Nice work, Mr Bush

[Yeager]

Yes Bazil, but what does it all mean?
==========================
"Without question, the President can detain enemy combatants, including those who are U.S. citizens, during wartime. See Ex parte Quirin, 317 U.S. 1, 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy. Presidents have detained enemy combatants in every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of prisoners of war in the United States (some of whom were U.S. citizens) without trial or counsel. Then, as now, the purpose of detention was not to punish, but to protect.

"Article II of the Constitution is the primary basis for the President's authority to detain enemy combatants. Article II vests the 'executive Power' in the President and provides that he 'shall be Commander in Chief of the Army and Navy of the United States.' U.S. Const. art. II, § 1, cl. 1; id., § 2, cl. 1. These provisions invest 'the President alone . . . with the entire charge of hostile operations' during wartime. Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). The determination that an individual should be detained as an enemy combatant has traditionally been one of the President's most fundamental military judgments.

"While Article II is a sufficient basis for the President's authority to detain enemy combatants, in the current conflict the President also enjoys the support of Congress. In its Joint Resolution of September 18, 2001, Congress authorized 'the President . . . to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.' Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added); see also 10 U.S.C.§ 956. Congress thus specifically authorized the President not only to use deadly force, but also any lesser force needed to capture and detain enemy combatants to prevent them from engaging in continued hostilities against the United States. The President's constitutional power is at its apex when he enjoys such support from Congress, especially in the field of foreign affairs. See Dames & Moore v. Regan, 453 U.S. 654, 674 (1981); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-37 & n. 2 (1952) (Jackson, J., concurring).

[MJHerman]

Originally posted by Toad
That's true.

At the end of a "traditional war", after the shooting was over, after the needs of interrogation had been met and the Germans had signed and unconditional surrender, these folks "got their day in court."



Took a while, it seems.

Indeed it did.  But during the interim period between capture and trial the services of the JAG divisions of the various Allied nations were made available to them....perhaps not immediately in May, 1945 but shortly thereafter.

I'm not sure what you mean by "traditonal war".  For the most part the crimes they were being tried for were crimes against civilians, POWs, etc....they were not on trial for those actions undertaken by them within the "rules of war".

The Nuremberg Trials went a long way to educating what had been a population living under a dictatorship to the principles and benefits of democracy and a fair and just judicial system, and is one of the best examples of leading by example rather than preaching from the barrel of a rifle.  That's been my only point all along.

[MJHerman]

Originally posted by Yeager
Yes Bazil, but what does it all mean?
==========================
"Without question, the President can detain enemy combatants, including those who are U.S. citizens, during wartime. See Ex parte Quirin, 317 U.S. 1, 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy. Presidents have detained enemy combatants in every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of prisoners of war in the United States (some of whom were U.S. citizens) without trial or counsel. Then, as now, the purpose of detention was not to punish, but to protect.

"Article II of the Constitution is the primary basis for the President's authority to detain enemy combatants. Article II vests the 'executive Power' in the President and provides that he 'shall be Commander in Chief of the Army and Navy of the United States.' U.S. Const. art. II, § 1, cl. 1; id., § 2, cl. 1. These provisions invest 'the President alone . . . with the entire charge of hostile operations' during wartime. Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). The determination that an individual should be detained as an enemy combatant has traditionally been one of the President's most fundamental military judgments.

"While Article II is a sufficient basis for the President's authority to detain enemy combatants, in the current conflict the President also enjoys the support of Congress. In its Joint Resolution of September 18, 2001, Congress authorized 'the President . . . to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.' Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added); see also 10 U.S.C.§ 956. Congress thus specifically authorized the President not only to use deadly force, but also any lesser force needed to capture and detain enemy combatants to prevent them from engaging in continued hostilities against the United States. The President's constitutional power is at its apex when he enjoys such support from Congress, especially in the field of foreign affairs. See Dames & Moore v. Regan, 453 U.S. 654, 674 (1981); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-37 & n. 2 (1952) (Jackson, J., concurring).

I don't mean to quibble Yeager, but have you actually read all of the cases that are cited?  Could you provide the source of the summary that you posted?  The reason I ask is that a person (such as the author of the summary) can often pull relevant provisions out of judicial decisions out of their context without providing the reader with the judge's actual decision on the matter and/or providing the facts.

For example, I thought that in the Hamdi case the judges said charge him or let him go (or was that the other "dirty bomb" guy?).

[Yeager]

I was looking for an official DoD perspective and the search found this link.  It rambles on so I tried to find the really salient points but did not see the date of the article.  Its rather old
====

http://www.defenselink.mil/news/Oct2002/b10022002_bt497-02.html

[Rude]

Originally posted by lord dolf vader
lovely how you explain away locking men in dogcages without even a summary military trial. and children imprisoned without same.

how ever you justify it no trial at all is just ****ed up.

You're so outraged at such injustices...well...except those like 9-11, or suicide bombings of women and children or mass murder.

Yup....just a real justice hunter....it's all Bush's fault. Must be great to not only have a simple mind, but a simple life to boot!

Carry on my wayward son.

[MJHerman]

Originally posted by Yeager
I was looking for an official DoD perspective and the search found this link.  It rambles on so I tried to find the really salient points but did not see the date of the article.  Its rather old
====

http://www.defenselink.mil/news/Oct2002/b10022002_bt497-02.html

Thanks for the link.  It is a good example of how one properly responds to concerns/criticism of the issue rather than the typical (at least on this BBS):

"Remember the WTC"
"You're a liberal"
"You're a terrorist"
Etc.

