States, they lawyer up and we wind up releasing them for lack of evidence. If they are dedicated fighters, it won't be long before they are back with their old chums, sharing stories and RPGs.

Given the latest restrictions, we might have to live with less intelligence from interrogations. So be it. I suspect that the CIA and FBI can find their own prisoners to interrogate. We'll only give them detainees whom we really suspect are terrorists. We keep the fighters, they can have the real scumbags. And let's not forget the governments of Afghanistan and Iraq. They should screen the detainees for criminals and terrorists and take them off our hands.

And some firm guidance from Congress would really help, here. I assume we still want the FBI and CIA to do something useful. Congress should provide them guidance. Likewise, the military will need military tribunals in order to screen out fighters from criminals and terrorists, as well as to punish prisoners for various infractions. So, just as the Surpreme Court said, Congress needs to authorize military tribunals and provide guidance for them, as well.

This all seems reasonable to me and the fact that it is close to what the Administration seems to be seeking has nothing to do with it.

Posted by: Trashhauler on September 14, 2006 at 10:39 PM | PERMALINK

Obscure: Me too! Where the hell would I be without the ability to scare the people into voting republican by fooling them with the terrorists gonna getcha line of bull? "Third Awakening" or "Third Reich" - the dumbasses fall for it every time.

Posted by: failed prez on September 14, 2006 at 10:43 PM | PERMALINK

Just so y'all know (its seems a little late in the thread for this), the Supreme Court held in Hamdan that Common Article 3 applies to alleged Taliban and Al Qaeda supporters captured in Afghanistan. See Hamdan v. Rumsfeld, No. 05-184, Slip. Op. at 68 (US June 29, 2006).

Posted by: FTJ on September 14, 2006 at 10:43 PM | PERMALINK

"...remind ourselves that we were the ones who were first attacked on 9/11. "

Of course, it takes an idiot to point out the elephant in the room, and there's no bigger idiot than Al.

Of course, it was not his intention to highlight his own idiocy, but then, he's an idiot.

The fact is that he, and all theother head-in-your-ass neocon dimwits, have been working off a completely flawed premise all this time. It began way before 9/11, morons!!!

Read some history and learn how your country has been screwing the world for decades. Then you'll understand why the world now thinks it's time to screw you.
To my mind, it all really "started" when Kermit Roosevelt, crying about oil, naturally, engineered the overthrow of a democratically elected government in Iran in 1953. But there are plenty of other similar incidents to choose from.
Until Americans get over this ridiculous notion that "they started it", the bullshit will continue.

Posted by: george 3rd on September 14, 2006 at 10:47 PM | PERMALINK

FTJ wrote:

"Just so y'all know (its seems a little late in the thread for this), the Supreme Court held in Hamdan that Common Article 3 applies to alleged Taliban and Al Qaeda supporters captured in Afghanistan. See Hamdan v. Rumsfeld, No. 05-184, Slip. Op. at 68 (US June 29, 2006)."
_______________

Yep, that's a real problem. In essence, what the USSC did was split the baby. They said, okay, if these people are not POWs, then you have to give them habeus corpus. Hence, the Administration's sudden interest in Congressional guidance. What the Administration should have done was maintain that most of the detainees were POWs. I have no idea how they can unscrew the pooch now.

Posted by: Trashhauler on September 14, 2006 at 11:01 PM | PERMALINK

I have no idea how they can unscrew the pooch now.

No matter how your interpret the GC, you gotta love that line.

Posted by: Ex - Republican Yankee on September 14, 2006 at 11:07 PM | PERMALINK

yeah right. let's not forget what's really important here: a really neat turn of phrase.

Posted by: george 3rd on September 14, 2006 at 11:11 PM | PERMALINK

here's another neat turn of phrase:
"I will not allow any bill to go forward that does not allow, uh, us, uh, go forward legal clarity."

George Duhbya Bush, 14/09/06

Posted by: george 3rd on September 14, 2006 at 11:14 PM | PERMALINK

Two cheers for Colin Powell:

Wrong...If you believe Colin Powell has changed his mind on this matter over the past 3 years, you are have a lot to learn. It is shameful that Powell did not resign in protest as he saw his boss running the country off a cliff.

And don't tell me he couldn't, many others did.

No cheers for Colin Powell...where was he when it mattered most....

Posted by: justmy2 on September 14, 2006 at 11:32 PM | PERMALINK
..."By pretending that the issue is permitting torture, rather than providing clarity, Congress is posturing". ex-liberal at 7:08 PM and "How long is "prolonged?" ...And how strong is "severe?"... GOP at 9:33 PM
Which means that if it can be construed as torture, don't do it. By attempting to quantify torture activities, Bush hopes to say that he went up to the limit but didn't exceed them. The problem for you now that Bush's credibility gap is as big as Cheney's asscrack: Only toadies in the mold of Jeff Gannon can bridge that chasm. Posted by: Mike on September 15, 2006 at 12:27 AM | PERMALINK

How about we colonize their homelands, take over their economies and resources, make their most important political decisions for them, install puppet leaders, assassinate some none-puppets and occasionally throw bombs at them?

