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Author Topic: With the Stroke of a Pen...  (Read 4026 times)

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Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #25 on: January 24, 2009, 02:06:33 PM »
Apologies, that wasn't clear.

Zakharra, I'm referring to this post. I was also asking CassandraNova to clarify her point; yours are understandable.

The 'war on terror' ... thing... is not an officially declared war unless I missed a press release somewhere (god, I hope not) so, much like with Vietnam (and possibly Korea; I don't recall if the Korean war was actually declared or not but I think it was), we find ourselves having to try and find a code of conduct for people captured under conflict, people who are considered enemies, but people for whom there is no official protection or designation save for under humanitarian laws.

Does that clear it up a little?

 Oops. misunderstod you then. My apoligies.  :)

 The Korean 'War' was a police action, not a war persay. This current war is, as some argue, not legally a war, but it can be argued strongly that it is legally a war. There is no set way in the Consitution for war to be delared, except by Congress authorizing it. Which they essentually did with two (2) authorizations.

 Technically, Korean is still a hot action, the fighting is just stopped under a cease-fire that can be terminated by either side for any reason at any time.

Offline Valerian

Re: With the Stroke of a Pen...
« Reply #26 on: January 24, 2009, 02:17:41 PM »
No. It's only ratified some parts, not all. That much I do know. Also the Geneva convention only applies to uniformed enemy fighters. The terrorists fall into a gray area. As far as the US is concerned, it is 1; war and the terrorists are 2; prisoners of war, that do not fall under the regulations of the Geneva Convention.

The US did not ratify the two added protocols of 1977, if that's what you mean.  Those protocols deal with the protection of victims in international conflicts -- that is, civilians.  So if you take the position that the detainees in places like Gitmo are in fact prisoners of war, those protocols don't come into play.

Really, though, it's as Trieste said -- most terrorists don't quite fit that definition anyway, so technically, the GC as a whole doesn't matter in this context, even aside from the question of whether war has legally been declared.  If the conventions were to be updated at this point in time, however, I suspect the definition of a POW might become noticeably different.

Online Zeitgeist

Re: With the Stroke of a Pen...
« Reply #27 on: January 24, 2009, 02:23:22 PM »
You are justifying immoral and unlawful conduct by rationalizing that it's not as bad as the immoral and unlawful conduct of other nations.  This is a sublimely stupid rationalization for two reasons: it reasons that as long as we act in a manner that is less grievous than other nations, we're doing okay; it allows and actualizes immoral and unlawful behavior.


I'm only saying, when people wring their hands, worry and eschew over the reputation of America abroad, they seem to conviently forget that there are far, far worse things going on around the world than overfeeding terrorists in Gitmo.

To justify stealing because murder is worse, yes, that would be 'sublimely stupid'. But then I'm not here to play name calling games.

Oh and unsubscribe.
« Last Edit: January 24, 2009, 02:45:10 PM by Zamdrist »

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #28 on: January 24, 2009, 02:42:44 PM »
The US did not ratify the two added protocols of 1977, if that's what you mean.  Those protocols deal with the protection of victims in international conflicts -- that is, civilians.  So if you take the position that the detainees in places like Gitmo are in fact prisoners of war, those protocols don't come into play.

Really, though, it's as Trieste said -- most terrorists don't quite fit that definition anyway, so technically, the GC as a whole doesn't matter in this context, even aside from the question of whether war has legally been declared.  If the conventions were to be updated at this point in time, however, I suspect the definition of a POW might become noticeably different.

 *nods*  That's true  Unfortunately most of the world is arguing that the detainees in Gitmo do fall under the Geneva Convention and that because they -do- apply, they should be given the same rights as a uniformed soldier.

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #29 on: January 24, 2009, 10:54:32 PM »
Quote
*nods*  That's true  Unfortunately most of the world is arguing that the detainees in Gitmo do fall under the Geneva Convention and that because they -do- apply, they should be given the same rights as a uniformed soldier.

Regularly, detainees are not considered to fall under the Geneva Conventions.  Any enemy combatant caught in civilian clothing can be summarily executed.  Period.  (LET ME EDIT THIS TO CLARIFY:  What I mean to say here is, that an individual who is caught fighting without any military identification can be summarily executed;  the individual does fall under the Geneva Conventions, but the Prisoner of War rules clearly indicate that the "jailer" can choose to execute the individual.  A prisoner of war is naturally assumed to be a prisoner of war, but is entitled to a war tribunal to change his classification.  To deny a prisoner of combat a war tribunal breaches the third Geneva Convention.  (FURTHER MODIFICATION):  "Military identification" is not quite right, I think.  Perhaps "identification of opposition" or "identification with the opposition" is a bit more correct.

