[SimeyTheLimey]

Originally posted by Lerkfish:
so....you feel it is inherently impossible for the us to be genuine violators in regard to gitmo bay?

Your words, not mine. Ayelbourne and I were talking about the US death penalty.

Personally, I think this is a little more significant.

In the remote north-eastern corner of North Korea, close to the border of Russia and China, is Haengyong. Hidden away in the mountains, this remote town is home to Camp 22 - North Korea's largest concentration camp, where thousands of men, women and children accused of political crimes are held.

Now, it is claimed, it is also where thousands die each year and where prison guards stamp on the necks of babies born to prisoners to kill them.

Over the past year harrowing first-hand testimonies from North Korean defectors have detailed execution and torture, and now chilling evidence has emerged that the walls of Camp 22 hide an even more evil secret: gas chambers where horrific chemical experiments are conducted on human beings.

Witnesses have described watching entire families being put in glass chambers and gassed. They are left to an agonising death while scientists take notes. The allegations offer the most shocking glimpse so far of Kim Jong-il's North Korean regime.

Kwon Hyuk, who has changed his name, was the former military attach� at the North Korean Embassy in Beijing. He was also the chief of management at Camp 22. In the BBC's This World documentary, to be broadcast tonight, Hyuk claims he now wants the world to know what is happening.

'I witnessed a whole family being tested on suffocating gas and dying in the gas chamber,' he said. 'The parents, son and and a daughter. The parents were vomiting and dying, but till the very last moment they tried to save kids by doing mouth-to-mouth breathing.' [more]

The Guardian.

[Dudaev's Corpse]

That's terrible. And all this time I thought NK was just a freak show and yet another failed nation-state. But this...this is revolting, and Kim's death--timely or no--would be welcome indeed.

[Ayelbourne]

Originally posted by SimeyTheLimey:
They are entitled to that point of view. But that's not where international human rights law is, and Americans are well within their rights to decide this issue for themselves, democratically. However, that doesn't alter the fact that Amnesty does good work when it is covering genuine violators of human rights.

Although state-sponsored executions are relevant in relation to the Guant�namo detainees, as they could possibly face sentencing to execution as a result of military tribunals, I don't want to debate capital punishment in this thread, since I am sure it would rapidly derail it.

What Amnesty International feels is of supreme importance in the issue is that the detainees either be charged and brought to fair trial or released. Every person has a right to challenge the lawfulness of their detention. The International Committee of the Red Cross has repeatedly called on the U.S. to clarify the legal status of the detainees. Despite the Bush administration's labelling of the detainees as "vicious killers" and "terrorists" with direct links to the terrorist attacks on September 11th, 2001, several detainees have been released with no charges, further increasing concerns over the status of the remaining detainees and the legitimacy of their detainment. The president has signed a Military Order that establishes trial by military commissions which have the power to hand down death sentences - sentences with no right of appeal in any court. This is even more troubling in light of the fact that Secretary of Defence Donald Rumsfeld has stated plainly that foreign nationals will receive a lower standard of justice than would American citizens.

Also, as I remarked earlier, AI believes that the United States' selective adherence to the provisions of international humanitarian law sets a very dangerous precedent and that it will undermine the ability to safeguard the rights of American (and other countries') combatants captured in future conflicts.

President Bush has repeatedly stated that the United States stands for and will fight for the "non-negotiable demands of human dignity", including the rule of law, but the situation in Guant�namo empties his words of meaning and sincerity - and certainly does nothing to bolster the administrations' beleaguered credibility.

[Troll]

No one should be under any illusions that the United States is a bastion of human rights. Its human rights track record is actually rather miserable. Guantanamo is one of the rather obvious abuses of human rights, but it's certainly not the only one.

On the topic of the Guantanamo prisoners, Rumsfeld said this week:

They're enemy combatants and terrorists who are being detained for acts of war against our country. That is why different rules apply.

Now they're "enemy" combatants rather than "unlawful" combatants. Note how he says "they are" enemy combatants not "are accused of being" or "might be." I wonder if the same intelligence services that told Rumsfeld there were WMD under palm trees in Western Iraq told him that these people are enemy combatants and terrorists. Nice to play accuser, judge, witness and jury isn't it Mr. Rumsfeld. Judging by the numbers you've released, it seems that whoever told you these people were in the category "can be detained indefinitely without charge" made at least a few mistakes.

Actually, it doesn't take a brain surgeon to work out that some of them are "enemy combatants." In fact that's what we've been arguing all along. Unless Rummie has unsigned the Geneva Conventions, labelling them "enemy combatants" brings them even more squarely within the scope of the GC's. I wonder whether the "different rules" (let's call them the "Rumsfeld Rules of War") are rules that the US really wants to apply.

Consider whether an American soldier invading Iraq is "an enemy combatant committing an act of war against Iraq"? If he is, then the Rumsfeld Rules of War would apply to holding him or her. Iraq could therefore have spirited Jessica Lynch out of Iraq and held her indefinitely without charge. Funny, I remember the US Army crying foul when Iraq just showed American POW's on TV. I remember them insisting that the GC rules applied.

[SimeyTheLimey]

Originally posted by Ayelbourne:
Although state-sponsored executions are relevant in relation to the Guant�namo detainees, as they could possibly face sentencing to execution as a result of military tribunals, I don't want to debate capital punishment in this thread, since I am sure it would rapidly derail it.

What Amnesty International feels is of supreme importance in the issue is that the detainees either be charged and brought to fair trial or released. Every person has a right to challenge the lawfulness of their detention. The International Committee of the Red Cross has repeatedly called on the U.S. to clarify the legal status of the detainees. Despite the Bush administration's labelling of the detainees as "vicious killers" and "terrorists" with direct links to the terrorist attacks on September 11th, 2001, several detainees have been released with no charges, further increasing concerns over the status of the remaining detainees and the legitimacy of their detainment. The president has signed a Military Order that establishes trial by military commissions which have the power to hand down death sentences - sentences with no right of appeal in any court. This is even more troubling in light of the fact that Secretary of Defence Donald Rumsfeld has stated plainly that foreign nationals will receive a lower standard of justice than would American citizens.