Is that allowed under the GCs?

Posted by: exasperanto on September 15, 2006 at 12:43 AM | PERMALINK

All of that is totally acceptable under the GCs, exasperanto.

Posted by: Trashhauler on September 15, 2006 at 1:33 AM | PERMALINK

Al:
As usual, Powell knows nothing about fighting wars.

??? Wtf ???
--

3 questions...

Why are we always subjected to the infantile rantings of "Al" in the 1st couple of posts.

Who is this "Al" lunatic and why does he have spittle on his keboard?

Is "Al" really W ???

One answer to all 3:

FU Al

Posted by: Jay in Oregon on September 15, 2006 at 1:46 AM | PERMALINK

only three out of 55 Republican senators recognize

Actually, they got Collins and presumably Chaffee will go along. But still, just five out of 55 suggests what a bunch of robotic assholes this Party is.

Posted by: bob h on September 15, 2006 at 7:40 AM | PERMALINK

If we do not consider the detainees to be POWs, then, because of habeus corpus, they must either be charged or let go. So, what do we charge that sniper from Ramadi with? Or the lookout for an IED triggerman? Perhaps we can charge all the thousands of Iraqi detainees with conspiracy or something.

Simple. You don't charge them. They're POWs.

To look at it another way, what crime would you charge the Marine sniper in Fallujah with? What about the spotter for an Army artillery battery which fires a shell into an Iraqi home? After all, they are in Iraq illegally, and have no legal authority under international law to be making war on the Iraqi people -- do you consider them to be criminals as well?

War is reciprocal -- if you say we're "at war," then you have to apply the same standard to your enemy as well.

Posted by: Arminius on September 15, 2006 at 10:01 AM | PERMALINK

Logically, it cannot be both. Yet many people want us to both treat them as POWs and also provide for their habeus corpus rights.

That's some catch, that Catch-22.

Yes, because the Administration wants to treat the prisoners both as people captured on the battlefield (in which case they would be POWs) and as criminal suspects. Logically, it cannot be both. Bush has to make up his mind: is it war (in which case the laws of war and the Geneva Conventions apply) or is it a crime (in which case they can be tried under federal criminal law)? Which is it?

Posted by: Arminius on September 15, 2006 at 10:04 AM | PERMALINK

Arminius wrote:

"Simple. You don't charge them. They're POWs.

To look at it another way, what crime would you charge the Marine sniper in Fallujah with? What about the spotter for an Army artillery battery which fires a shell into an Iraqi home? After all, they are in Iraq illegally, and have no legal authority under international law to be making war on the Iraqi people -- do you consider them to be criminals as well?"
_______________

Arminius, if you read my conclusion in my post at Trashhauler on September 14, 2006 at 10:39 PM, you'll know that I agree with you, for very practical reasons.

I note, though, that the Geneva Conventions do not address the legality of a conflict itself, but rather, specific actions taken within the conflict. The legality or illegality of the war does not redound upon the soldiers involved.

Of course, we are the only authority that might charge our soldiers. Our enemies have no interest in acting as a Detaining Authority. They don't indict violations of the Geneva Conventions - generally, they torture and kill our troops without regard for the Conventions or any other law.

Posted by: Trashhauler on September 15, 2006 at 10:56 AM | PERMALINK
But, since they aren't POWs, then we can attempt to coerce information from them by whatever means Congress allows.

No more than we can if they are POWs. Its prohibited by international convention (for one, the convention against torture even if the GCs were completely inapplicable) in either case.

Posted by: cmdicely on September 15, 2006 at 11:12 AM | PERMALINK

cmdicely wrote:

"(Quoting me) 'But, since they aren't POWs, then we can attempt to coerce information from them by whatever means Congress allows.'

No more than we can if they are POWs. Its prohibited by international convention (for one, the convention against torture even if the GCs were completely inapplicable) in either case."
________________

Note that I didn't mention anything about torture, cm. Congress can (and should) provide guidance of interrogation techniques that fall well short of torture.

I suspect that the reason they are reluctant to do so is that wherever they draw the line, somebody, somewhere will call it torture. (For some people a sharply spoken policeman is the equivalent of torture.) That's what happened to the Administration's attempt to provide guidance and Congress would just as soon not go through the mess themselves.

Posted by: Trashhauler on September 15, 2006 at 11:50 AM | PERMALINK

(For some people a sharply spoken policeman is the equivalent of torture.)

Really? Who? Give an example of "some people" for whom that's true.

Posted by: vandal on September 15, 2006 at 12:58 PM | PERMALINK
Note that I didn't mention anything about torture, cm.

You said that it was permissible to coerce information from them by any means Congress approves, which, given the Convention against Torture (etc.), would simply not be an accurate statement of the effect of the detainees not having POW status under Geneva III.