However.

U.S. law dictates that any individual who commits a war crime can be imprisoned for life, and if death results to the victim, "shall also be subject to the penalty of death."  War crimes can be defined as:

"(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians."

Common types of violations include: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, sexual assault or abuse and taking hostages.

Torture is specifically defined as an act "intended to inflict severe physical OR MENTAL PAIN OR SUFFERING" for the purposes of "obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind."

There seems to be a degree of severity when it comes to war crimes and the degrees are from lesser to greater: the plan of action, the threat of action, and the action.

The law dictates that ANY INDIVIDUAL IN THE CUSTODY of the United States or the signatories of the Geneva Convention apply; the law does not in any way classify a difference between an enemy combatant, an enemy detainee, a prisoner of war, or other.  The law is not narrow, and as such, cannot be disputed.

Quote
I'm only saying, when people wring their hands, worry and eschew over the reputation of America abroad, they seem to conviently forget that there are far, far worse things going on around the world than overfeeding terrorists in Gitmo.

To justify stealing because murder is worse, yes, that would be 'sublimely stupid'. But then I'm not here to play name calling games.

Oh and unsubscribe.

1.  Eschew does not mean what you think it means.
2.  You are rationalizing again (albeit differently).  Any crime is worthy of justice.  That a crime should be committed by the fiercest proponent of justice and then ignored by the world community seems initially ridiculous.  The fact that the United States is feeding prisoners, and they ARE considered only prisoners of war by American Law/Geneva Convention--not terrorists-- does not in any way rationalize away the fact that some of these men have been sexually abused and tortured.  If a murderer pays the family of his victim a million dollars, he should still be charged with murder.

Quote
Really, though, it's as Trieste said -- most terrorists don't quite fit that definition anyway, so technically, the GC as a whole doesn't matter in this context, even aside from the question of whether war has legally been declared.  If the conventions were to be updated at this point in time, however, I suspect the definition of a POW might become noticeably different.

You are wrong.

Terrorists must be PROVEN to be terrorists, otherwise they are considered merely enemy combatants and/or prisoners.  An enemy caught fighting American soldiers in Iraq CANNOT be considered a terrorist unless he is caught, or is proven to be partly responsible for, the attack or destruction of an American CIVILIAN interests abroad (companies, embassies, etc).  But an individual's affiliation cannot demark him automatically as a terrorist.

Let me give you an example:

The Ku Klux Klan.  If I am a member of the Ku Klux Klan, and a fellow klansmen kills an ethnic minority, I cannot be charged for conspiring to kill that ethnic minority simply because I share the same affiliation.  However, if I conspired to kill that particular ethnic minority, or I conspire to kill anyone for that matter, I can be charged in a criminal court for it.

Another note:

Quote
Confinement is illegal (POWs can't be held in prison cells unless it is for their own protection), but internment is allowed -- they may be kept within certain boundaries. However, their location must be as far from the fighting as possible. Besides being held in a special "camp," prisoners of war are supposed to be granted all of the rights and privileges that their captor grants to its own armed forces, at least in terms of food, water, shelter, clothing, exercise, correspondence, religious practice and other basic human needs. They are supposed to be informed of their exact location -- supplied with their mailing address, in fact -- so that their relatives may send them letters and packages.


« Last Edit: January 24, 2009, 11:13:29 PM by PhantomPistoleer »

Offline Trieste

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Re: With the Stroke of a Pen...
« Reply #30 on: January 24, 2009, 11:12:19 PM »
Terrorists must be PROVEN to be terrorists, otherwise they are considered merely enemy combatants and/or prisoners.  An enemy caught fighting American soldiers in Iraq CANNOT be considered a terrorist unless he is caught, or is proven to be partly responsible for, the attack or destruction of an American CIVILIAN interests abroad (companies, embassies, etc).  But an individual's affiliation cannot demark him automatically as a terrorist.

I think one of the sticking points has been what constitutes proof. Can it be circumstantial? How solid does it have to be? Whose accounts and testimonies are trustworthy? Who judges this? Is it the US unless someone calls for an oversight to look into it? Who has the authority to call in oversight? Who picks the oversight? Does it change depending on country?

All of these are valid questions that don't seem to have been worked out yet, not to the satisfaction of most people involved.

