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Military.com Forums Hot Topics & Current Events Point-Counterpoint Under the Geneva Conventions, don’t unlawful belligerents have rights inferior to|
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It's OK to be a little paranoid. Someone somewhere is out to get you. |
Under the Geneva Conventions, don't unlawful belligerents have rights inferior
to those of lawful prisoners of war? If so, given the Supreme Court's decision in Boumediene v. Bush (BvB), how can it justify refusing to extend the writ of habeas corpus to prisoners of war (POWs)? Until today, neither (POWs) nor unlawful belligerents (UBs) have been recognized as having the same constitutional rights as "U.S. persons." SCOTUS seems to have changed that. So, should we bring Gitmo and other prisoners held abroad to the United States and store them in U.S. prisons? Even if we didn't make them honorary U.S. citizens and give them the right to vote, we'd have to count them in the next census and give them congressional representation, wouldn't we? If you think that's absurd, you might want to check it out. The Census Bureau's job is to count everyone in the United States. That count is used to determine congressional apportionment. There might be a law that makes my proposition wrong, but I have no intention of looking for it. If there were such a law, there's a good chance it might be ruled to be unconstitutional. That's left as an exercise for some reader more argumentative and industrious than I am. Did anyone catch my implication that the Gitmo prisoners would still be on ice in 2010? And, yes, I'm pretty sure there aren't enough Gitmo-type prisoners to affect congressional apportionment, not even if they were all moved to the same state.
Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE's dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today's opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires. I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today. . . . Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent. [Emphasis added.] If constitutional protections have extraterritorial reach, why don't United States laws? That is, why shouldn't we be able to indict citizens of other countries for breaking our criminal laws even though they're in another country and have never been to the United States -- or even run into a "U.S. person"? Is this a power grab by SCOTUS? -- moving to claim that the U.S. Constitution and U.S. Code provide for universal jurisdiction -- and, consequently, that SCOTUS has universal jurisprudence? Only Lamont Cranston knows. No, PeteCDR, the writ of habeas corpus doesn't get suspended on a case-by-case basis for individuals. And, of course, it can be suspended only by the Legislative Branch, not by the Executive Branch or the Judicial Branch. . . . Until last week, the law had been that there were some places in the world where American courts had no jurisdiction. For example, U.S. courts had no jurisdiction over non-citizens who have never set foot in the United States. But now, even aliens get special constitutional privileges merely for being caught on a battlefield. . . . [In] Hamdan v. Rumsfeld, the court disallowed the Bush administration's combatant status review tribunals, but wrote: "Nothing prevents the president from returning to Congress to seek the authority (for trial by military commission) he believes necessary." So Bush returned to Congress and sought authority for the military commissions he deemed necessary . . . and Congress passed the Military Commissions Act. . . . It turns out the justices "were just kidding." . . . [P]rocedures written by the legislative branch and signed into law by the executive branch have failed Kennedy's test. He says the law violates "separation of powers," which is true only if "separation of powers" means Justice Kennedy always gets final say. Of course, before there is a "separation of powers" issue, there must be "power" to separate. . . . [T]there is no general principle of separation of powers. There are a number of particular constitutional provisions that when added up are referred to, for short, as "separation of powers." But the general comes from the particular, not the other way around. And the judiciary simply has no power over enemy combatants in wartime. Such power is committed to the executive as part of the commander in chief's power, and thus implicitly denied to the judiciary, just as is the power to declare war is unilaterally committed to Congress. . . . Kennedy's ruling thus effectively overturned the congressional declaration of war -- the use of force resolution. . . . Approximately 10,000 prisoners were taken on the battlefield in Afghanistan. Of those, only about 800 ended up in Guantanamo, where their cases have been reviewed by military tribunals and hundreds have been released. The detainees