[Troll]

Originally Posted by Spliffdaddy

Wow, Troll.

You got yer ass handed to ya.

Yeah, right. Before I posted, Simey had a lot of you suckers believing that if you weren't a POW, you could be summarily executed. All I really wanted to achieve was to show that he was completely wrong on that point and he's effectively admitted that. If you don't bother to read about his other errors fine with me. I've already achieved what I wanted to.

A summary execution is a type of extrajudicial punishment in which a person suspected of subversive or other criminal activity is killed, often at the time and place of their being discovered, and hence usually without any meaningful inquiry or investigation. Summary executions typically occur in a theatre of war, or in a protracted riot or other context of profound instability where a functioning criminal justice system is unavailable. Summary executions typically occur outdoors; bringing the accused to an office or lockup is generally a prelude to an inquest or trial.

Summary executions are often carried out expediently by using firearms, hanging, stabbing, stoning, and decapitating, among other methods. Poisoning, electrocution, and other tortures requiring controlled conditions would be impractical. They are often a tactic employed by parties involved in guerrilla warfare.

This is what the summary execution of an unlawful combatant is and I think you can sense why it is a war crime under the Geneva Conventions.

[Nicko]

IMO the US side-steps the whole issue of torture or executions by handing over suspects to "allies" and other "friendly" cournties mostly in eastern Europe. Quite clever actually....that is unless someone starts to speak up about it, which is happening now in western europe.

Nothing worse than a democracy acting like one of the 'bad' countries.

[SimeyTheLimey]

Originally Posted by Troll

Sorry, but no.



That's exactly right. There are only two possibilities - either a prisoner is a POW or he is is a civilian (referring to everyone else). There is no gap in the GCs. Either you're a civilian under the Third Convention or you're a POW under the Fourth. There are no other possibilities. The rights of both civilians and POWs are clearly set out in each of them. You're arguing that someone can be neither a POW nor a "civilian". Show me where this other category of prisoner that is not a civilian or a POW is created under the Convention. You can't because Art. 4 of the Third Convention specifically says that it covers EVERYONE.

The problem is that you start your analysis in the wrong place. You skip over the Third Convention and start with the Fourth by looking at whether someone is entitled to POW status. Spies are treated no differently from any civilian accused of crimes. As it turns out, spying is sometimes a crime for which civilian law says you can be tried by a military court. That is the same for everyone - civilians and unlawful combatants. A good example of how this works in practice is what happened in Angola in 1976. Three Brits and an American mercenary were captured, accused of being "unlawful combatants", tried by a civilian court and sentenced to death by firing squad. They were not POWs because they were not lawful combatants, so they could not be tried by a military tribunal for war crimes. They were correctly tried as CIVILIANS by a civilian court!
http://news.bbc.co.uk/onthisday/hi/d...00/2520575.stm

Your quote from the Supreme Court is completely irrelevant because it relates to the question as to whether spies are POWs which I agree they are not. Quirin was decided BEFORE the GCs. In any event, the Quirin case does not stand for the proposition that detainees may be held incommunicado and denied access to counsel.

A couple of points. First, Rumsfeld is not a lawyer. I have heard him point that out many times. I'm basing the US position on its legal arguments, as made in court, by lawyers. I'm also basing it on the descriptions of that position by the US Supreme Court. And finally, I am basing it on one of Rumsfeld's legal advisors' descriptions of their position. It so happens that my international law prof in law school was an adjunct. At the time he worked in the GC's office at DoD. (He now teaches at UCLA). So I really don't care what layman's descriptions you find. I'm describing the formal legal position, as articulated by people with knowledge and legal training.

Your tendency to cherry pick and misrepresent is shown also by your Yoo memo snippet. The description of that link says that Yoo argued that the entire Geneva Convention (III) did not apply. But in the memo itself, Yoo merely argues that captured Taliban are not entitled to POW status under that convention. Yoo is applying the Convention to reach his conclusion. The Convention clearly assumes that some persons may not meet the POW test -- that is why it contains the test! Yoo's narrow conclusion that captured Taliban fail the test and are not POWs does not mean that other parts of that Convention do not apply. As I have said repeatedly, the US position is that common article 3 applies in all circumstances, and it is contained in US domestic law and military regulations. So once again, your argument rests on misrepresentation. Here , from the same source you used (and did not link to) is the so-called "torture memo" to Rumsfeld. It clearly says that they concluded that captured Taliban and al-Queda did not qualify as POWs under the Geneva Convention, but that they should be treated consistently with it. That is the conclusion, it is NOT that the Geneva Conventions in the entirety did not apply. So once again, your argument rests on misrepresentation.

Second, the Quirin case is not irrelevant for two reasons. First, I referenced it as a historical example of what the US actually did prior to the entry into force of the Geneva Conventions. Unlawful combatants -- saboteurs -- were tried by military tribunal, and executed. Second, it was referenced and upheld by the U.S. Supreme Court in 2004. So it is still good precedent.

On your Angola example, nowhere have I made the argument that a sovereign may not try unlawful combatants for violations of domestic law and nowhere have I said that they may not try unlawful combatants in civil court. Your example of a case with a civilian trial does not in any way indicate that a person captured can be held by military authorities as an unlawful combatant. Of course they can. For example, if one of the Quirin unlawful combatants had murdered a person in New Jersey, of course they could have been tried for murder in New Jersey state court, and New Jersey could have executed them for that. Similarly, there are criminal statutes in the US that criminalize acts of terrorism. When a terrorist is captured, there is a choice whether to try the individual under civilian statutes, or whether to hold him as an unlawful combatant. I took it (perhaps wrongly) that you understand that in the US prosecution is always discretionary. So the fact you found an example where Angola tried and executed unlawful combatants that it captured in a civilian court is irrelevant if you meant to show that they couldn't instead have held them in a manner analogous to a formal POW. Maybe Angolan domestic law said they couldn't, but US law has no such barrier. The US has tried terrorists in civilian court before, but that doesn't alter the fact it also has the option to hold them as unlawful combatants in military detention.

I notice that you ignored the language I pointed to from 2004 where the U.S. Supreme Court cited authority after authority for that very proposition. Your position that there is a strict binary universe nowhere appeared in the Supreme Court's analysis, except where it points out that your argument was rejected in the Court of Appeals for the Fourth Circuit. I understand why you want to argue what you are arguing. You are trying to say that terrorists can only be treated as civilians, but you are simply wrong.

Yeah, right. Before I posted, Simey had a lot of you suckers believing that if you weren't a POW, you could be summarily executed.

Will you please stop misrepresenting my position. It's called lying, and it is annoying. I said that the historical practice was summary executions. That is true. Post GC, common article 3 does require trials. We are all in agreement on that. I just doubt you would really like it if those trials were held because along with those trials can be executions (although, oddly, you seem to be applauding Angola for executing unlawful combatants!). Again, domestic law might prevent execution in some countries, but international law does not, and US domestic law does not.