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #31 on: January 24, 2009, 11:22:57 PM »
Quote
I think one of the sticking points has been what constitutes proof. Can it be circumstantial? How solid does it have to be? Whose accounts and testimonies are trustworthy? Who judges this? Is it the US unless someone calls for an oversight to look into it? Who has the authority to call in oversight? Who picks the oversight? Does it change depending on country?

All of these are valid questions that don't seem to have been worked out yet, not to the satisfaction of most people involved.

All military tribunals are treated on a case-by-case basis.  Guilt must be proven beyond a shadow of a doubt.  Proof should be solid--meaning a defending attorney should not be able to find a way to have it tossed out.  Who judges it?  Naturally, an American military tribunal judge.  As a prisoner of war, the prisoner is under the legal jurisdiction of the United States of America.  No one can call for an oversight on the US on how it handles its military tribunals, unless if the United States DENIES the due process of those military tribunals.  This makes your next question moot.  And, it makes your next question moot as well.

Unless the articles of the Geneva Convention are somehow amended, a third party is not legally entitled to overseeing the tribunals of prisoners of war because, it quite clearly states, a prisoner of war must follow the rules and regulations of the capturing country.

EDIT:  I should clarify my point.  I said that "the prisoner is under the legal jurisdiction of the United States of America," but in reality, it is "under the legal jurisdiction of the capturing country, in this case, the United States of America."  :l
« Last Edit: January 25, 2009, 12:56:29 AM by PhantomPistoleer »

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #32 on: January 25, 2009, 12:56:19 AM »
All military tribunals are treated on a case-by-case basis.  Guilt must be proven beyond a shadow of a doubt.  Proof should be solid--meaning a defending attorney should not be able to find a way to have it tossed out.  Who judges it?  Naturally, an American military tribunal judge.  As a prisoner of war, the prisoner is under the legal jurisdiction of the United States of America.  No one can call for an oversight on the US on how it handles its military tribunals, unless if the United States DENIES the due process of those military tribunals.  This makes your next question moot.  And, it makes your next question moot as well.

Unless the articles of the Geneva Convention are somehow amended, a third party is not legally entitled to overseeing the tribunals of prisoners of war because, it quite clearly states, a prisoner of war must follow the rules and regulations of the capturing country.



  In a civilian court, not in a military one. Also because they are taken by the military, they are not subject or needed to go through the civilian judicial system.  The problem is, the rest of the world is saying that the Geneva Convention does cover the detainees. ie, that they be treated as uniformed soldiers.   

 
Quote
Torture is specifically defined as an act "intended to inflict severe physical OR MENTAL PAIN OR SUFFERING" for the purposes of "obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind."

 My problem with that is the part in bold.  What constitutes mental pain or suffering? What you and I would consider  mental pain or suffering is different than what they would consider mental pain or suffering. That one condition is extremely vague and can cover anything. Personally, unless the person is physically tortured, most anything I'd allow.  A lot of interrogation is making sure that you break the enemy mentally. Which means you wear them down in ways that any good liberal lawyer can call torture.
 

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #33 on: January 25, 2009, 01:29:52 AM »
Quote
  In a civilian court, not in a military one. Also because they are taken by the military, they are not subject or needed to go through the civilian judicial system.  The problem is, the rest of the world is saying that the Geneva Convention does cover the detainees. ie, that they be treated as uniformed soldiers.

Wait a minute, you've misunderstood my position.  The way it works in the military is this: an enemy combatant is captured and he is automatically perceived as a prisoner of war.  This is automatic.  They don't have to be uniformed soldiers to be prisoners of war; the laws dictate that they can be executed for not being uniformed (more specifically, to be in civilian clothes), but that does not actually remove their designation.  I should add that there are a number of cases where an individual that is NOT uniformed can still be identified as an enemy combatant.

All prisoners of war are entitled to a military tribunal to CHANGE their designation.  My point was to stress that a prisoner of war cannot be charged as being a terrorist without the process of law.

Quote
My problem with that is the part in bold.  What constitutes mental pain or suffering? What you and I would consider  mental pain or suffering is different than what they would consider mental pain or suffering. That one condition is extremely vague and can cover anything. Personally, unless the person is physically tortured, most anything I'd allow.  A lot of interrogation is making sure that you break the enemy mentally. Which means you wear them down in ways that any good liberal lawyer can call torture.

No, that condition is not vague.  It's broad.  Mental pain or suffering is covered in detail in American Law.  The Geneva Convention treats mental pain or suffering as being any situation in which an individual's dignity is not preserved.

You said that, "A lot of interrogation is making sure that you break the enemy mentally.  Which means you wear them down in ways that any good liberal lawyer can call torture."