Also, as I remarked earlier, AI believes that the United States' selective adherence to the provisions of international humanitarian law sets a very dangerous precedent and that it will undermine the ability to safeguard the rights of American (and other countries') combatants captured in future conflicts.

President Bush has repeatedly stated that the United States stands for and will fight for the "non-negotiable demands of human dignity", including the rule of law, but the situation in Guant�namo empties his words of meaning and sincerity - and certainly does nothing to bolster the administrations' beleaguered credibility.

I'm afraid you are basically wrong on every point. For example, the no appeals part. The UCMJ has two appeals courts. One is the U.S. Court of Appeals for the Armed Forces, which has civilian judges (I happen to walk by its building daily), and beyond that, the US Supreme Court. Military tribunals fall under the UCMJ, which is the set of rules used for US military personnel. This is as required by the Geneva Convention.

This, of course, assumes that there will be trials, which, of course, is the exception, not the norm for POWs (or in this case, more accurately, unlawful combatants being treated as POWs).

[SimeyTheLimey]

Originally posted by Dudaev's Corpse:
That's terrible. And all this time I thought NK was just a freak show and yet another failed nation-state. But this...this is revolting, and Kim's death--timely or no--would be welcome indeed.

What surprises me is that nobody seems interested. Maybe everyone missed the story but it's over 2 weeks old. I'm sure at least somebody read it. I can't help wondering why there is apparently no interest in a story from a respected paper of the left about North Korea gassing men, women, and children?

Don't answer, it's a rhetorical question. Just something to ponder.

[Ayelbourne]

Originally posted by SimeyTheLimey:
What surprises me is that nobody seems interested. Maybe everyone missed the story but it's over 2 weeks old. I'm sure at least somebody read it. I can't help wondering why there is apparently no interest in a story from a respected paper of the left about North Korea gassing men, women, and children?

Don't answer, it's a rhetorical question. Just something to ponder.

Amnesty International is interested and has been putting what pressure it can on the North Korean government for some time.

AI INDEX: ASA 24/002/2003 - North Korea: Human Rights Violations

If you are concerned, you can help.

[SimeyTheLimey]

Originally posted by Ayelbourne:
If you are concerned, you can help.

I already joined a more effective human rights organization.

[Ayelbourne]

Originally posted by SimeyTheLimey:
I'm afraid you are basically wrong on every point.

How so? You only addressed one:

Originally posted by SimeyTheLimey:
For example, the no appeals part. The UCMJ has two appeals courts. One is the U.S. Court of Appeals for the Armed Forces, which has civilian judges (I happen to walk by its building daily), and beyond that, the US Supreme Court. Military tribunals fall under the UCMJ, which is the set of rules used for US military personnel. This is as required by the Geneva Convention.

This, of course, assumes that there will be trials, which, of course, is the exception, not the norm for POWs (or in this case, more accurately, unlawful combatants being treated as POWs).

The UCMJ has yet - to my knowledge - to be connected to this issue.

From the President's Military Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism:

(b) With respect to any individual subject to this order --

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

Amnesty's assessment of the lack of independence from the executive under the Military Order, as stated in Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guant�namo Bay:

Principle 1 of the UN Basic Principles on the Independence of the Judiciary states: ''The independence of the judiciary shall be guaranteed by the State... It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.'' The Military Order gives unfettered and unchallengeable discretionary power to the executive to decide whom will be prosecuted and under what rules, as well as to review convictions and sentences. This is inconsistent with the principle of the separation of the executive and the judiciary. Between them, the President and the Secretary of Defence (or his designee) will have the power under the Military Order to:

- name who will be tried by the military commissions;
- appoint military officers to be members of the commissions, and to remove them;
- determine how large the ''jury'' of commissioners will be in any particular trial;(194)
- designate which member will serve as ''judge'' to preside over the proceedings;(195)
- appoint the Chief Prosecutor, a judge advocate (lawyer) of the US armed forces;
- appoint the Chief Defense Counsel, a judge advocate of the US armed forces;
- revoke the eligibility of any official to appear before the commissions;
- approve the charges prepared by the prosecution;
- approve plea agreements;
- vet the level of investigative or other resources to be made available to the defence;(196)
- decide which parts of the proceedings should be held in camera,(197) and decide whether open proceedings may include attendance by the public and accredited media;
- pick the panel of three military officers (or civilians temporarily appointed as military officers) who would review the trial record;
- make the final decision in any case, including in death penalty cases whether a condemned defendant will live or die;
- amend the operating procedures of the commissions at any time, within the scope of the Military Order of 13 November 2001.

Article 14(1) of the ICCPR requires that all trials be conducted by a ''competent, independent and impartial tribunal established according to law''. The Human Rights Committee, the expert body set up by the International Covenant on Civil and Political Rights to monitor that treaty's implementation, has stated that the right to trial by a competent, independent and impartial tribunal is ''an absolute right that may suffer no exception''.(198) The military commissions will not be independent. As executive officials, the impartiality of its members could not be guaranteed. None of the commission members would have the same security of tenure as civilian judges. In fact, any of them, including the Presiding Officer, could be removed by the Secretary of Defence ''for good cause''.(199) Indeed, a military commission would not be a court ''established according to law'', as required by Article 14, but an executive body set up by presidential order.

[Ayelbourne]

Originally posted by SimeyTheLimey:
I already joined a more effective human rights organization.

Hmmm. The flippant quality of that one leaves me with the impression that perhaps your concern for the North Koreans was as rhetorical as your question. Then again, maybe you're just winding me up.

Oh well... you know where we are, if you change your mind and decide you want to help out. We could always use more.

[SimeyTheLimey]

Originally posted by Ayelbourne:
Hmmm. The flippant quality of that one leaves me with the impression that perhaps your concern for the North Koreans was as rhetorical as your question. Then again, maybe you're just winding me up.

Oh well... you know where we are, if you change your mind and decide you want to help out. We could always use more.

Flippant? The US Army has liberated more people and done more to advance the cause of human rights than any other organization. Certainly more than human rights organizations. That's not a flippant point, it's a fact.