are not held because they are guilty; they're held to prevent them from returning to the battlefield against the U.S. Since being released, at least 30 Guantanamo detainees have returned to the battlefield. . . . [Liberals say] that enemy combatants should have access to the same U.S. courts that recently acquitted R. Kelly of statutory rape despite the existence of a videotape. Good plan, liberals. The New York Times article on the decision in Boumediene notes that some people "have asserted that those held at Guantanamo have fewer rights than people accused of crimes under American civilian and military law." In the universal language of children: Duh. . . . You're repeating yourself, and in doing so repeating your mistakes. Grachus: The Geneva Conventions say that in such a dispute, a neutral tribunal sits and determines their POW status. Error highlighted. Surely you're going want to edit the sentence quoted below so it makes better sense? If your understanding of what a writ of habeas corpus is used for and what it does is no better than your statement suggests, the least of your worries is that someone will try to make a fool of you. Don't worry about me trying to do it the way you worried about PeteCDR. I won't bother. All right, not that much . If you can't keep up with someone who can't tell the difference between a writ of habeas corpus and the right to habeas corpus without griping, though, you're in trouble. Grachus: Suspending the writ simply means that an accusation is not only a conviction, but no trail need take place, that the very system of Justice that guarrant[ees] our freedom is removed. The purpose of a habeas corpus hearing (for a prisoner so entitled under the circumstances) is to determine whether her imprisonment is lawful or not. Guilt or innocence is determined by trial, not by habeas corpus. I figure you know that to be the case, Grachus, but what you have written hardly shows it. If it takes more time to say something clearly, take more time. This is certainly not directly applicable to Gitmo, but the Uniform Criminal Extradition Act (UCEA) makes interstate extradition mandatory if it is found "that the fugitive is properly charged with a crime and was present in the demanding state at the time the alleged crime was committed." Should the bar in a habeas corpus hearing have to be any higher than that? For the record, the pledge I made shortly after I signed on at military.com was that I would try to remain civil, not that I could or would remain civil. Believe me: I'm trying, I'm trying. But the hyperbole of the sentence I quoted makes it difficult to follow. My first impression of you (not from the topic of the day, of course), was that you were a bright enough fellow. Just goes to show that first impressions can be wrong. Sure, you got a couple of things right in your first post, but you've tended to get pretty shaky since then. I realize that my being snarky or supersillious lessens my chances of persuading anyone to change her mind. However, given that I have yet to see anyone on this forum succeed in getting anyone to change her mind, I'm willing to take the risk. Besides, I find that I get considerable satisfaction looking down my nose at posters I disagree with. A common enough failing on forums, no doubt. Geneva Convention IV | Additional Protocol I | Additional Protocol II There's a lot to read, but there's also a lot of boilerplate. That makes it easy to read each more than once to avoid missing anything. To keep you further occupied, read Lieutenant Colonel Joseph P. "Dutch" Bialke's Spring 2004 Air Force Law Review article: "Al-Qaeda & Taliban unlawful combatant detainees, unlawful belligerency, and the international laws of armed conflict [(LOAC)]." Long title, long article. The footnotes are especially important for grasping what's at stake if we grant UBs more rights and treat them better than POWs. Bialke doesn't get everything right, but reading the article is almost an education in itself. The key point Bialke was wrong on had to do with Gitmo detainees' rights to Article 5 hearings under Geneva Convention III (GCIII). Bialke was wrong on that only because of the convoluted reasoning (that word again) Justice Stevens used in the subsequent Hamdan v. Rumsfeld decision -- that the Tricky that, given that we're not that likely to be involved in any more declared wars between nation states, only armed conflicts -- and most of them won't be with a governmental entity. Regardless of any saber rattling, no country really wants to get into a war with the United States. If you do manage to read GCIII, be sure to take note that POWs are supposed to be tried in military courts and not in civilian courts as so many seem to be calling for for the UBs. If there's a law that says UBs captured in foreign counties can be tried in civilian courts instead of military courts, I haven't found it.