[Troll]

Originally Posted by SimeyTheLimey

A couple of points. First, Rumsfeld is not a lawyer.

Ah, so now when we want to learn about a position the Administration has, we need to listen to their lawyers. Okay!

Originally Posted by SimeyTheLimey

When a terrorist is captured, there is a choice whether to try the individual under civilian statutes, or whether to hold him as an unlawful combatant.

Not under the Geneva Conventions, there isn't. I don't want to get into US domestic law. This argument has always been about the Geneva Conventions. I won't debate you on US law until you tell me why, under those Conventions, your so-called "unlawful combatant" does not have the same protections as a civilian. You keep avoiding this.

Under the Geneva Conventions, you have only two choices. There is no "unlawful combatant" category. There is no difference between spies and civilians under the Conventions. They have the same rights except that spies rights can be limited in the way I described.

Let's try it another way, Simey. Here is a box of balls. All balls must stay in the box except red balls. Red balls must be wrapped in bubble wrap and put in the chest in the corner. Got it? Now what do you do with a blue ball? How about a green ball or a yellow ball. That's right. All three are balls and they aren't red so you treat all of them exactly the same way and leave them in the box. Only red balls come out. Balls are protected persons under the Fourth Convention, red balls are POWs under the Third. You are either in one box or the other. There is no third box. There is no "option" under the GCs to hold people other than as POWs or civilians accused of being spies or saboteurs or terrorist or some other form of criminal.

Originally Posted by SimeyTheLimey

Will you please stop misrepresenting my position. It's called lying, and it is annoying. I said that the historical practice was summary executions. That is true. Post GC, common article 3 does require trials.

Rubbish! You did not say that the historical practice was summary execution. You used the present tense - "If you want them to be treated the way the laws of war treat (PRESENT TENSE) such people, then please argue for them to be hanged by the neck or shot. That is (PRESENT TENSE) what the laws of war traditionally applies (PRESENT TENSE) to such people." The way I read your "traditionally" is synonymous with "normally". "There are (PRESENT TENSE) four reasons why these combatants are (PRESENT TENSE) not summarily executed." Not ONE of the reasons you gave is because the rules of war prohibit summary execution. Whatever was going on in your head, the words you used, clearly stated that the Guantanamo prisoners are lucky because by the grace of the US they are being kept alive when they could be shot on the spot. Summarily executed. No trial, no banana.

Besides, if you were trying to say that before the GCs, people were summarily executed for being spies then that was just a retarded point to make. Why would you fail to discuss any part of the GCs that do apply to the Guantanamo prisoners, but give us an lecture on what the law was BEFORE the GCs? That's just retarded and you should have made it clear that the law had changed in the last 100 years since it was okay to summarily execute spies.

Even if it was unwitting, you created the impression that the alternative treatment for prisoners, at Guantanamo as provided in the rules of war, was summary execution. I have dispelled that impression, and that's enough to make me feel my posts were worth something. No doubt, you'll want to post again. You can't resist having the last word. But I'm outta here. You're stubborn as ever. Derailing the topic, accusing people of misrepresenting you as soon as your arguments are shown to be crap. I just hope people realise that despite your being a law student, they should take your legal advice with a ladel of salt.

[SimeyTheLimey]

Originally Posted by Troll

Not under the Geneva Conventions, there isn't. I don't want to get into US domestic law. This argument has always been about the Geneva Conventions. I won't debate you on US law until you tell me why, under those Conventions, your so-called "unlawful combatant" does not have the same protections as a civilian. You keep avoiding this.

No, this argument is not just about the Geneva Conventions. They are relevant, but ultimately, only part of the issue. The real subject matter is whether there is authority for the US to detain persons who do not fit into the category defined by the Geneva Convention Relative to the Protection of Prisoners of War as being POWs (as well as other conventions (e.g. the Hague Convention of 1910)).

That's the question, and it is a practical one. The U.S. Supreme Court looked at exactly that issue, and observed (I won't quite say held, it's debatable whether this is dicta, or part of the holding) that there is such authority:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’ ” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield … . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’ ” (citations omitted); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)).

Hamdi v. United States, 542 U.S. 507 (2004).

In fact, it held that on the way to ruling against the US Government on the specific facts and procedural posture of the case. (The precise holding is fairly narrow, and did not reach the Government's broader Article II and international law position).

That is the law according to the highest court with jurisdiction over the matter. I'm sorry that you don't like the way international law actually is. But that is no reason to assert your position of how you would like it to be as what the law actually is. Although, of course, that is pretty typical behavior for you and for others with, shall we say, an ambitious agenda for international law.

Second, on the government's position as asserted by lawyers and in the Government's internal documents, of course that is more relevant than an off-the-cuff characterization of a layman, no matter how high-ranking. Laymen make laymen's errors. You know perfectly well that they don't always make the fine distinctions the law often turns upon. What is inexusable is for you, a non-layman to say that the US government's position is not what it is. That is just misrepresentation. You say that the US government says that the Geneva Conventions don't apply at all. The US government's declassified internal documents make clear that the government's actual position is narrower. It is only that the Taliban and al-Queda don't fit within the definition of provided by the Geneva Convention (and other documents) for POWs. Bybee memorandum on the status of the Taliban under the Third Geneva Convention and Rumsfeld order.

Two questions for you:

1. Do you think that captured al-Queda fit within the test set out for POWs?

2. Can you make an argument without misrepresentation? I would think that you could disagree with the Administration's position as it is, you don't have to make it what it isn't.

You're stubborn as ever. Derailing the topic, accusing people of misrepresenting you as soon as your arguments are shown to be crap. I just hope people realise that despite your being a law student, they should take your legal advice with a ladel of salt.

I'm posting this last quote for the sheer entertainment value. When one lawyer accuses another of being "stubborn" and using other such unprofessional terms (including failing to acknowlege that the other person is in fact a lawyer and not a law student), then I think it is pretty transparent where the argument has come out. If you can't win an argument legally and logically, losing your temper and throwing a tantrum won't win it for you.

[Spliffdaddy]

*smackdown*

(hands Troll his ass)

[Troll]

Originally Posted by SimeyTheLimey

No, this argument is not just about the Geneva Conventions.

This is worth coming back for. That looks to me very much like an admission that I was right about the Geneva Conventions. Obviously, debating the Conventions is making you uncomfortable.

Originally Posted by SimeyTheLimey

The real subject matter is whether there is authority for the US to detain persons who do not fit into the category defined by the Geneva Convention Relative to the Protection of Prisoners of War as being POWs (as well as other conventions (e.g. the Hague Convention of 1910)).

Which is the same as asking, "Is there authority for the US to detain civilians?" What a dumb question. Of course there is authority for the US to detain civilians. It's right there in the Fourth Convention. The one you're so frightened to read.