However, as I have said, I admire much of the work that Amnesty has done. Unfortunately, their positions on issues like the death penalty and Guantanamo alienate me and as a consequence, I can't (or at least, won't) join them. If they would drop those chic issues and stick to exposing the really gross human rights violations, I'd be happy to support them.

[Lerkfish]

Originally posted by SimeyTheLimey:
I already joined a more effective human rights organization.

LOL! that's certainly calling black, white.

[SimeyTheLimey]

Originally posted by Ayelbourne:
How so? You only addressed one:



The UCMJ has yet - to my knowledge - to be connected to this issue.

It is connected by definition. The section you quote is, to my knowledge, designed to prevent pre-trial habeas appeals to outside courts. That's not the same thing as saying there is no right to appeal post-conviction. For that the usual UCMJ appeal chain would apply since military tribunals are (or will be, and always have been in the past) constituted under the UCMJ, a federal statute.

If you read that executive order more carefully, that becomes clear. It talks about military tribunals having original jurisdiction. That means those are the trial courts. It also instructs the Secretary of Defense to promulgate detailed regulations, including for post-trial procedures (i.e. appeals). It simply doesn't say as a legal matter what you say it says.

If you look back at the precedents, you can see the same mechanism in practice. There isn't really any new ground being broken here. The military court system is separate from, but analogous to, the civilian court system. It has the same system of appeals, only the court of appeals is a non-Article III court. Final appeals go to the Supreme Court, just as with civilian trials.

But as we have discussed, there is no legal reason for trials at all. POW's are usually just held until the close of hostilities. It is simply in this case that there are possible war criminals among the detainees. They ought for justice's sake be tried and punished accordingly. And the proper place for those trials is in military tribunals. That is precisely what the Geneva Convention requires. It requires the governing law to be the military law of the detaining power. I'm afraid your Amnesty memorandum is legally wrong. It would require the US to violate the Geneva Convention.

[Ayelbourne]

Originally posted by SimeyTheLimey:
Flippant? The US Army has liberated more people and done more to advance the cause of human rights than any other organization. Certainly more than human rights organizations. That's not a flippant point, it's a fact.

Well, I am not going to touch that one. You are certainly entitled to your opinion, and your mind seems firmly made up, so we'll move on...

Originally posted by SimeyTheLimey:
However, as I have said, I admire much of the work that Amnesty has done. Unfortunately, their positions on issues like the death penalty and Guantanamo alienate me and as a consequence, I can't (or at least, won't) join them. If they would drop those chic issues and stick to exposing the really gross human rights violations, I'd be happy to support them.

Well, there's the rub. Amnesty International considers the death penalty to be a gross human rights violation, and not a "chic" cause celebre. Our minds are firmly made up on that. It's a pity that your pro-execution stance prevents you from assisting with many other worthy causes, like freeing prisoners of conscience, applying pressure on the North Korean government, etc..

[Ayelbourne]

Originally posted by SimeyTheLimey:
I'm afraid your Amnesty memorandum is legally wrong. It would require the US to violate the Geneva Convention.

Well, in deciding between your legal assessment and the practiced and careful legal assessment of Amnesty International, I am going to stick with Amnesty's. I've read the documents carefully (despite your assertion) and, though I am but a layman, I concur with AI's assessment. Also, as I believe I have mentioned previously in the forum, Amnesty already considers the U.S. to be in violation of the Geneva Convention.

I feel it pertinent to insert this segment of Amnesty's policy statement, for the benefit of those who may not be familiar with it:

"AI is independent of any government, political ideology, economic interest or religion. It does not support or oppose any government or political system, nor does it support or oppose the views of the victims whose rights it seeks to protect. It is concerned solely with the impartial protection of human rights."

[SimeyTheLimey]

Originally posted by Ayelbourne:
Well, there's the rub. Amnesty International considers the death penalty to be a gross human rights violation,

I know they do. But I disagree and I have codified international law on my side on that one. After all, the memo you linked to cited the Covenant on Civil and Political Rights on another point. The Covenant expressly permits the death penalty. Either that is an authentic statement of human rights law, or it is not. You can't have it both ways.

Secondly, I can understand why you would prefer Amnesty's interpretation of US law to mine. But likewise, I hope that you can understand that I trust my own read of the law over that of a pressure group. I read them as making assertions that aren't backed up by a fair reading of the law in question. That discredits them in my eyes.

It's also unlikely to endear that argument if presented in US courts deciding on the legality of the procedures set forth in the Executive Order and Regulations. But I think for groups like Amnesty, this has little to do with the law, and much more to do with public relations (and sadly, fundraising).

[Ayelbourne]

Originally posted by SimeyTheLimey:
Secondly, I can understand why you would prefer Amnesty's interpretation of US law to mine. But likewise, I hope that you can understand that I trust my own read of the law over that of a pressure group. I read them as making assertions that aren't backed up by a fair reading of the law in question. That discredits them in my eyes.

And I can understand why you would prefer the U.S.'s interpretation to Amnesty's, but Amnesty International is not the entity currently labouring under a deficit of credibility in the world at large right now (that would be President Bush's administration). With over 40 years experience in monitoring human rights situations, I'm still going to go with AI.

Originally posted by SimeyTheLimey:
It's also unlikely to endear that argument if presented in US courts deciding on the legality of the procedures set forth in the Executive Order and Regulations. But I think for groups like Amnesty, this has little to do with the law, and much more to do with public relations (and sadly, fundraising).

Yup, you guessed it: we don't really care one whit about the situation in Guant�namo or underage offenders being executed in Texas, we're just in it for that easy, easy money.


Okay, I'm done with this thread.

[SimeyTheLimey]

Originally posted by Ayelbourne:
And I can understand why you would prefer the U.S.'s interpretation to Amnesty's, but Amnesty International is not the entity currently labouring under a deficit of credibility in the world at large right now (that would be President Bush's administration). With over 40 years experience in monitoring human rights situations, I'm still going to go with AI.

That's not what I said. I said I was going with my interpretation of the documents. Actually, I haven't seen a complete summary of the government's position on this issue. So far as I know, the regulations haven't been published yet.