A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105. There may also be some bizarre wording in the majority decision in BvB that says UBs should be treated differently in that regard. If so, it'll be very difficult to get me to accept that line of thinking. I'd tend to see it as yet another case of UBs getting better treatment and being given rights superior to those of POWs -- i.e., of those who followed the LOAC, generally the Hague and Geneva Conventions. Admittedly, I still haven't managed to read BvB and the majority may very well have determined, among other things, that the military trubunals that assigned the UB status to the Gitmo prisoners were not "competent" tribunals. Don't be misled by any feigned ignorance or uncertainty on my part, Grachus. I can assure you that I have not only read all of the Geneva Conventions, but also that I understand them. That's more than can be said for anyone else posting to the current "Gitmo decision" threads. . . . Oh, by the way, my rhetorical questions really aren't questions. Please don't answer them, all right? Was your putting "neutral body" in quotation marks intended to imply that those words appear that way in GCIII, or were you unsure what punctuation to use? What GCIII calls for is a "regularly constituted court" (Article 3) or a "competent tribunal (Article 5)," not a "neutral body," not a "neutral tribunal," and not an "independent tribunal." The term "judicial court" is used in the "Additonal Protocol II" to the 1949 Geneva Conventions and went into effect December 7, 1979. However, the United States is not party to that particular treaty and is, therefore, not bound by it -- given that it lacks status as "customary international law," although there's at least some merit for making that claim for Common Article 3. To summarize, none of the terms term "independent tribunal," "neutral body" or "neutral tribunal" is in any of the Geneva Conventions or the Additonal Protocols. Additional Protocol II is replete with sections that would be problematic for the United States' conduct of the Afghanistan War and its aftermath. Hardly surprising, since the Geneva Conventions themselves are an outgrowth of efforts of the International Committee or the Red Cross (ICRC), which has as one of its main objectives "to limit the means and methods of warfare." It's hardly surprising that the ICRC would make the claim that Common Article 3 is customary international law, for if that were so, it would have been unnecessary for Justice Stevens to go through the gyrations he did in Hamdan v. Rumsfeld. The United States is obliged to follow customary international laws regardless of whether or not they are in signed and ratified treaties. Now, it's not entirely unreasonable to make the claim that the terms of Article 84 regarding "independence and impartiality" are what is meant by a "competent tribunal." Nonetheless, those who drafted GCIII had every opportunity to call for "independent and impartial" or "neutral" tribunals in Article 5 and didn't do so. They called for a "competent tribunal." I'm convinced that that was a deliberate choice, that they had definite reasons for using the words they did. Perhaps because they thought for them to have done otherwise could lay the basis for claims that the determination of POW status had to fall to a civil court of a "neutral or non-belligerent Powers." Did that become the law in BvB? I'm drawing the inference from what you (or or was it thorin001?) wrote (in this thread and in liberal90's related thread) that you think it's fine for a POW to be held for the duration without (war criminal?) charges, but that that can't be done with a UB. If it's writ anywhere in the law that a UB must be charged with a crime or released, I'm unaware of it. Is that your thinking? -- that a UB's status would have to be "upgraded" to POW for her to remain imprisoned without charges? Upgrade her status to POW and then be able either to hold her for the duration without charges or to possibly charge her with a (war?)crime at some point? Alternatively, let her status remain UB: You either charge her with a crime or release her -- keeping her imprisoned for the duration without charges not being an option? If so, that sort of thinking is unfathomable to me. To insist on that because UBs are "civilians, not in the military" is not reasonable. Their lower UB status should trump their status as civilians. (Bear in mind, unless BvB ruled otherwise, the Gitmo prisoners have been ruled to be UBs by a military tribunal.) If the established international LOAC don't allow for UBs to be held without charging them the same as can be done with higher-up-the-food-chain POWs, then the Geneva Conventions need to be changed. The general idea is to keep enemies, whether POWs or UBs, in prison so they can't return to the battlefield. All in accordance with LOAC.