Originally Posted by SimeyTheLimey

The U.S. Supreme Court looked at exactly that issue, and observed (I won't quite say held, it's debatable whether this is dicta, or part of the holding) that there is such authority:

The rest of us don't give a stuff about your domestic law. You're trying to justify your behaviour in an international context. Every human rights abuser in the world raises the argument you do - "but, but, it's legal under our own laws." Domestic law doesn't count in this argument; especially the domestic law of the accused. Guantanamo is illegal under international law and that's enough for Merkel and the rest of us to say that it should be closed.

Originally Posted by SimeyTheLimey

1. Do you think that captured al-Queda fit within the test set out for POWs?

No I do not think that terrorists captured in a war would qualify for POW status.

Now I have two questions for you that I've asked endless times already and you avoid the question:

1) If you aren't a POW, then what do Arts. 4 and 5 of the Fourth Geneva Convention say you are?
2) What rights do spies have in terms of the Fourth Geneva Convention?

Here's a hint:

Article 4 of GCI - 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.

Article 5 of GCI - 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.

.. 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.

[nath]

Originally Posted by Spliffdaddy

*smackdown*

(hands Troll his ass)

This is you.

[Pendergast]

Originally Posted by nath

This is you.

And the boobs are fake, too.

[SimeyTheLimey]

Troll: it is your position that protected persons = civilian, not mine. Your argument assumes that a person may be both a combatant and a civilian. The two are contradictory. Again, here is the Supreme Court of the United States addressing your argument. You may want to belittle me, but deal with them:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, 317 U.S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’ ” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield … . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’ ” (citations omitted); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released” (footnotes omitted)).

Hamdi v. United States, 542 U.S. 507 (2004).


Of course, you would prefer to ignore a court that has actually ruled on the issue, and of course, you will dismiss it as a national court. If you want to be that disrespectful of the Supreme Court of the United States, that is up to you. You have that expansive view of international law where if a web site screams "illegal!!" that has more weight than one of the most respected tribunals in the world. That, and the fact that your arguments have been based to a significant degree on misrepresentation.

That is why ultimately, nobody is going to listen to someone like you. Except, of course, for your fellow travellers and those like analogika who simply picked a side and don't bother to read anything that might challenge their team.

However, I am still interested in those who have declared inconsistent positions on all of this. A couple of people in this thread have said that they favor calling terrorists POWs, and yet even Troll admits that they do not qualify. What does this do to that argument?

And what about those who say they agree with treating terrorism as a war problem (an idea Troll apparently rejects as impossible)? How do you square that conumdrum? Is it time to admit that perhaps the US' basic position is correct after all?

[Spliffdaddy]

There is no such thing as "international law".

even if there was - who enforces it?

[Kevin]

Originally Posted by SimeyTheLimey

Is it time to admit that perhaps the US' basic position is correct after all?

Wont happen. Certain hatred is ingrained to an extent were it puts people's common sense on the shelf.

It's the type of thinking that tells people that Bush is worse than Saddam.

[Rolling Bones]

Originally Posted by Spliffdaddy

*smackdown*

(Spliffdaddy's ass draggin' cuz of abnormally large hemmoroids.)

Must be pot baggin' day.

[Troll]

Originally Posted by SimeyTheLimey

Troll: it is your position that protected persons = civilian, not mine.

That's not what I said. I said that a spy is a protected person and a civilian is a protected person. They are both balls. They are TREATED the same way. The law does not distinguish between them. You seem to think that the GCs distinguish between combatants and civilians. That's been your problem from the start. They don't do that. They distinguish between POWs and everyone else.

Consider the crime of murder - the unlawful killing of a human. If the victim is a dog, it's not murder. If the victim is a human, then it's murder whether the victim is a man or a woman. You are jumping up and down and saying, "It is your position that women and men are the same thing." Of course I know the difference between a man and a woman, and I know the difference between a civilian and a spy (combatant) but the law does not distinguish between the two. Kill a human, if it's a man or a woman and it's murder. Infringe on a protected person's rights, whether they are a spy, saboteur or refugee and it's a war crime.

The quotes you keep posting from the US Supreme Court are not exposes of what the GCs say, so you aren't scoring any points in the argument about the GCs by posting them. As soon as you've admitted that Guantanamo is illegal under the GCs, then we can look at the position under your domestic law. As I said, I respect the argument that Spliffdaddy has now subscribed to, that Guantanamo is illegal under the GCs but necessary for US security.

The best way for us to make headway on this issue is for you to answer the questions I posed. Try it.

1) If you aren't a POW, then what do Arts. 4 and 5 of the Fourth Geneva Convention say you are?

2) What rights do spies have in terms of the Fourth Geneva Convention?

[SimeyTheLimey]

Originally Posted by Troll

That's not what I said. I said that a spy is a protected person and a civilian is a protected person. They are both balls. They are TREATED the same way. The law does not distinguish between them. You seem to think that the GCs distinguish between combatants and civilians. That's been your problem from the start. They don't do that. They distinguish between POWs and everyone else.

Consider the crime of murder - the unlawful killing of a human. If the victim is a dog, it's not murder. If the victim is a human, then it's murder whether the victim is a man or a woman. You are jumping up and down and saying, "It is your position that women and men are the same thing." Of course I know the difference between a man and a woman, and I know the difference between a civilian and a spy (combatant) but the law does not distinguish between the two. Kill a human, if it's a man or a woman and it's murder. Infringe on a protected person's rights, whether they are a spy, saboteur or refugee and it's a war crime.

The quotes you keep posting from the US Supreme Court are not exposes of what the GCs say, so you aren't scoring any points in the argument about the GCs by posting them. As soon as you've admitted that Guantanamo is illegal under the GCs, then we can look at the position under your domestic law. As I said, I respect the argument that Spliffdaddy has now subscribed to, that Guantanamo is illegal under the GCs but necessary for US security.

The best way for us to make headway on this issue is for you to answer the questions I posed. Try it.

1) If you aren't a POW, then what do Arts. 4 and 5 of the Third Geneva Convention say you are?

2) What rights do spies have in terms of the Third Geneva Convention?

Troll: I have explained, the answer is not entirely contained in the GC, and your interpretation is nonsense. For example, you would have it that a civilian who participates in the conflict remains a civilian, does not become a combatant, and that for example, soldiers who are fired upon by that combatant-but-not-a-combatant could not lawfully engage that combatant-but-not-a-combatant. Indeed, you are saying that al-Queda are correct not to wear uniforms and to hide among civilians because even though when they do that they endanger true non-combatants and even though they are most definitely playing an active role in hostilities they can never forfeit their civlian status unless they join a formal army. And thus, no government can ever defend itself by the use of military force because of a piece of paper and your idiotic interpretation of it. That is just nuts, and clearly contradicted by the Hague Convention's distinction between belligerents and non-belligerents. There are inherent incidents of war. One of them is the right to engage a combatant, and with that distinction comes the inherent right to treat that combatant as a combatant by detaining the combatant so that the combatant cannot further engage in hostilities. The greater includes the lesser. You can shoot at combatants, and inherently also you can capture them.