Secondly, the public relations aspect (what you call the "deficit of credibility") is irrelevant to whether or not something is legal under US law, or international law.

Thirdly, yes, Non-Governmental Organizations raise funds. Just because an NGO plants a halo over its head does not mean that they are above question.

Fourthly, you throw in a curve ball when you talk about "juvenile executions." Personally, I think that there is a human rights law point with respect to juvenile executions. But that legal question is separate from the wider question of the death penalty itself. That is unequivocally permitted in international human rights law -- all assertions to the contrary notwithstanding.

[Troll]

Originally posted by SimeyTheLimey:
That is unequivocally permitted in international human rights law -- all assertions to the contrary notwithstanding.

Most countries on this planet consider the death penalty to be a gross violation of human rights and there is sound legal argument to say that it is illegal under international law.

That aside, many things are permitted under international law that we don't like to see happening. Compulsory female circumcision and stoning adulterers to death are also technically permitted under international human rights law.

The fact that international law permits the US government to murder people doesn't mean that the US in not a GENUINE violator of human rights. There is no scale of human rights abuses but if there was, abuses of the right to life would be right up near the top. When it's abused, it leaves the victim without any rights at all.

[Wiskedjak]

Originally posted by SimeyTheLimey:
But I think for groups like Amnesty, this has little to do with the law, and much more to do with public relations (and sadly, fundraising).

Likewise, I think for groups like the Bush Administration, this also has little to do with the law, and also much more to do with public relations (and, sadly, re-election)

[Mister Elf]

Damn. Waste of a good naval base.

Can't they put that scum somewhere else...like Pluto?

[spiky_dog]

i just finished "life and death in shanghai" by nien cheng. it's surprisingly relevant to this thread if you take a step back, and directly relevant to the north korea tangent.

http://www.amazon.com/exec/obidos/tg...nce&vi=reviews

[FeLiZeCaT]

Quote from Simey The Limey:

Thirdly, yes, Non-Governmental Organizations raise funds. Just because an NGO plants a halo over its head does not mean that they are above question.

________________________

Do you have anything juicy to say about Amnesty International?

[Spliffdaddy]

They're letting families be killed in North Korea.

[FeLiZeCaT]

Quote



Originally from Spliffdaddy:

They're letting families be killed in North Korea.



Please substantiate your statement.

Here is something for your eyes...

web.amnesty.org/pages/prk-170104-action-eng

and some more:

www.amnesty.org/results/is/eng

[eklipse]

Dude, learn to use the [quote] tags!

FFS!

[Logic]

Originally posted by SimeyTheLimey:
This, of course, assumes that there will be trials, which, of course, is the exception, not the norm for POWs (or in this case, more accurately, unlawful combatants being treated as POWs).

They are being treated as POW? Very interesting.....

So the Red Cross is allowed to send people to monitor how they are treated? No pictures have been shown of the detainees? Are they being treated like US detainees? Have they been released since the war in Afghanistan ended? And the list of questions goes on........

[Troll]

Originally posted by Logic:
They are being treated as POW? Very interesting.....

So the Red Cross is allowed to send people to monitor how they are treated? No pictures have been shown of the detainees? Are they being treated like US detainees? Have they been released since the war in Afghanistan ended? And the list of questions goes on........

Of course, Simey is just assuming that he knows what capacity they are being held in. The horse's mouth says otherwise. As I said above, Rumsfeld doesn't say they are unlawful combatants being treated as POW's. He says: "They're enemy combatants and terrorists who are being detained for acts of war against our country. That is why different rules apply."

Which makes zero sense (much like the rest of the Bush Administration foreign policy).

[SimeyTheLimey]

Originally posted by Troll:
Of course, Simey is just assuming that he knows what capacity they are being held in. The horse's mouth says otherwise. As I said above, Rumsfeld doesn't say they are unlawful combatants being treated as POW's. He says: "They're enemy combatants and terrorists who are being detained for acts of war against our country. That is why different rules apply."

Which makes zero sense (much like the rest of the Bush Administration foreign policy).

Ever had a client say something in layman's terms that is inconsistent with what his lawyers argue? My opinion is based on the arguments the Administration's lawyers have made in court. To me, that's the horse's mouth, not snippets from press conferences. Rummy is very bright, but he's not legally trained. That's why I'll base my opinion on the Administration's legal argument on lawyer's briefs and th eopinions of courts adjudicating the issues, not on the statements of laymen made to laymen in the press.

I'm also basing it in part on the comments of a professor of mine who is one of the Pentagon's lawyers. Of course, he only spoke in general terms. But I think I got a sense of what their argument is and it is not the way you characterize it.

(Sorry, this is name dropping, but it is the case that this is where I got some of my information, including the "frustrating client" comments -- although that wasn't specific to Rummy).

[Lerkfish]

Originally posted by SimeyTheLimey:
I'm also basing it in part on the comments of a professor of mine who is one of the Pentagon's lawyers.

This might explain the source of many of your legal arguments, particularly re: gitmo

[SimeyTheLimey]

Originally posted by Lerkfish:
This might explain the source of many of your legal arguments, particularly re: gitmo

What do you mean by that?

[Lerkfish]

Originally posted by SimeyTheLimey:
What do you mean by that?

no slight intended....you're being paranoid.

My point was that you seem well prepared to argue the administration's side in this issue, and I would presume having a pentagon lawyer as a law professor means the topic has come up, and he's presented the administration's case rather thoroughly.

Be the same thing if I had a law professor who was amnesty international's lawyer, and I thoroughly argued their POV in a discussion, one could assume I'd gleaned a lot information that would bolster my side.

Didn't you state as much? that you had "inside Information"? Just agreeing with you. Not everything I say is an attack against you...in fact, an extremely low percentage. You just always assume it is, like this time.

[SimeyTheLimey]

Originally posted by Lerkfish:
no slight intended....you're being paranoid.

My point was that you seem well prepared to argue the administration's side in this issue, and I would presume having a pentagon lawyer as a law professor means the topic has come up, and he's presented the administration's case rather thoroughly.

Be the same thing if I had a law professor who was amnesty international's lawyer, and I thoroughly argued their POV in a discussion, one could assume I'd gleaned a lot information that would bolster my side.