Over the centuries, an entire body of laws of war was designed to delegitimize and suppress unlawful combatants. Thus, captured al Qaeda and Taliban operatives are not due the rights and privileges of lawful POWs under the Geneva Conventions. They are entitled to humane treatment but can be detained in less comfortable conditions than POWs, and can be interrogated more vigorously -- so as to obtain military and intelligence information. They may be held, without a criminal trial, for the duration of the conflict. . . . These days, this is far from an academic dispute. Because some of our allies felt that U.S. treatment of captured unlawful combatants violated the Geneva Conventions, they indicated that they would not turn al Qaeda and Taliban prisoners, captured in Afghanistan, over to U.S. forces there. Obviously, coalition warfare loses much of its appeal if the participants disagree on the applicable rules. These practical problems aside -- because, in the 21st century, unlawful combatants relentlessly seek access to weapons of mass destruction, and pose a life-and-death threat to democracies -- the need to delegitimize them is particularly compelling. Thus, not according them a full set of POW privileges does not reflect a compassion deficit on our part. Rather, it is an important symbolic act which underscores their status as the enemies of humanity. The failure by many of our allies and international humanitarian groups to appreciate this is particularly ironic. Blurring the distinction between lawful and UBs, which lies at the very core of modern laws of war, is likely to erode this entire hard-won set of normative principles, disadvantaging both the interests of law-abiding states, and making warfare even more destructive and barbarous. To win the war on terror, the Bush administration must aggressively oppose the continuing efforts -- both at home and abroad -- to privilege unlawful combatants under the banner of humanitarianism. This issue is too important to be left to the lawyers, and merits the attention of top U.S. policy makers. Anything less would threaten our ability to defend ourselves and embolden the Khalid Sheikh Mohammeds of the world. [Emphasis added.]
Today, we find ourselves facing new questions and issues of first impression. The war on terror is a new type of war not envisioned when the Geneva Conventions were negotiated and signed. A careful reading of the POWs Conventions clearly leads one to the conclusion that its provisions do not apply to terrorists who are engaged in an activity that is fundamentally at odds with the Conventions. We are pleased to see that the European Parliament "agrees that the prisoners currently held in the U.S. base in Guantanamo do not fall precisely within the definitions of the Geneva Convention." This conference asks the important question of whether terrorists have rights. They do -- to be treated humanely. However, they do not deserve nor should they be given heightened status or benefits that are reserved for lawful belligerents. We should not seek to legitimize their conduct or organization by conferring upon them unearned status. Bestowing Prisoner of War status on detainees who do not meet the clear requirements of the law would undermine the rule of law by diminishing norms found in the plain language of the Geneva Convention itself. It would confer the status and privileges of a law-abiding soldier on those who purposefully target women and children. Unlawful combatants by their nature forfeit special benefits and privileges accorded by the Geneva Convention on the Treatment of Prisoners of War. If captured, they are apprehended for their criminal activity and not as prisoners of war as envisioned by the Geneva Convention. . . . [A] careful analysis through the lens of the Geneva Convention leads us to the conclusion that the Taliban detainees do not meet the legal criteria under Article 4 of the convention which would have entitled them to POW status. They are not under a responsible command. They do not conduct their operations in accordance with the laws and customs of war. They do not have a fixed distinctive sign recognizable from a distance. And they do not carry their arms openly. Their conduct and history of attacking civilian populations, disregarding human life and conventional norms, and promoting barbaric philosophies represents firm proof of their denied status. But regardless of their inhumanity, they too have the right to be treated humanely. As we speak, the United States is holding 300 detainees from approximately 31 different countries at the United States Naval Base in Guantanamo Bay, Cuba. Last week, I personally visited and viewed the facilities at Guantanamo Bay. I can report to you that the detainees are being treated very well, and they have in fact been extended some of the rights of the Geneva Conventions. [color:red][Emphasis added.] Having read no more of the opinions than the opening paragraph and the last two paragraphs of Scalia's dissent, I'm going to bet that the majority opinion hinges on whether or not Guantanamo Bay is US soil. (Justice Kennedy must have given that away in the oral arguments.) Otherwise, my little charade about the Supreme Court's grab for power and attempting to extend U.S. laws to universal jurisdiction and jurisprudence would have merit I didn't seriously intend. I started this thread because I knew I would want to vent my outrage at the decision. Until I've done some reading, I won't post any more specifically about BvB. What I may do in the meantime is re-post some of what I wrote after Hamdan v. Rumsfeld was decided. Much of that should be applicable to the current decision. This message has been edited. Last edited by: machiavellean, |
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Eagles may soar, but weasels don't get sucked into jet engine intakes. |
Here is the slip decision. All 134 pages of it.
http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf |
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Member |
And what of the U.S. citizen held in GITMO that is deprived of his rights ??