Those are the kinds of issues considered by the Supreme Court, which was not deciding based entirely on domestic law, but neither is this decided by your pretzel logic with cherry picked phrases taken out of context in one convention out of a very extensive body of international law. You have your point of view. It's wrong, and it was rejected by the highest court to look at the issue -- which is why you won't look at what that court actually said. However, you were the one who earlier declared that courts are who decide contested issues. So if you won't look at what a court decided, that's really the end of the matter.

If you want to do independent research on why your position is wrong, then I suggest you take a look at the fact that the provision you point to with respect to spies clearly says that they have rights to a certain type of trial (i.e. a fair one)IF a trial is held. That clearly contradicts your contention that a civilian trial is mandatory. It is not, it is optional.

But that is for you to figure out. I'm content to point out that your contention that there is no unlawful combatant category under international law was rejected by the highest competent tribunal to look at the issue. That is, of course, why you will dismiss them. Courts and court precedents are only useful in your view when you like the results.

The true mark of an international law enthusiast: Reach an absurd result that would privilege those who would bring down the state system and undermine the very concept of humanitarian law, notice that no state follows it, and then declare that it's state practice that is wrong. Thus proving you weren't paying attention in international law 101 when the professor (if he wasn't also an international law enthusiast) told you that international law, if it is anything, is the agreed practice of state participants and nothing more. And you wonder why views like yours are ignored by serious adults with populations to defend?

[Troll]

Originally Posted by SimeyTheLimey

Troll: I have explained, the answer is not entirely contained in the GC

Well, you're wrong. Because there is no class of prisoner that the GC's do not cover. Art. 4 of the Third Convention is a catch-all. It covers every single prisoner captured during a war other than by their own government.

Originally Posted by SimeyTheLimey

For example, you would have it that a civilian who participates in the conflict remains a civilian, does not become a combatant, and that for example, soldiers who are fired upon by that combatant-but-not-a-combatant could not lawfully engage that combatant-but-not-a-combatant.

What are you talking about? You have completely misunderstood the basics!! My oath, this is unbelievable!!

You have taken what I've said about PRISONERS and transposed it to the battlefield. I said that a CAPTURED saboteur is treated in the same way as a captured civilian and you've taken that to mean that on the battlefield saboteurs and civilians have to be treated the same!! Huh??

The treatment of prisoners is different to the treatment of participants in a battle. Look at legal combatants - on the battlefield, they can legally kill each other but when they have prisoners in their hands, it's a different story. Then they can't kill the enemy but have to put them in POW camps. The same applies to a everyone that isn't a legal combatant. A completely separate set of rules applies to the battlefield. What we are talking about here is the treatment of PRISONERS. The fact that you have to treat an unlawful combatant that you have CAPTURED in the same way as you treat a civilian PRISONER does not mean that on the battlefield you have to treat them in the same way!! This is obvious!

When you capture people and you have PRISONERS in your hands, then you treat POWs as one class and the rest (including spies and civilians) as another class. The people at Guantanamo have rights as PRISONERS under the Geneva Conventions. The rights they had whilst on the battlefield is a whole other story and one that is completely irrelevant to the question of whether Guantanamo is legal under the GCs.

Btw, go back and read my murder example because you are still saying that I'm saying that spies are civilians. They are TREATED the same way, but they aren't the same.

Originally Posted by SimeyTheLimey

You can shoot at combatants, and inherently also you can capture them.

I agree. Now you have an "unlawful combatant" in custody. What rights do they have as prisoners, Simey? You STILL refuse to answer the questions. Why is that? Why won't you answer these question?

1) If you aren't a POW, then what do Arts. 4 and 5 of the Third Geneva Convention say you are?

2) What rights do spies have in terms of the Third Geneva Convention?

Originally Posted by SimeyTheLimey

If you want to do independent research on why your position is wrong, then I suggest you take a look at the fact that the provision you point to with respect to spies clearly says that they have rights to a certain type of trial (i.e. a fair one)IF a trial is held. That clearly contradicts your contention that a civilian trial is mandatory. It is not, it is optional.

It does not say the trial is optional. It says "in case of a trial", not "if" there is a trial.

Art. 5 says a few things. First, it confirms that a spy is a protected person. Then it says that a spy OR ANY protected person accused of being a danger to security... ANY PERSON. See that? A spy is treated exactly the same as a civilian. That is, the occupying power can remove the communication rights of a spy or any other protected person (such as a civilian) that is accused of being a danger to the security of the state. That's the only difference between a spy accused of being a danger to the State and a civilian not accused of anything. Communication rights are limited. He retains all of the other rights that a protected person has including the right to fair and regular trial etc. And his communication rights can only be limited for so long as the security of the state absolutely requires it.

If the occupying power wants to have him executed or jailed for life (i.e. do something more than just limit his communication rights), then it has to charge him with crimes and hold a trial. That's the "case of trial" that the GCs refer to! When it holds a trial, the occupying power has to treat a spy exactly the same way as any other protected person. That is, if a civilian can't stand trial by military tribunal, then neither can a spy.

[Troll]

Well, thought it would be worth resurrecting an old thread now that the decision we were waiting for has come. What do you know, the US Supreme Court agrees with my interpretation of the Geneva Conventions and disagrees with the Administration.

The Court said that military tribunals for Guantanamo detainees amount to a violation of the Geneva Conventions and US military rules!

"We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate" agreements on prisoners of war, as well as US military rules.

http://edition.cnn.com/2006/LAW/06/2...als/index.html

[FeLiZeCaT]

Well, for crying out loud...

[Shaddim]

Looks like they simply outlined the method that they're to be tried, not the fact that they're being detained.... even indefintely.

"The 5-3 ruling means officials will have to come up with a new policy to prosecute at least 10 so-called "enemy combatants" awaiting trial -- it does not address the government's ability to detain suspects."

[kobi]

Great news. It's good to see Emperor Bush get his hand slapped.
It only a matter of time folks.

[nath]

Originally Posted by Troll

Well, thought it would be worth resurrecting an old thread now that the decision we were waiting for has come. What do you know, the US Supreme Court agrees with my interpretation of the Geneva Conventions and disagrees with the Administration.

The Court said that military tribunals for Guantanamo detainees amount to a violation of the Geneva Conventions and US military rules!

"We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate" agreements on prisoners of war, as well as US military rules.

http://edition.cnn.com/2006/LAW/06/2...als/index.html

I wouldn't be so sure. The opinion seems to predicate it's conclusions on the assent of Congress. That would seem to offer Bush a huge stick to beat Democrats with - either support Gitmo and internment via new legislation, or look weak on teh terrists.

[ink]

I'm not certain that any new laws passed by congress would be retroactive (ex post facto); but I'm no lawyer, so...

[SimeyTheLimey]

Originally Posted by Troll

Well, thought it would be worth resurrecting an old thread now that the decision we were waiting for has come. What do you know, the US Supreme Court agrees with my interpretation of the Geneva Conventions and disagrees with the Administration.