Didn't you state as much? that you had "inside Information"? Just agreeing with you. Not everything I say is an attack against you...in fact, an extremely low percentage. You just always assume it is, like this time.

OK, fair enough.

We didn't really discuss the Bush Administration's case on Guantanamo in any great detail. It came up, but only in the context of dicussing the black letter law in the general area of international humanitarian law. This wasn't really the class for anything more, and if you met him, you'd see that he's not really into arguing a partisan point on this, or anything else. He's a civil servant, not a partisan.

However, the little he said did confirm what I had already read and studied before. So to that extent, it was useful and I think relevant to Troll's assertion that what I have argued is very different from the government's legal position. It might not be exactly the same, but I think I am close.

Thank you, by the way, for your discussion of how an Amnesty International lawyer might brief the issue differently. One of the things I find frustrating is the idea that if an authority says the law is X, any other authority who disagrees must be misrepresenting something. In reality, these are not so clear cut issues. It's all debateable.

[Troll]

Originally posted by SimeyTheLimey:
Rummy is very bright...

lol! Right!

22 Feb 2003 - CNN
"A grim-faced US Defence Secretary Donald Rumsfeld said he did not know if the footage did in fact show American soldiers who had been captured.

But he warned that if it did, it violated the Geneva Convention governing treatment of prisoners of war.

'The Geneva Convention indicates that it's not permitted to photograph and embarrass or humiliate prisoners of war.'"

Rumsfeld a few days ago
"They're enemy combatants and terrorists who are being detained for acts of war against our country. That is why different rules apply."

Oh yeah, that's real bright. How is that on 22 Feb 2003, the Geneva Convention applied to "enemy combatants who commit acts of war against a country" and now it no longer applies to that class of person. A client like that can't be "bright" and "legalese unaware" at the same time.

At the time the arguments you refer to were being made by the Administration's lawyers, Rummy was consistently referring to the prisoners as "unlawful combatants." The US Appeals Court ruled that it had no jurisdiction because the prisoners were aliens and their place of imprisonment was not in US territory. "Unlawful combatants" was irrelevant. Since those arguments were made, Rummy has changed the term he uses and now "enemy combatant" is the flavour of the month.

I don't believe that this is a simple case of Rummy being unaware of the legalese. You can bet that many very clever lawyers checked his wording before he shifted to the new definition. Not only that, but it seems that the military is now consistently using this term.

"Enemy combatants at Guantanamo include not only rank-and-file Jihadists who took up arms against the United States, but also senior al Qaeda operatives and leaders, and Taliban leaders," Paul Butler, a Pentagon official involved in Guantanamo policy, said without providing names, nationalities or any specific evidence.

[SimeyTheLimey]

Originally posted by Troll:
The US Appeals Court ruled that it had no jurisdiction because the prisoners were aliens and their place of imprisonment was not in US territory. "Unlawful combatants" was irrelevant. Since those arguments were made, Rummy has changed the term he uses and now "enemy combatant" is the flavour of the month.

Which court of appeals? There are at least two involved, and they have reached contrary opinions. The Supreme Court is hearing (at least) one of the cases.

Unlawful combatant is legally a subset of the enemy combatant group. An enemy combatant is just someone fighting for the other side. An unlawful combatant is one fighting for the other side not in accordance with the laws of war. You can be an enemy combatant and not an unlawful combatant. And I suppose you could be an unlawful combatant and not be an enemy combatant. That is, you could be an unlawful combatant, but not be an enemy from the point of view of the United States.

In any case, do you have any proof that any of these fine lines have altered the government's legal case as presented in court?. Or are you just jumping to conclusions based on press conferences and press reports?

[Troll]

Originally posted by SimeyTheLimey:
In any case, do you have any proof that any of these fine lines have altered the government's legal case as presented in court?. Or are you just jumping to conclusions based on press conferences and press reports?

I frankly don't see why we should pay any attention to the courts at all. The courts have said that this is essentially a political affair by saying they had no jurisdiction. Which would make Rummy's public statements far more important than what some paper pusher says in a deposition. The trials are just part of a bigger political game. They are not significant in themselves. The important thing here is that the Bush Administration PURPOSEFULLY sent these people to Guantanamo to avoid application of the law. It is spending time, money and effort to show that its actions are beyond legal review; that it is above the law. The whole purpose of what the Administration is doing is to exclude the jurisdiction of the courts. No matter what the courts say, the Administration is manoeuvering to short circuit them. There's little point in listening to the Administration's argument because their arguments are not honest, they are not looking for guidance from the court - they're just looking to tell the court to f*ck off!

And why Simey? What do you achieve if you manage to prove that you are above the law; that no one can question your actions; that no rules apply to these people? If you don't respond to anything else in this thread, I wish you would explain to me what you think they are achieving by holding them for the rest of their lives without them ever knowing what they were accused of? The delay is not reasonable. They haven't been getting their ducks in a row. They've been making these people disappear - that's all. Is it not far simpler to treat them in accordance with the Geneva Conventions and with simple principles of justice? I mean, there is no fine line here. There is no such thing in international law as an unlawful combatant. The way you are supposed to be behave is all in the Geneva Conventions in black and white. It would have been so simple just to follow the law. No need to puff out your chest, invent blackholes that don't exist and show justice the finger. I would probably have complained about a military court, particularly one run by the US, but at least that would have given these guys some kind of rights.

I just don't see what Bush has achieved except to show America and the World that he considers himself to be above the law and beyond reproach. Perhaps this is just a case of power corrupting. Maybe presiding over 500 state sponsored assassinations as Governor of Texas gives you a bit of a head rush. Maybe after that it's very difficult to respect life.

[SimeyTheLimey]

Originally posted by Troll:
I frankly don't see why we should pay any attention to the courts at all. The courts have said that this is essentially a political affair by saying they had no jurisdiction. Which would make Rummy's public statements far more important than what some paper pusher says in a deposition. The trials are just part of a bigger political game. They are not significant in themselves. The important thing here is that the Bush Administration PURPOSEFULLY sent these people to Guantanamo to avoid application of the law. It is spending time, money and effort to show that its actions are beyond legal review; that it is above the law. The whole purpose of what the Administration is doing is to exclude the jurisdiction of the courts. No matter what the courts say, the Administration is manoeuvering to short circuit them. There's little point in listening to the Administration's argument because their arguments are not honest, they are not looking for guidance from the court - they're just looking to tell the court to f*ck off!