Posted by: cmdicely on September 15, 2006 at 1:14 PM | PERMALINK

True, cm, if the detainees are among the covered parties mentioned in GC III. However, if, as you posited we might do, we charge the non-POWs with criminal behavior, they no longer fit in the protected categories. They aren't military prisoners, they are subject to law enforcement techniques. Which, as we know, can now be more coercive than those used by the military.

Posted by: Trashhauler on September 15, 2006 at 1:22 PM | PERMALINK

vandal wrote:

(For some people a sharply spoken policeman is the equivalent of torture.)

Really? Who? Give an example of "some people" for whom that's true.
_________________

The device is called hyperbole, vandal.

Posted by: Trashhauler on September 15, 2006 at 2:01 PM | PERMALINK
True, cm, if the detainees are among the covered parties mentioned in GC III.

No, its true even if none of the 1949 Geneva Conventions existed. They cannot simply be coerced, as you suggest, by any means Congress approves without bounds, so long as the Convention against Torture (etc.) remains in effect. Your statement is simply inaccurate as to the effect of the detainees being outside of the POW status of Geneva III.

Posted by: cmdicely on September 15, 2006 at 2:23 PM | PERMALINK

True, cm, if the detainees are among the covered parties mentioned in GC III. However, if, as you posited we might do, we charge the non-POWs with criminal behavior, they no longer fit in the protected categories. They aren't military prisoners, they are subject to law enforcement techniques. Which, as we know, can now be more coercive than those used by the military.

False, false, false.

IN THIS VERY THREAD I posted excerpts from the Fourth Geneva Convention which show that even persons charged with crinal behavior fit under the protections of the Fourth Geneva Convention. Here again for those like Trashauler who seem to have trouble reading and remembering:

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.


Posted by: Arminius on September 15, 2006 at 3:11 PM | PERMALINK

True, cm, if the detainees are among the covered parties mentioned in GC III. However, if, as you posited we might do, we charge the non-POWs with criminal behavior, they no longer fit in the protected categories. They aren't military prisoners, they are subject to law enforcement techniques. Which, as we know, can now be more coercive than those used by the military.

No they can't. As I showed above even those charged with criminal offenses must still be granted "the full rights and privileges of a protected person" under the Fourth Geneva Convention and those rights include:

Art. 27 Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

See that? "All" acts of violence, or even threats of violence, are prohibited at all times.

Posted by: Arminius on September 15, 2006 at 3:18 PM | PERMALINK

The device is called hyperbole, vandal.

Oh, so if I were to say "Trashauler is a dishonest lying shill who makes up ludicrous claims he is unable to back up when challenged" that would be an example of hyperbole?

Or would it be the plain honest truth?

Posted by: vandal on September 15, 2006 at 3:21 PM | PERMALINK

Let's not forget the fact that under our Constitution, horrible people still get to have a full jury trial too.

Timothy McVeigh killed 168 people, but he still got a jury trial. The Nazi got the Nurnberg trials. Are you telling me that the people being held by the US government at Guantanamo Bay are so evil that they do not even deserve the same level of legal protection as Timothy McVeigh and the Nazis?

Posted by: mfw13 on September 15, 2006 at 6:00 PM | PERMALINK

vandal wrote:

"The device is called hyperbole, vandal."

Oh, so if I were to say "Trashauler is a dishonest lying shill who makes up ludicrous claims he is unable to back up when challenged" that would be an example of hyperbole?

Or would it be the plain honest truth?
________________

vandal, I'd say you have to follow your own conscience on that. You do what makes you most comfortable. But I won't return insult for insult.

Posted by: Trashhauler on September 15, 2006 at 7:43 PM | PERMALINK

Arminius wrote:

False, false, false.
______________

You might be right, Arminius. It would probably take some study of case law to see how that's been interpreted.

But, while we wait, perhaps you can tell me what this paragraph means:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

That bit about "such individual person shall not be entitled to claim such rights and privileges under the present Convention" has got me stumped.

Posted by: Trashhauler on September 15, 2006 at 7:50 PM | PERMALINK

Aminius, on second thought, we might not have to wait for a study of case law. The paragraphs you quoted make it quite clear that they are talking about previously protected people, who, for some infraction or crime, lose their rights and privileges under the Convention.

However, isn't it true that for these rules to be in effect would require an a priori determination that the detainee is, in fact, a protected person? It seems to me that at some point, legitimate authority (tribunals) has to decide if the detainee is in a protected category. If it turns out they are not, then the Conventions do not apply.

In any case, I'm not in favor of treating most of our detainees as criminals. I've already said that.

Posted by: Trashhauler on September 15, 2006 at 8:04 PM | PERMALINK

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Posted by: DD on September 17, 2006 at 8:31 AM | PERMALINK

Re: THIS

Expect a few quoted words of mine having nothing to do with what he accused me of, followed by a long diatribe from him lamely and failingly explaining why it does.

Posted by: bookem on September 17, 2006 at 3:51 PM | PERMALINK




 

 

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