The Court said that military tribunals for Guantanamo detainees amount to a violation of the Geneva Conventions and US military rules!

"We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate" agreements on prisoners of war, as well as US military rules.

http://edition.cnn.com/2006/LAW/06/2...als/index.html

Uh, Troll. They don't agree with your view of the law at all. For one thing, the Court today limited its holding, saying that Hamdan can be held indefinitely. You have said repeatedly that a terrorist is a civilian. Civilians can't be held indefinitely without trial. Because Hamdan can be held indefinitely without trial, he is a combatant. Once again the Supreme Court disagrees with you. (They did it before in Hamdi).

Really, this case is pretty narrow. It says that if there is a trial, under US statutory law it has to be one that conforms either to the standards of US statutory law (in this case, the UCMJ as it existed prior to 9/11 or the only part of the Geneva Convention that the Supreme Court hold applies to a terrorist like Hamdan. That is Common Article 3. This is the one area where the US Government's prior position has been overruled. The government argued (to me incorrectly) that common article 3 does not apply. The Court says it does.

In other words, the Court only said that the military commissions were procedulrally inadequate from a US statutory perspective, using common article 3 as a definition for the laws of war (referenced as a standard by that statute). All of this can be fixed pretty simply by statutory amendments. That is not the position you argued. Nowhere did the Court suggest that holding detainees indefinitely is legally wrong. In fact, to reiterate, the Court said the opposite:

We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge--viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

Slip Opinion

Next time read the opinion. Don't get your law from CNN.

[Troll]

Originally Posted by SimeyTheLimey

Uh, Troll. They don't agree with your view of the law at all. For one thing, the Court today limited its holding, saying that Hamdan can be held indefinitely. You have said repeatedly that a terrorist is a civilian. Civilians can't be held indefinitely without trial. Because Hamdan can be held indefinitely without trial, he is a combatant.

I figured you would misrepresent my argument.

If you read what I have written, you will see that I never said that Hamdan might not be a combatant. Your mistake is that you insist that "unlawful combatants" are a separate class not dealt with under the Geneva Conventions even though it is patent that the Conventions deal with EVERY person on the battlefield. I have argued (as have most of academics) that the Geneva Conventions specifically say that what you call "unlawful combatants" have to be TREATED the same way as civilians are under the Geneva Conventions; that no person falls into the legal black hole that you and the Administration have tried to wish into existence. The Supreme Court has dealt a massive blow to your interpretation by saying that Hamdan can't be tried by a military tribunal and that the crime he is charged with is not a violation of the rules of war.

"[W]e conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions."

How about this scathing criticism?

"The charge's shortcomings are not merely formal, but are indicative of a broader inability on the Executive's part here to satisfy the most basic precondition--at least in the absence of specific congressional authorization--for establishment of military commissions: military necessity."

"Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime,41 but it is not an offense that "by the law of war may be tried by military commissio[n]."

"Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment."

"Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the "rules and precepts of the law of nations," Quirin, 317 U. S., at 28--including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U. S., at 20-21, 23-24. The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws."

"The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts"

Notice a trend? Reread what I said about the Conventions and how they cover EVERY person involved in an armed conflict.

Originally Posted by SimeyTheLimey

Nowhere did the Court suggest that holding detainees indefinitely is legally wrong. In fact, to reiterate, the Court said the opposite:

It also didn't say that Cookies and Cream is better than Vanilla. Maybe because it wasn't asked that question! I understand that the court has not said anything about the detentions being unlawful. Maybe if it had had to decide on that matter, it would have agreed with practically everyone else that has ever been asked for an opinion. The fact that the court has said that in terms of the Geneva Conventions and the US's own rules as they stand today, Hamdan cannot be given a military trial is a huge blow for the government and another nail in Guantanamo's coffin.

I don't think it's over yet, but baby steps. Gitmo is slowly dying. At least the Supreme Court is starting to question some of the crazy interpretations this Administration has invented.

[SimeyTheLimey]

Originally Posted by Troll

The Supreme Court has dealt a massive blow to your interpretation by saying that Hamdan can't be tried by a military tribunal and that the crime he is charged with is not a violation of the rules of war.

No, the Supreme Court said neither thing. You are misreading it.

The core holding isn't that Hamdan can't be tried by a military tribunal. It is that he can't be tried by the particular military tribunal convened by Military Order Number 1 and that was the subject of the habeas petition. The reason is that this particular tribunal was deemed to be inconsistent with preexisting statutory provisions in the Uniform Code of Military Justice. All that needs to happen now (and statements from Congress suggest this is what will happen) is for Congress to go back and issue new legislation.

If you don't believe me, read the opinion. And if that isn't simple enough for you, read Justice Breyer's concurrence, because he spells it out.

On the issue about the crime being not a crime of the laws of war, that is only the plurality speaking. Justice Kennedy did not join Part V of the Stevens opinion. So that part of the opinion did not command a majority and is as legally void as the dissents. Kennedy also says so expressly in his concurrence.

On the issue of the government's authority to hold detainees indefinitely, it is true that in this case it wasn't argued. But if that issue were as you say and for reasons as clear as you suppose, then it would have been raised -- because a disposition of that issue would have freed Hamdan. In fact, the court has stated in both this case and in the Hamdi case that it does not question the right of the government to detain persons captured on the battlefield indefinitely and it said it predicated both opinions on that assumption.

Since the Court has now twice predicated decisions on the unchallenged assumption that unlawful combatants (which the Court in Hamdi agreed existed) may be held indefinitely, they are not being held as civilians and the Court is not requiring that they be treated as civilians. Civilians can't be detained indefinitely. You may have academics on your side, but I have the Supreme Court of the United States.

Now, go re-brief the case. You misunderstood its holding and failed to count justices. A first year law student would be humiliated to do either.

[Troll]

Originally Posted by SimeyTheLimey

No, the Supreme Court said neither thing. You are misreading it.

Of course I am. Every time you're shown to have zero understanding of the Geneva Conventions, it's everyone else who's wrong. What's embarrassing is how you cling to your argument while you're proven wrong time and again. Go back and read what you've written about the Geneva Conventions. You've been wrong time and time again. To the point where you hid behind US law. Now even that shield is being taken away from you.

Originally Posted by SimeyTheLimey

The core holding isn't that Hamdan can't be tried by a military tribunal. It is that he can't be tried by the particular military tribunal convened by Military Order Number 1 and that was the subject of the habeas petition. The reason is that this particular tribunal was deemed to be inconsistent with preexisting statutory provisions in the Uniform Code of Military Justice.

I like the way you leave out the Geneva Conventions. Inconvenient for your argument perhaps? Scared to admit that international law is actually relevant?

I agree with what you say are the CORE holdings of the court. That doesn't mean the rest is irrelevant. You'll notice reading through the case how many non-core findings in other cases were relevant to this one. What I referred to is the court's interpretation of the Geneva Conventions. They say that the Executive's interpretation (which you've always agreed with) is wrong and they make statements like this that even though you don't like or disagree with, are in accordance with what everyone else has been saying: "The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts." If you don't think that's a statement that he needs to be treated like a civilian, then it's you who's embarrassing himself.