And why Simey? What do you achieve if you manage to prove that you are above the law; that no one can question your actions; that no rules apply to these people? If you don't respond to anything else in this thread, I wish you would explain to me what you think they are achieving by holding them for the rest of their lives without them ever knowing what they were accused of? The delay is not reasonable. They haven't been getting their ducks in a row. They've been making these people disappear - that's all. Is it not far simpler to treat them in accordance with the Geneva Conventions and with simple principles of justice? I mean, there is no fine line here. There is no such thing in international law as an unlawful combatant. The way you are supposed to be behave is all in the Geneva Conventions in black and white. It would have been so simple just to follow the law. No need to puff out your chest, invent blackholes that don't exist and show justice the finger. I would probably have complained about a military court, particularly one run by the US, but at least that would have given these guys some kind of rights.

I just don't see what Bush has achieved except to show America and the World that he considers himself to be above the law and beyond reproach. Perhaps this is just a case of power corrupting. Maybe presiding over 500 state sponsored assassinations as Governor of Texas gives you a bit of a head rush. Maybe after that it's very difficult to respect life.

Bzzt! You are ducking the questions. I asked you above to back up your assertions, not make more of them. Above you said that my explanation of the government's legal argument was wrong because the government had changed it as a result of circuit court decisions. All you offered as "proof" were newspaper quotes of Rumsfeld in a press conference where he used the broader term "enemy combatant" instread of the narrower one "unlawful combatant."

So once again, what is your basis for saying the government has changed its legal justification? And which of the 14 circuits was it you were talking about?

[Troll]

Originally posted by SimeyTheLimey:
Above you said that my explanation of the government's legal argument was wrong ...

So once again, what is your basis for saying the government has changed its legal justification?

I never said your explanation of the government's legal argument was wrong!!! I said "Simey is just assuming that he knows what capacity they are being held in." That is clearly what you are doing. You are assuming that they are being held for the reason you say defence lawyers put forward in habeas corpus cases. What I specifically said in response to your demand that I review the legal cases is that they are irrelevant since the reasons for which these people are being held are political not legal. The Administration didn't go to court to ask for permission to hold these people did it? It would be absurd to go to the court to find the reasons for why these people are being held. As absurd as saying that "the reason x killed y is the one that his lawyers gave at his murder trial."

Rumsfeld was part of the group of people that decided to detain these people in this way so it IS relevant why he thinks they are being held. Rumsfeld is also the person that is authorised under the Detention Order that the Administration relies on to hold these people. I think what he has to say is very important.

I don't think it's worth getting into the legal argument because it is irrelevant, but the case I was referring to was obviously the District of Columbia case (Rasul et al v GW Bush et al) - afaik that's the only habeas corpus case for Guantanamo detainees where the court ruled on the jurisdictional question. I am aware of Coalition of Clergy v. Bush and Al Odah v. United States and some of the other cases in case you think I'm a heathen . Note how in the Rasul judgment the court said that "The "enemy" status of aliens captured and detained during war is a quintessential political question on which the courts respect the actions of the political branches."

I think someone probably told Rumsfeld that restricting yourself to an argument that they are "unlawful combatants" is bad news because if the court goes with international law that says there is no such thing as an unlawful combatant, you're stuffed. That's why I think he's changed his tune now and is being more general. But that's just my theory. My question to you (and I'm happy for it to remain unanswered) was what are they achieving by holding these guys for the rest of their lives without them ever knowing what they are accused of.

[SimeyTheLimey]

Oh, heck, Troll. All you are showing is that you don't understand US Constitutional law. When a court (the Judicial branch) says that something is a "political question" it is the courts way of deferring to the political branches (the Legislature, or here, the Executive). That's not the court commenting that this was a decision made by politicians, they are saying that this is an issue which, constitutionally, ought to be decided by one or both of the elected branches, not the Judiciary. In other words, it's the court dealing with the justiciability question, which in these kinds of cases immediately follows the narrower question of jurisdiction.

So of course the Executive didn't ask the courts for permission. That would be contrary to the US Constitution. Courts in the US are not permitted by Article III to give advisory opinions. But that doesn't mean that the Executive doesn't for itself construe its own Constitutional authority. Of course it does. And sometimes, their construction is challenged in court. It's just that when it is, the courts have to weigh their own Constitutional competance to hear the case under separation of powers.

However, in those cases, the issues have still been fully briefed. The way I have analyzed the issue tracks closely the justifications the government has relied upon. It also tracks the explanation given to me and a class I was in by one of the legal advisors at the Pentagon. So I'm not the one assuming what the "real" reasons were. You are.

[Troll]

Originally posted by SimeyTheLimey:
they are saying that this is an issue which, constitutionally, ought to be decided by one or both of the elected branches, not the Judiciary.

Which is precisely what I said your pompousness .

Rumsfeld is the one who is authorised to detain people in the "WOT." Rumsfeld is the one who decides who to pick up and, because of the strategy adopted by the Bushies to put themselves beyond the law, Rumsfeld is the one who decides why, how, and how long they are held for.

I think it is entirely logical to ask him why they're being held, but if you prefer to ask paper pushing civil servant lawyers for the reason, be my guest. The one you say you'll get is still wrong, because there is no such thing as an unlawful combatant in international law and even if there were, anarchy (a situation where no law applies) is inherently repulsive to the law.

[SimeyTheLimey]

Originally posted by Troll:
because there is no such thing as an unlawful combatant in international law

You keep asserting that, but just asserting something over and over doesn't make it true. Practicioners in the field of public international law I have talked to, and specifically ones who work with the laws of war on a daily basis disagree with you. So does the US Supreme Court. I'm going with them. Sorry.

[Troll]

Originally posted by SimeyTheLimey:
Practicioners in the field of public international law and specifically ones who work with the laws of war on a daily basis disagree with you.