I haven't read the various background material cited in the statement, but do bear in mind that the writer is General Counsel to DoD.  His job depends on towing the party line, and it is unlikely that he would even want a job with DoD if he didn't believe in what he is saying.

That's not to say that his opinion is somehow incorrect - It just means that for every case argued to support his position there may be cases that don't.

And much like our opinions here, the report is only an opinion - It is not a statement of what the law is on this issue.

Still, a good read, and I recommend it to anyone who wants to see the "enemy combatant" argument rationally enunciated.

[Toad]

MJHerman:

By "traditional war" I mean a declared war pitting nation state against nation state. This thing going on now may be called "the war on terror" but I can't see it as the "usual" war. It's undeclared and it features the COTW against a shadowy terrorist organization that may or may not be allied with/ supported by other governments.

And during the "traditional war", POW's were simply incarcerated and interrogated. No JAG, no trials; just held until the war was over.

These prisoners in Gitmo haven't even been given POW status, have they? Aren't they still "unlawful combatants", a category not covered by the Geneva convention and certainly assured of fewer rights than POWS?

Again, I'm not saying this is right or wrong. I'm just saying it is NOT the usual situation. They're not "criminal justice" cases yet. They may be at some future date. They're not even POW's being held until the "war" is over.

They're "unlawful combatants" entitled to ...... what rights?

I sure don't know.

[Toad]

Supreme Court will hear first appeals involving Guantanamo detainees

[crabofix]

Originally posted by Toad
MJHerman:

By "traditional war" I mean a declared war pitting nation state against nation state. This thing going on now may be called "the war on terror" but I can't see it as the "usual" war. It's undeclared and it features the COTW against a shadowy terrorist organization that may or may not be allied with/ supported by other governments.

And during the "traditional war", POW's were simply incarcerated and interrogated. No JAG, no trials; just held until the war was over.

These prisoners in Gitmo haven't even been given POW status, have they? Aren't they still "unlawful combatants", a category not covered by the Geneva convention and certainly assured of fewer rights than POWS?

Again, I'm not saying this is right or wrong. I'm just saying it is NOT the usual situation. They're not "criminal justice" cases yet. They may be at some future date. They're not even POW's being held until the "war" is over.

They're "unlawful combatants" entitled to ...... what rights?

I sure don't know.

unlawful combatants only in the eyes of BUSH, who knows that the case would not hold in a legal court.

According to international law, they are still POW, you guys can call them whatever you want to protect your butts.
Bush will not be able to leave US after his term is finished, for the same reason Kissinger gave up his travels around the world.

[ravells]

I think it bears mentioning that when the Geneva Convention relative to the treatment of Prisoners of War was drafted in 1949, people thought about warfare and the nature of its combatants along much more traditional lines and regulated for their treatment accordingly.

We probably need a new legal regime to deal with people who fall within this quasi-military category.

Ravs

[Holden McGroin]

Article 4 {of the Geneva Convention as it pertains to POW's}

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

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

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

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

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

(c) That of carrying arms openly;

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

Al Queda is an independent multinational organization that does not form part of the armed forces of a Party of conflict, as it does not belong to territory.  It is unlike the army of any nation, and therefore would not fall under the definition of paragraph 1.

Al Queda does not have a fixed distinctive sign recognizable at a distance, ie. no uniforms, and does not conduct operations in accordance with the laws and customs of war, ie.  they fly civilian planes into civilian targets for the expressed purpose of killing civilians.  Therefore the organization does not qualify under the definition of paragraph 2.

By this interpretation of Int'l law they do not qualify as POW's until the Hague says something different. I do not see how they could, as the judges would have to ignore the wording of the very treaty they reference.

[ravells]

Exactly the problem, Holden.

These people are not prisoners of war, so do not attract the protection of the Convention. So why are they being held by military authorities rather than civil authorities?

The reality is that nation states will deal with issues practically, in the manner they think best when the odds are high. Inconvenient laws are ignored for the sake of expediency, which on occasion is no bad thing - particularly today where changes are happening so quickly the law finds it hard to keep up with them.

Ravs

[Holden McGroin]

The armed forces caught them so it makes some sense that they are the convening authority.

I would think that if Pershing were to have captured Pancho Villa, military courts and prisons would have been the rule in that case as well.

[ravells]

If it's a matter to which the civil courts have jurisdiction, then the Armed forces should hand the detainees over to a civil authority. All the military have done (in civil terms) is effected an arrest.

Of course we all know that this situation is not so clearly defined - which makes for criticism whatever action the military take in dealing with the detainees.

It may well be that the administration do not want civil trials (in criminal courts) for these people for fear that they will be acquited owing to the heavy burden of proof the prosecution will need to make out together with the equally heavy burden of procedural compliance.

The nearest recent example I can think of which compares to this is the trial of the bombers of the Pan Am flight 103 which was blown up over Lockerbie in Scotland.  In that case, the accused were tried under Scottish Criminal law.

Ravs.

[Holden McGroin]

Criminal courts, civilian courts, this would probably be a decision for the government presiding.  But... that is what is happening...