Originally Posted by SimeyTheLimey

All that needs to happen now (and statements from Congress suggest this is what will happen) is for Congress to go back and issue new legislation.

That would just get you out of this particular corner. There are a host of other issues that the defence raised and the court eluded to that it hasn't dealt with. The picture looks very bleak for your side reading what's written throughout the case.

Originally Posted by SimeyTheLimey

On the issue about the crime being not a crime of the laws of war, that is only the plurality speaking. Justice Kennedy did not join Part V of the Stevens opinion. So that part of the opinion did not command a majority and is as legally void as the dissents. Kennedy also says so expressly in his concurrence.

You know as well as I do the import of those statements. You can't just brush that aside as irrelevant. The Government's interpretation of the law is falling apart at the seams.

Originally Posted by SimeyTheLimey

Since the Court has now twice predicated decisions on the unchallenged assumption that unlawful combatants (which the Court in Hamdi agreed existed) may be held indefinitely

They have never interpreted the Geneva Conventions that way. That's all that's relevant to this debate. So when it comes to whether what the US is doing in Guantanamo is legal under the Geneva Conventions, you do NOT have the Supreme Court on your side. You don't even have the Supreme Court on your side when it comes to what the US is doing under your own domestic law.

[voodoo]

Terrorism is insignificant.

V

[SimeyTheLimey]

Originally Posted by Troll

Of course I am. Every time you're shown to have zero understanding of the Geneva Conventions, it's everyone else who's wrong. What's embarrassing is how you cling to your argument while you're proven wrong time and again. Go back and read what you've written about the Geneva Conventions. You've been wrong time and time again. To the point where you hid behind US law. Now even that shield is being taken away from you.
I like the way you leave out the Geneva Conventions. Inconvenient for your argument perhaps? Scared to admit that international law is actually relevant?

I agree with what you say are the CORE holdings of the court. That doesn't mean the rest is irrelevant. You'll notice reading through the case how many non-core findings in other cases were relevant to this one. What I referred to is the court's interpretation of the Geneva Conventions. They say that the Executive's interpretation (which you've always agreed with) is wrong and they make statements like this that even though you don't like or disagree with, are in accordance with what everyone else has been saying: "The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts." If you don't think that's a statement that he needs to be treated like a civilian, then it's you who's embarrassing himself.
That would just get you out of this particular corner. There are a host of other issues that the defence raised and the court eluded to that it hasn't dealt with. The picture looks very bleak for your side reading what's written throughout the case.
You know as well as I do the import of those statements. You can't just brush that aside as irrelevant. The Government's interpretation of the law is falling apart at the seams.
They have never interpreted the Geneva Conventions that way. That's all that's relevant to this debate. So when it comes to whether what the US is doing in Guantanamo is legal under the Geneva Conventions, you do NOT have the Supreme Court on your side. You don't even have the Supreme Court on your side when it comes to what the US is doing under your own domestic law.

Note the lack of law or analysis in this post.

[Troll]

Originally Posted by SimeyTheLimey

I agree with what you say are the CORE holdings of the court. That doesn't mean the rest is irrelevant. You'll notice reading through the case how many non-core findings in other cases were relevant to this one. What I referred to is the court's interpretation of the Geneva Conventions. They say that the Executive's interpretation (which you've always agreed with) is wrong and they make statements like this that even though you don't like or disagree with, are in accordance with what everyone else has been saying: "The accused also is entitled to a copy of the charge(s) against him, both in English and his own language (if different), to a presumption of innocence, and to certain other rights typically afforded criminal defendants in civilian courts." If you don't think that's a statement that he needs to be treated like a civilian, then it's you who's embarrassing himself.
That would just get you out of this particular corner. There are a host of other issues that the defence raised and the court eluded to that it hasn't dealt with. The picture looks very bleak for your side reading what's written throughout the case.
You know as well as I do the import of those statements. You can't just brush that aside as irrelevant. The Government's interpretation of the law is falling apart at the seams.
They have never interpreted the Geneva Conventions that way. That's all that's relevant to this debate. So when it comes to whether what the US is doing in Guantanamo is legal under the Geneva Conventions, you do NOT have the Supreme Court on your side. You don't even have the Supreme Court on your side when it comes to what the US is doing under your own domestic law.

Originally Posted by SimeyTheLimey

Note the lack of law or analysis in this post.

Note the utter inability to recognise law and comprehend analysis.

[pooka]

WHOOT!!!

Just like the old days!

[lil'babykitten]

^

[yakkiebah]

[Troll]

Originally Posted by pooka

WHOOT!!!

Just like the old days!

Nice PS work!

[voodoo]

Love ya pooka!

V

[analogika]

Originally Posted by SimeyTheLimey

Uh, Troll. [...] You have said repeatedly that a terrorist is a civilian.

That is a LIE.

Troll has gone out of his way at least a half-dozen times on this page alone to explain to you that they are TREATED the same way under the Geneva Convention, not that they ARE the same.

[Troll]

Now that I have some time, here are a few reasons why I think this case is important.

1) Hamdan was charged with conspiracy to commit acts of terrorism. The court said that conspiracy to commit an act of terrorism is not a war crime. That's quite a big hit for the Administration to take because it means that they will only be able to use the rules of war against people that have actually committed violent acts not against people that have aided and abetted violent acts. The rest will have to be treated as civilians.

2) The court said that the Geneva Conventions and the uniform rules mean that the people at Gitmo are, as a minimum, entitled to humane treatment. We can argue about whether the treatment we've seen in photographs is humane, we can argue whether denying them legal representation, communication with their families, not charging them and other things that have transpired during Gitmo are humane, but the court said explicitly that the military commissions that the President wanted to use do not comply with the standard. The court said the Geneva Conventions create a minimum right prohibiting trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilised people," and that the President's proposal does not apply the minimum protections under the GCs. That is, the court thinks that the President's concept of justice is uncivilised.

3) The court's finding that detainees must be treated humanely has far-reaching implications for other parts of its "War on Terror" and this will inevitably affect how they do interrogations.

4) The case rejects the Administration's contention that the Geneva Conventions do not apply to people held at Guantanamo. The Administration's position at one stage was that "unlawful combatants" fall into a legal black hole and have no rights. This is clearly not tenable.