No they don't! Some may. But the majority say that all combatants are protected by the Geneva Conventions and any monkey that can read can tell you that the Geneva Conventions specifically say that ALL parties captured in an international conflict including ALL types of combatants are covered by its provisions. The Geneva Conventions make no reference to "unlawful combatants." There are only three categories of detainee in an international conflict: civilians, medical personnel, and prisoners of war. Anyone who says otherwise is plain wrong!

The International Red Cross has more experience in this field than anyone else. They are the ones who are charged with responsibility for implementing the Geneva Conventions. What do they say?

"You have two phrases which were used [by Rumsfeld] -- 'battlefield detainees' and 'unlawful combatants'," said Michael Kleiner, ICRC spokesperson for Afghanistan. "

'Battlefield detainee,' for example, is a term that does not exist in legal books. There is no such thing in international humanitarian law as a 'battlefield detainee'," Mr. Kleiner said. "Everyone captured in this context should be presumed a PoW," he said. "This is according to the law," Mr. Kleiner added.

"Anybody captured with a gun who is supposed to be a combatant is supposed to be considered, at least presumed, a PoW until the court decides otherwise," Mr. Kleiner said.

I still can't understand how as a jurist you can even contemplate defending an argument that says that a government can avoid application of any law whatsoever with the effect of detaining people indefinitely without trial. But we've done the ethics tango already. Moving on.

So does the US Supreme Court. I'm going with them. Sorry. [/B]

We are talking about international law not US law. The USSC doesn't make international law.

What you are saying is that in US law there is such a thing as an unlawful combatant. That is something entirely different from claiming that it exists in international law. You obviously rely on the Haupt case (Ex Parte Quinn). You realise that the Haupt case was decided in 1942; 7 years before the Geneva Conventions were even signed; 35 years before the US ratified the Geneva Conventions. A LOT of water has passed under the fridge since then. Have there been cases since 1977 affirming the Haupt principle of an unlawful combatant? Perhaps you can point me to some cases. Not that it's relevant to a discussion about international law but it might be interesting nonetheless to consider.

I don't think the Administration has a clue what these people really are or what they might have done or even what they are achieving by treating them this way. Their policy on GB just makes no sense. I mean here you even have Bush calling them "non-combatants." All they seem to be trying to do is draw the detention out. Bush and Rummy are just priming us. As in, if the court says they aren't unlawful combatants, then we will rename them enemy combatants or illegal non-combatants and drag this out another 5 or 10 years!!

[SimeyTheLimey]

We've been through this so many time. Unlawful combatant status is implicit in the Geneva Convention III, which lists the conditions to be accorded POW status as a lawful combatant. If you don't meet the standards to be a lawful combatant, yet are a combatant (which is just a description of behavior -- one who fights is a combatant), then you are an unlawful combatant. This goes back not to the Geneva Conventions, but to the Hague Conventions of 1899 and 1907.

Notice in your quote above about the "battlefield detainees" that your ICRC person says only that there should be a presumption of POW status until there can be a hearing to determine status. Even he does not say that all terrorists are lawful combatants. If you have a hearing, the hearing must be deciding something. What it decides is whether the combatant fits within the conditions set forward to be granted POW status. Your definition would grant combatants who violate the laws of war the status of civilians, which would mean they could not be detained at all. That's an absurd result. The purpose of humanitarian law is to reward behaving according to the laws of war, not reward flouting them.

In any case, you are simply wrong about this and your dogged insistance otherwise is becoming tiresome. Here is a link explaining it. Oh golly, it's the same argument I just gave.


P.S. I'll clarify a couple of other things as well. Humanitarian law is self-policing by each high contracting power. That means (contrary to what you said), the US Supreme Court is the court that ultimately determines whether the US is complying.

Secondly, the SCT precedents relied upon are all good precedents. They were decided on the current treaties. There is no relevant "water under the bridge" since those cases were decided. You mention 1977. Do you even realize that the US is not a party to the 1977 protocols? Don't quote those here, they don't help your case.

[Troll]

Originally posted by SimeyTheLimey:
We've been through this so many time. Unlawful combatant status is implicit in the Geneva Convention III, which lists the conditions to be accorded POW status as a lawful combatant.

Can we clarify something here. Are you saying that "unlawful combatants" are not entitled to the full protection of the Third Geneva Convention (which is what the Dept. of Defense's Counsel is saying in your article) or are you saying that "unlawful combatants have no rights under the Geneva Conventions" and can be held indefinitely without trial which is what Rumsfeld has said. Because I agree with the first rather limited statement that Haynes makes, but not the second.

In any case, you are simply wrong about this

I've been simply wrong about things before like National Security Teams - only to become simply right about them later.

[SimeyTheLimey]

Originally posted by Troll:
Can we clarify something here. Are you saying that "unlawful combatants" are not entitled to the full protection of the Third Geneva Convention (which is what the Dept. of Defense's Counsel is saying in your article) or are you saying that "unlawful combatants" have no rights under the Geneva Conventions and can be held indefinitely without trial. Because I agree with the first rather limited statement that Haynes makes, but not the second.
I've been simply wrong about things before like National Security Teams - only to become simply right about them later. [/B]

Unlawful combatants are not entitled to POW status under the Third Geneva Convention and can be tried for the things that they did that were contrary to international humanitarian law. Those would be the same things that denied them POW status like, for example, not fighting according to the laws of war, not carrying arms openly, not wearing a distinctive mark, and so on. Not all of those things would rise to the level of war crimes, imho. But the possibility is there.

All combatants in a war are liable to detention for the duration of hostilities. Status as a lawful combatant or otherwise wouldn't alter that.

[Troll]

Originally posted by SimeyTheLimey:
Unlawful combatants are not entitled to POW status under the Third Geneva Convention and can be tried for the things that they did that were contrary to international humanitarian law. Those would be the same things that denied them POW status like, for example, not fighting according to the laws of war, not carrying arms openly, not wearing a distinctive mark, and so on. Not all of those things would rise to the level of war crimes, imho. But the possibility is there.

All combatants in a war are liable to detention for the duration of hostilities. Status as a lawful combatant or otherwise wouldn't alter that.