I forget his name- but I've never heard of his release. <edit>found it- Jose Padilla Basically held for 5 years, tried in Miami, and sentanced to 17 years in a fed supermax prison. This message has been edited. Last edited by: MaddogK, |
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Experienced Member |
Prisoners of war are neither criminals or being charged with a crime. Since they are not being charged with a crime, then the question is moot. By definition, anyone who was a member of the Taliban is a "lawful combattant." If the member of Al Qaeda who was seized fulfilled the requirements of the Geneva Conventions for Non State resistance, then they too are lawful combatants. Whether they fulfilled the requirements or not, that decision is to be left to a "Neutral body." Finally, even if someone is a POW, they can STILL be charged with a war crime, and be forced to appear before a legal judidical body, either a Military Courts Martial, or a Civil Court. But a POW cannot be charged with a war crime and be forced to go before a Kangaroo Court. Dave |
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Highly Experienced Member |
The thing to remember is that there is a process in the Geneva Conventions that must be followed to determine the status (illegal combatant, POW, etc.) of a prisoner and this admin has refused to implement that process even after losing several court cases. According to the Constitution ratified treaties are US law. |
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Member |
The fact is that if the military commissions actually had started trials instead of the long delay, and if the Chief Prosecutor hadn't resigned over what he said political pressure, and if several military defense and prosecution attorneys hadn't said the whole thing is a sham, the Supreme Court probably would have ruled the other way.
I think that under the Hague and Geneva conventions, treaties which are part of US law, you have to have some kind of review process - you can't just lock people up forever without trial or hearing. |
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Set This World Ablaze |
No Geneva Protections for terrorists!!
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Eagles may soar, but weasels don't get sucked into jet engine intakes. |
Ok, so it is agreed that the Constitution promulgates that H.C. is not to be suspended unless in "cases of rebellion or invasion the public safety may require it." So when Padilla was detained and it was determined that he is a U.S. citizen, could it not be made a case that he engaged in a rebellion against the United States by the definition of rebellion? Seems to me that if that were the case, H.C. could be denied him. |
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Eagles may soar, but weasels don't get sucked into jet engine intakes. |
Chief Justice Roberts also pointed out that Stephens and Kennedy both acknowledged that the cert. should have been denied. "The Court’s opinion makes plain that certiorari to review these cases should never have been granted. As two Members of today’s majority once recognized, “traditionalrules governing our decision of constitutional questions and our practice of requiring the exhaustion of available remedies . . . make it appropriate to deny these petitions.” Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1) (citation omitted) (statement of STEVENS and KENNEDY, JJ., respecting denial of certiorari)." Seems that the whole issue is shaky at best. I don't see that there was a victory. No Habeas petitions were granted with this. It only states that the courts can entertain them, they don't have to grant them. |
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Experienced Member |
Yes, yes, everyone who commits treason is in "rebellion," and automatically loses the writ. And of course if Jose could make use of the writ, that would endanger the public safety. What a novel idea. Accuse someone of treason, suspend their rights, and then lock em up without a trial, or a Kangaroo trial. Might as well get rid of the Bill of Rights as well. Without the protection of the writ, none of them mean a damn thing. Dave |
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Eagles may soar, but weasels don't get sucked into jet engine intakes. |
So under your theory, there is no such thing as treason? The framers just put it in for the helluvit? Seems to me that they made that proviso for a reason. But then, that is just me.
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On Warning 10 days 22Aug2008 S_S |
Ex parte Milligan establishes that the Constitution does not permit civilians to be tried in military courts except when the civilian courts are forced closed by rebellion or invasion and that military tribunals can only try civilians in that circumstance. Basically what I'm saying is that a 1-person rebellion isn't sufficient to justify a suspension of habeas corpus. This message has been edited. Last edited by: liberal90, |
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