5) Simey's argument was that what the US was doing at Gitmo was consistent with the Geneva Conventions. In fact, Simey argued that the US was doing more than they were required to because consistent with the Geneva Conventions, "unlawful combatants" could be "summarily executed" (he later qualified "summary" as meaning after they are inevitably found guilty in a trial) because they had forfeited their rights by becoming combatants. I (and others) said that under the Geneva Conventions, people accused of being "unlawful combatants" have a number of rights: a) to be treated with humanity; b) to not be deprived of the rights of fair and regular trial; c) to be granted the full rights and privileges that a civilian has as soon as security permits and d) the right not to be removed from the territory in which they were captured. The court agrees with us in respect of the rights that they were required to look at (a) and b) above), in their expose on the history of military trials, they hinted at c) and I don't see any reason why they wouldn't agree with both c) and d) were they asked the question. Now that the more substantive questions of a) and b) are out of the way, lawyers for a number of Gitmo detainees have said that they will bring other actions. Simey is right that the court didn't say that the detainees must be released - they weren't asked to consider that. But you can bet your bottom Dollar that now that this matter has been settled, they will be asked that question.

6) The GCs are clear that there are only two classes of people involved in an armed conflict - Prisoners of War entitled to special protection and everyone else (including "unlawful combatants"). The standard for trials that the Supreme Court has set for Gitmo detainees is no different from the standard set in the GCs for civilians accused with war crimes. So, much to Simey's chagrin, the court is effectively reinforcing what is already patent in the GCs - that combatants other than POWs are treated the same way as civilians. Simey's argument was these two "approaches" to justice were mutually exclusive - he said that you had to choose whether you prosecuted terrorism as a war or as a criminal matter. The distinction is irrelevant because the laws of war that the court has confirmed apply to terrorists, require that you treat terrorists the same way as any other criminal.

[SimeyTheLimey]

Originally Posted by Troll

Now that I have some time, here are a few reasons why I think this case is important.

1) Hamdan was charged with conspiracy to commit acts of terrorism. The court said that conspiracy to commit an act of terrorism is not a war crime. That's quite a big hit for the Administration to take because it means that they will only be able to use the rules of war against people that have actually committed violent acts not against people that have aided and abetted violent acts. The rest will have to be treated as civilians.

For the second time, the Court did not say that. Read the opinion. Part V, the part where that is discussed, was not joined by Justice Kennedy. That part of the opinion only represents a plurality. The majority did not hold that, and so it isn't part of the opinion. Justice Stevens, Ginsberg, and Breyer are of that opinion, but Justices Kennedy, Scalia, Alito and Thomas either disagreed or did not join that part of Stevens' opinion. (And Chief Justice Roberts did not participate because he wrote the opinion below that was overturned). So that statement you make about the court holding that international law does not include conspiracy is simply not true.

If you can't read a Supreme Court case you ought not to be commenting on it. You have to count the justices for each part of the opinion. When Justices like Justice Kennedy say that they aren't joining a part of an opinion, you have to see whether that part still commands a majority. Here, it did not command a majority. This is something first year law students learn. I don't know how it is done in your country, but that is how it works here.

By the way, I am quite happy with what Justice Stevens and the Court held. It is consistent with what I argued at least two years ago. It is not what the Bush Administration argued, but it is the position I articulated. Two years ago I said that Common Article 3 provides the floor and the Court so held. I also said that terrorists are combatants who can be held for the duration of hostilities (unlike civilians who cannot he held for the duration), and the Court (in dicta) made clear (now in two separate opinions) that it agrees. If the detaining power chooses to try them for war crimes, then the detainee gets roughly the same protections as a soldier in the detaining power's armed forces. That has always been my understanding, and I am fine with that. But the Court nowhere has said that the detainee has a right to a trial. He doesn't, any more than a POW would.

And while I wouldn't have held the same way on the jurisdiction stripping part of the case, I was far from surprised. I'm always suspicious of jurisdiction stripping for basically the reasons Professor Amar has written about. So really, I am pretty happy with the opinion -- those parts of it that are law, that is.

So Troll, you do need to learn how to read US cases if you are going to comment on them. Calling dicta by a plurality a holding is just laughable. It's a first year law student mistake.

I'll add also that if you are basing all of your jubiliation on your predictions of what might happen in future cases, I suspect you will be disappointed. This case only came out the way it did because Chief Justice Roberts recused himself. But for that it would probably have been 5:4 in the other direction. There is also a nice little wrinkle vis a vis the Detainee Treatment Act that I will let you learn about the hard way.

[SimeyTheLimey]

Originally Posted by analogika

That is a LIE.

Troll has gone out of his way at least a half-dozen times on this page alone to explain to you that they are TREATED the same way under the Geneva Convention, not that they ARE the same.

They aren't treated the same way as civilians. Troll points out some of the things you can't do to a civilian -- hold for the duration of hostilities without trial, remove from the country, etc. Since the Court went out of its way (now in two separate cases) to say it doesn't dispute the power of the government to do those things, it is not requiring them to be treated as civilians.

What the Court is doing is requiring them to be held as combatants. But once again, the Court declined to rule on whether that means they have to be POWs. Of course, they don't meet the test in the GC for POW treatment. So if they are combatants, but don't meet the test that would make them lawful combatants, then they are apparently unlawful combatants. That is, of course, a category that Troll denies exists, but which the Supreme Court has previously recognized in Hamdi.

[Troll]

Originally Posted by SimeyTheLimey

So that statement you make about the court holding that international law does not include conspiracy is simply not true.

Did I use the word "hold". Hmm, no I didn't. The point is that the argument that conspiracy is part of international law is now more difficult than it was before.

Originally Posted by SimeyTheLimey

Two years ago I said that Common Article 3 provides the floor and the Court so held.

That is not what you said two years ago. I read the links you provided in the other thread. The argument you made there isn't even close to what the court said. You were using common article 3 to allege war crimes on the part of Iraqi insurgents - nothing at all to do with Gitmo or the court's argument. You have never said that the people at Gitmo are protected by common article 3 of the GCs.

The court said that there was no need to go into the detail of the Geneva Conventions in this case, because it held, that as a minimum, common article 3 applied to all of the people at Gitmo. It said that this common article guaranteed the detainees rights that weren't being afforded them. The court has specifically left the question of interpretation of the GCs open.

Your argument has always been that there are three classes of person under the GCs - civilians, lawful combatants and unlawful combatants. You've said that combatants are by definition not civilians. You've said that "an unlawful combatant is in a category all of his own". You've said that unlawful combatants have none of rights afforded other persons under the GCs. And you've explained that the reason they have no rights is because the GCs don't want to encourage their type of behaviour.

My argument has been that there are only two categories of person under the Geneva Conventions - Prisoners of War and everyone else. That is, under the Geneva Conventions, unlawful combatants like Al Qaeda do have rights and are the same as civilians accused of crimes. In analysing the GCs, the court did not agree with your three categories. It held that common article 3, at the very least, applies to Al Qaeda. The court therefore held that Al Qaeda members are treated the same as civilians or any other person. That seems a heck of a lot closer to the argument I've been making than it is to yours.

Originally Posted by SimeyTheLimey

I also said that terrorists are combatants who can be held for the duration of hostilities (unlike civilians who cannot he held for the duration), and the Court (in dicta) made clear (now in two separate opinions) that it agrees.

Mind showing us that dictum. I don't see a dictum saying that the Gitmo people can be held indefinitely without trial.

Originally Posted by SimeyTheLimey

If the detaining power chooses to try them for war crimes, then the detainee gets roughly the same protections as a soldier in the detaining power's armed forces. That has always been my understanding, and I am fine with that. But the Court nowhere has said that the detainee has a right to a trial. He doesn't, any more than a POW would.

You're still completely confused about what the GCs say. The GCs do not separate civilians from combatants; they separate Prisoners of War from the broad class of everyone else. They cover every single person captured in a war. They say that if someone is a combatant at the time they're picked up, then they need to be treated as a POW. POWs have canteens, they can't be interrogated etc. - Gitmo is not a POW camp. The GCs say that everyone else captured in a war zone, must be treated as a civilian. If one of these people is accused of the crimes that traditionally made them "unlawful combatants" such as spying or sabotage, then their rights can be limited in the ways I already described. Again, Gitmo doesn't comply.

What the court has said here is that the GCs do apply and that as a minimum, the detainees must be treated humanely and tried by proper courts rather than the Kangaroo courts the Administration wants to apply. The reason this is encouraging to me is because it confirms that the people at Gitmo are entitled to the protection of the GCs and are to be treated the same way as anyone else would be treated under common article 3, not as a separate class. It undermines the argument that the GCs either do not apply or do apply but create no rights for people accused of being "unlawful combatants." It means the "gloves off approach" that you were so in favour off is out the window. Gloves are on.

Now you might be happy with the court's findings, but if you go back and read what you were writing in 2003 - saying that Gitmo detainees could have been summarily executed, saying that Gitmo was perfectly legal, then I'm surprised you don't see this as a major blow to your side. I won't post press articles because your response will be that the press doesn't understand the law, but I think you'll have to agree reading the articles and the responses that pretty much everyone else on your side of the fence finds this to be a pretty major shock to the system.

[SimeyTheLimey]

Troll, you seem to have a childish interest in reliving conversations of the past. Apparently it deeply wounded you that you weren't able to defeat a law student on this matter. As I said, I argued back as long ago as November 2004 that common article 3 provides a floor for how the US as a signatory treats anyone. That would apply equally to al-Queda or Ba'athists caught in Iraq as it would to an al-Queda operative like Hamdan caught in Afghanistan. The locality doesn't matter so long as he is caught on the territory of a high contracting party. It's really more of a restriction on the US as a signatory than it is a grant of rights to the detainee.

That is my view now, and it was my view before Hamdan and at least as far back as November 2004. It's quite possible that I changed my views about the GC between 2003 and 2004. I took a class sometime around there and during that class I learned more about the treaties. Unlike you I am willing to change my opinion when I encounter a persuasive argument -- it is just that you have never made such an argument. However, in my class I was persuaded that common article 3 provided a floor of protection. But it is much lower than the protections accorded POWs or civilians. Now, to my way of thinking, the fact that there are indeed three levels of GC protection strongly implies that there are three categories of persons. If there were only two categories of persons - civilians and POWs, then there would be no work for common article 3.

Second, your assertion that the plurality statements about whether international law allows charges for conspiracy making it "harder" for the government to bring such a charge, I don't think that is so. Four Justices argued that. Four justices either declined to follow, or expressly disagreed, and the fifth is certain to do so in the future. So it isn't the law and is just a minority view. It's really of less interest than the dissents of Justices Thomas or Alito, but I notice you aren't trying to mislead your readers that those dissents represent the opinion of the court. It is either that, or you didn't know that wasn't part of the opinion. But I already told you it is not.

The language about not challenging the government's ability to hold Hamdan indefinitely is on the last page, just above Justice Stevens signature. You seem to be the only person who has missed it. For example, SCOTUSBLOG spotted it within 30 seconds of the opinion being published. It is actually not dicta. I'm being conservative when I called it dicta, but dicta is those parts of an argument not necessary to the decision. Here, the Court says it assumed various things in its argument. So arguably, the assumptions are things necessary to the conclusion, and are not dicta. The Court assumed:

We have assumed, as we must, that the allegations made in the Government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge--viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

Moreover, I was being overly conservative to say that the Hamdi language is dictum. Here is the relevant portion of the Hamdi opinion, expressly recognizing the power of the government to hold unlawful combatants (which is what the govenment claimed Hamdi was) for the duration:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when 'no quarter' was the rule on the battlefield ... . It is now recognized that 'Captivity is neither a punishment nor an act of vengeance,' but 'merely a temporary detention which is devoid of all penal character.' ... 'A prisoner of war is no convict; his imprisonment is a simple war measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released" (footnotes omitted)).

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

From these opinions, certain rules are emerging. They seem to be as follows:

* Terrorists and other unlawful combatants can be held indefinitely, rather like a POW. However, they are not given Article 4 rights as POWs.

* Terrorists and other unlawful combatants do not get the protections accorded civilians in occupied countries. E.g. they can be removed from their countries and held indefinitely without a trial.

* If the terrorist or unlawful combatants is a US citizen, he has the constitutional right to a Habeas petition to challenge his status, but if he is not a citizen, he does not have that constitutional right. (The statutory habeas plea that was the subject of the Rasul decision has since been repealed).

* If terrorists or unlawful combatants are tried (whether to hold a trial is at the discretion of the detaining power, see the express text of the GC and the Hamdan language quoted above), then certain minimal due process protections apply. The Court has to be "regularly constituted" which Stevens doesn't completely describe, but suggests is coincident with the protections that were in the UCMJ at the outbreak of hostilities after 9/11.

* Congress has to set the rules for any trials, if trials are held. Congress is going back and will likely pass such a new set of procedures. If it does not do so, then Hamdan will simply sit in detention.

* It is also pretty clear from the above, that the legal rules of war apply to the defense against terrorism. Governments are not restricted to the powers of civilian law enforcement. If it were, then such rules as Miranda would apply, as well as the Sixth Amendment, and you certainly could not hold someone indefinitely without trial. So that fundemental question appears to have been answered.

By the way, I agree with you that the Hamdan may have an impact on interregations. Unlike you, I am willing to read a case fairly for all of its implications, not just the ones I might choose. There are statutory provisions that already reference common article 3. In particular, 18 USC s. 1441(3)(c) (cite from memory) refers to common article 3 as one definition of a war crime. This will have an impact going forward now that the Court has issued its Hamdan opinion. In fact, it is further evidence to me that the government was wrong to argue that common article 3 wasn't relevant as a restriction on the US. It is, which is the opinion I have held for a good couple of years now. But overall, I am pretty happy with the result. The War on Terror goes on.

[Troll]

Originally Posted by SimeyTheLimey

Troll, you seem to have a childish interest in reliving conversations of the past. Apparently it deeply wounded you that you weren't able to defeat a law student on this matter.

LOL. Yeah, I balled myself to sleep! Wuddeva, Simey, tell the hand that contrary to popular belief, the Bush Administration's interpretation is winning through just you predicted.