Well I'm glad to hear that because I agree with all of that. I'm happy for your to refer to "unlawful combatants" as a descriptive term to mean combatants that are not entitled to POW status because they are not covered by Art. 5 of the Third Geneva Convention. That is not the way the Bush Administration has been using the term.

Defining it in this way though has the necessary consequence of implying that no one in Guantanamo Bay is an "unlawful combatant." This is so because the Third Geneva Convention specifically says that all combatants are deemed to be POW's until such time as a competent court has determined that they are something else. You can only become an "unlawful combatant" when a competent court says you are one. Indeed, the only way these guys could be tried for crimes under the Third GC is if they WERE treated as POW's (Part III, Chapter 3).

What all of this means is that you have to agree that the Bush Administration is not complying with the Geneva Conventions (including the 3rd one) by neither charging these people with crimes nor affording them POW status. The best case scenario for them is an argument that the war is ongoing. In that case, only when it has held trials could anyone be referred to as an "unlawful combatant" since only then would they not be entitled to POW status. They are specifically not being classed as POW's either and are not being afforded all of the rights of POW's under the Third GC. Ergo, however you look at it, the US is not complying with International law.

[SimeyTheLimey]

Originally posted by Troll:
Well I'm glad to hear that because I agree with all of that. I'm happy for your to refer to "unlawful combatants" as a descriptive term to mean combatants that are not entitled to POW status because they are not covered by Art. 5 of the Third Geneva Convention. That is not the way the Bush Administration has been using the term.

Defining it in this way though has the necessary consequence of implying that no one in Guantanamo Bay is an "unlawful combatant." This is so because the Third Geneva Convention specifically says that all combatants are deemed to be POW's until such time as a competent court has determined that they are something else. You can only become an "unlawful combatant" when a competent court says you are one. Indeed, the only way these guys could be tried for crimes under the Third GC is if they WERE treated as POW's (Part III, Chapter 3). So, these guys would only become "unlawful combatants" when a court found that they were not entitled to the privileged status of a POW.

What all of this means is that you have to agree that the Bush Administration is not complying with the Geneva Conventions (including the 3rd one) by neither charging these people with crimes nor affording them POW status. The best case scenario for them is an argument that the war is ongoing. In that case, only when it has held trials could anyone be referred to as an "unlawful combatant" since only then would they not be entitled to POW status. They are specifically not being classed as POW's either and are not being afforded all of the rights of POW's under the Third GC. Ergo, however you look at it, the US is not complying with International law.

Whoah! I think you are confusing process with substance. What you are saying is like saying that nobody commits murder unless and until a court says they have committed murder. That's a logical fallacy. Murder is an act. Conviction for murder is just an adjudication of the fact of the act.

Here, these people are factually unlawful combatants regardless of whether a hearing has been held. You can't seriously tell me that al-Queda fight in uniform or meet the other standards required to qualify as POWs. At most they haven't yet gone through the formality of a status hearing. However, nowhere does it require that this hearing be held before a court, let alone a civilian one -- an administrative hearing is enough. In the mean time, they are to be presumptively treated as POWs. The statements I gave you above said that this is exactly what has been done. They are being treated as POWs until a status hearing determines their status.

However, POW's regardless of whether they are adjudged POWs or just presumed POWs still can be held until the close of hostilities. I don't see what you are gaining from this argument because the core of your complaint -- the fact they are being held -- is unchanged by their status. They are either lawful combatants given privileged status including immunity for lawful acts of war. Or (more likely) they are unlawful combatants not privileged by international law and subject to trials for war crimes. Either way, they can be held.

[Troll]

Originally posted by SimeyTheLimey:
Here, these people are unlawful combatants regardless of whether a hearing has been held.

How can that be? You just said that an "unlawful combatant" is someone who is not entitled to POW status under the Third Geneva Convention. Right?

Now, who is not entitled to POW status under the Third Geneva Convention? The answer is in Article 5. It says that if there is any doubt as to whether someone is of a category enumerated in Article 4, they enjoy full protection of the Convention until such time as their status has been determined by a competent tribunal. I have read the French and the English texts to check this and it says that if it is alleged that someone is NOT in any of the Article 4 categories, then you need a competent tribunal to intervene. The only way you can avoid a tribunal is if there is no dispute that the person IS in one of the categories. So, the law clearly says that the only way you can be an "unlawful combatant" in the way you define it, is if a court has determined that you do not fit into any of the Article 4 categories.

That is entirely consistent with your murder analogy. The legal system deems you to be innocent of murder until a competent court finds you guilty just as the Third GC deems you to be a POW until a competent court finds you to be a criminal.

Applying the law to the facts, the Americans have clearly expressed their doubt that the people they captured fall into the categories enumerated in Article 4. A doubt having arisen, a competent court has to determine their status. Until it does, they have to hold them as POW's. The Third GC does not say you have to treat them substantially in a way similar to POW's. Its says you have to accord them POW status which means registering them with ICRC, not interrogating them, giving them tobacco and canteens etc. etc. - stuff that is NOT happening in Guantanamo.

The core of my complaint is not that they are being held. It is that they are being held ILLEGALLY! My complaint is that the US is breaking the law, that is maltreating people, that it is denying people their basic human rights. Besides, the fallacy that the war is not over is just that ... or at the very least there should be argument as to whether it is over or not given the nature of this "war."

[eklipse]

Originally posted by SimeyTheLimey:
Bzzt! You are ducking the questions...

....he say's before proceeding to quack like a prime drake.


Shall we try again? - they were good questions after all:

Originally posted by Troll:

...

And why Simey? What do you achieve if you manage to prove that you are above the law; that no one can question your actions; that no rules apply to these people? If you don't respond to anything else in this thread, I wish you would explain to me what you think they are achieving by holding them for the rest of their lives without them ever knowing what they were accused of? The delay is not reasonable. They haven't been getting their ducks in a row. They've been making these people disappear - that's all. Is it not far simpler to treat them in accordance with the Geneva Conventions and with simple principles of justice?

...

Only two pages in and this thread is already full of enough legalese to drown a small child. :yawn: