so long habeus corpus.

[lukster]

Originally posted by Stoney74
It's the language in the bill that defines who the law applies to.  Notice the definition of "alien" that is also included in the text of the law.  The definition of unlawful enemy combatant is contained in the Geneva Conventions, although I'd have to look that up.

Without reading the context I'm guessing that they are distinguishing between a lawful combatant and an unlwaful combatant. The unlwaful combatant may challenge his status in the courts while the lawful combatant may not.

[Chairboy]

Originally posted by lukster
Did we charge the many thousands of German and Japanese soldiers taken prisoner on the battlefield during WWII? Do you have a problem with that?

They were prisoners of war, covered under the Geneva conventions.  That is apparently not the case here.

So I ask again, why haven't these people been charged?

[Stoney74]

Originally posted by Chairboy
D'ya all really feel comfortable with the fact that these people haven't been charged with anything?  Why is this?

Let's pretend that we did try them in a U.S. court of law.  What would the charge be?  We picked most of these guys up in Afghanistan, so I'm not sure we would have legal jurisdiction anyway.

So, lets assume that we DID have jurisdiction (I'm fairy dusting here--stay with me) and we did charge them with...say, murder or attempted murder.  None of the governments evidence would be admissible, due to the laws governing evidence.  Furthermore, did the U.S. military Mirandize them when they were captured?  My point is that their is a host of legal issues under current U.S. law that would prevent the prosecution of these guys in a U.S. court.  

So, lets try them under the Geneva Conventions.  First of all, their combative status does not, and I repeat, does not afford them ANY protection under the GC.  As they are not uniformed combatants that carried their arms openly, etc., etc.  The closest GC definition of their status would be for spies, which can be summarily executed under the GC.

So, what do we do with them?  We don't have to charge them with anything.  The U.S. has identified them as hostile and dangerous, a definition with which I'm sure they themselves would certainly agree.

The irony in all of this is that if we had taken no prisoners, (and I'm not talking about intentionally shooting them) as a result of them all being KIA, the world would have nothing to argue.  Who out there is defending Zarqawi's rights?  No one.  

That there are unprecendented legal issues created by this situation, I will agree whole-heartedly.  That these individuals should be granted the same legal protections of a U.S. citizen, I could not disagree more.

Links to the entire text of the bill are posted earlier in this thread.  Read the language in its entirety, and then ask some of these questions...

Cheers,

[lukster]

Well said Stoney.

[Stoney74]

Definition from the Geneva Conventions regarding the definition of those protected by the GC:

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, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

The key qualifiers under part 2.B and part 6 in the preceding paragraph is "they carry arms openly and respect the laws and customs of war."

[Bluefish]

These "people" haven't been charged because in the case of Hamdan v. Rumsfeld, decided by the USSCT last June, the Supremes knocked the whole military commission arrangement previously set up to try them into a cocked hat.  If they HAD been charged and tried under the old arrangement, then Hamdan had come down, they'd all have to be tried again.  The latest legislation is a response to that USSCT decision.  The WSJ article cited by BJ229r above summarizes the situation pretty accurately.

Great posts, btw, Stoney!

[Viking]

Originally posted by Stoney74
The definition of unlawful enemy combatant is contained in the Geneva Conventions, although I'd have to look that up.

I'm afraid it is not. The GC doesn't even contain the word "combatant" at all let alone "unlawful enemy combatant". Like "assault weapon" the term "unlawful enemy combatant" is invented by your government and has no precedence in law, US or international.

[Viking]

Originally posted by Stoney74
So, lets try them under the Geneva Conventions.  First of all, their combative status does not, and I repeat, does not afford them ANY protection under the GC.  As they are not uniformed combatants that carried their arms openly, etc., etc.  The closest GC definition of their status would be for spies, which can be summarily executed under the GC.

No I don't agree. They would have to be treated as civilians. However civilians that commit murder can be executed as well. The GC is not specific with regard to the prosecution and punishment of criminals.

Originally posted by Stoney74
The irony in all of this is that if we had taken no prisoners, (and I'm not talking about intentionally shooting them) as a result of them all being KIA, the world would have nothing to argue.  Who out there is defending Zarqawi's rights?  No one

Under the GC you do not have the right to refuse a surrender by the enemy, but you do have the right to execute them if a competent tribunal determines them to have been operating outside the GC and they have committed murder.

So I guess the final point is that you do have the right to execute most of the terrorists/insurgents/favorite term of the enemy/etc. However you do not have the right to torture them under any circumstances.

[Viking]

Originally posted by Stoney74
Definition from the Geneva Conventions regarding the definition of those protected by the GC:

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, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

The key qualifiers under part 2.B and part 6 in the preceding paragraph is "they carry arms openly and respect the laws and customs of war."

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

That part may include many "combatants" in both Iraq and Afghanistan since most of Iraq and Afghanistan is not actually occupied by US forces. In fact all but the largest metropolitan areas of both countries are largely lawless no-man's land.

Most of them also carry their AK's openly, but whether they respect the laws and customs of war is less clear. Most of them probably don't know the GC. Nevertheless unless the enemy clearly violates the GC they are to be treated as if they respect the laws and customs of war.

And just so we are clear: Mines, IED, booby-traps, ambushes and snipers are perfectly legal means of conducting warfare.

Also the GC states that the enemy must have a "fixed distinctive sign recognizable at a distance" to be considered "uniformed". Mind you a colored arm-band is enough to satisfy the GC. And let's take a look at some Iraqi insurgentswhatever:









They clearly carry their arms openly, and I would consider the headscarf distinctive and recognizable at a distance.

[Bluefish]

"Whether they respect the laws and customs of war is less clear."  You've got to be squealing kidding me- they still mutilate the dead fer chrissake!  Remember this?

U.S. Civilians Mutilated in Iraq Attackhttp://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A40722-2004Mar31¬Found=true

Viking, with all due respect, you are a moron

[Viking]

Originally posted by Bluefish
"Whether they respect the laws and customs of war is less clear."  You've got to be squealing kidding me- they still mutilate the dead fer chrissake!  Remember this?

Yes, mutilating the dead is a violation of the laws of war. However you would have to prove in each case the person in question (facing the tribunal) actually took part or assisted in the mutilations.

Just like the Abu Ghraib incident doesn't make your whole army war criminals, nor does that incident make every Iraqi insurgentwhatever a war criminal.

Originally posted by Bluefish
Viking, with all due respect, you are a moron

I guess respect is a word foreign to you then.

[Yeager]

I believe it is possible to respect a moron, viking

But you are not a moron.  I believe funkED would spell it moran

j/k

[Yeager]

viking, you seem intelligent with opinions. let me ask you this question:

If you were in charge of teh militry what would you do in Iraq today?  what would be the likely consequences of your decision?

[Viking]

Originally posted by Yeager
I believe it is possible to respect a moron, viking

Perhaps, but calling someone a moron (or moran ) is not respectful, and really does not belong in a discussion. (Where's MP3 when you need him?!)

[Viking]

Originally posted by Yeager
viking, you seem intelligent with opinions. let me ask you this question:

If you were in charge of teh militry what would you do in Iraq today?  what would be the likely consequences of your decision?

That would depend on what your goals are. If the goal is to "democratize" Iraq, then the war was a lost cause before it even began IMHO.

If the goal is to get rid of Saddam and his alleged WMD - mission accomplished, go home. Chaos would ensue in Iraq, but that will happen anyway at this stage.

If the goal is to make Iraq a base in your "war on terror", then you need to lose the silk gloves and start taking names. Curfew, public executions, the whole nine yards. That's the only thing those people understand because that's the only thing they have ever known. The consequences would of course be unsustainable political outcry in west. But you would get your base.

Basically you're screwed.