This statement is misguided and I take a bit of offense to it.  If a psychopath kills a woman in cold blood and I am appointed to defend him, I must perform my job and defend him.  Simply because I defend a psychopath doesn't mean that I must be a psychopath.  A lawyer appointed to defend a client must do the best he can, despite his political inclinations.

Furthermore, interrogation is not about breaking anyone mentally.  In fact, breaking someone mentally typically gives you false information.

Offline Valerian

Re: With the Stroke of a Pen...
« Reply #34 on: January 25, 2009, 02:26:29 AM »
U.S. law dictates that any individual who commits a war crime can be imprisoned for life, and if death results to the victim, "shall also be subject to the penalty of death."
This allows for imprisonment and execution of such war criminals, not torture, which is what we're discussing here.

The law dictates that ANY INDIVIDUAL IN THE CUSTODY of the United States or the signatories of the Geneva Convention apply; the law does not in any way classify a difference between an enemy combatant, an enemy detainee, a prisoner of war, or other.  The law is not narrow, and as such, cannot be disputed.
There apparently is a legal difference between a detainee and a POW.  The issue of when to grant a detainee POW status (which dramatically alters their rights under international law) has been debated by the president, the armed forces, the Red Cross, everybody.  (And laws can always be disputed, but that's another discussion entirely.)

You are wrong.

Terrorists must be PROVEN to be terrorists, otherwise they are considered merely enemy combatants and/or prisoners.  An enemy caught fighting American soldiers in Iraq CANNOT be considered a terrorist unless he is caught, or is proven to be partly responsible for, the attack or destruction of an American CIVILIAN interests abroad (companies, embassies, etc).  But an individual's affiliation cannot demark him automatically as a terrorist.
I'm... not quite sure where you're calling me wrong.  My original statement:
Really, though, it's as Trieste said -- most terrorists don't quite fit that definition anyway, so technically, the GC as a whole doesn't matter in this context, even aside from the question of whether war has legally been declared.
I used the term terrorists very deliberately, to refer to people who are being held with some justification rather than simply having been caught up in a sweep -- that is, people who already do fit most definitions of a terrorist through their own actions.  Not proven in a court of law, perhaps, since by definition that doesn't happen in places like Gitmo, but those who can be reasonably believed to have been engaged in terrorist activities.

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #35 on: January 25, 2009, 09:03:21 AM »
Quote
This allows for imprisonment and execution of such war criminals, not torture, which is what we're discussing here.

Em, I was treating the American armed forces as being the perpetrator of war crimes, not Afghan and Iraqui enemy combatants.  However, I'm not aware that these enemy participants can be held accountable for war crimes; I'm not sure if Afghanistan or Iraq are signatories of the Geneva Convention, and I'm not sure whether or not a set of people who are not represented by their government also fall in.  This is in no way a defense against their actions: the spirit of the law must be upheld as well.  However, the Geneva Convention clearly states that an individual must be formally charged and prosecuted for committing war crimes.

Quote
There apparently is a legal difference between a detainee and a POW.  The issue of when to grant a detainee POW status (which dramatically alters their rights under international law) has been debated by the president, the armed forces, the Red Cross, everybody.  (And laws can always be disputed, but that's another discussion entirely.)

There are two designations for detainees:  prisoners of war or spies.  There is no third option for 'detainee.'  While the subject is a hotly debated one, the laws are explicit and specific.  Conventions dictate that an individual is automatically granted POW status once captured by an enemy.

Quote
I used the term terrorists very deliberately, to refer to people who are being held with some justification rather than simply having been caught up in a sweep -- that is, people who already do fit most definitions of a terrorist through their own actions.  Not proven in a court of law, perhaps, since by definition that doesn't happen in places like Gitmo, but those who can be reasonably believed to have been engaged in terrorist activities.

Listen, the act of detaining an individual without giving him recourse for a trial is ILLEGAL internationally and in the United States of America.  It breaches our own constitution.  Look at this sentence:  "people who already do fit most definitions of a terrorist through their own actions."  Now, replace some words with equally offending ones:  "people who already do fit most definitions of a mass murderer through their own actions," "people who already do fit most definitions of a repeat-offender child rapist through their own actions," etc.  These people would face trial. 

I don't know what you mean by saying that by definition, a court of law doesn't happen in places like Gitmo.  Guantanamo is a U.S. military base, and like the armed forces, is subject to American law.  When you say "military law," you make it sound like there's another system of law.  Military Law is ADDITIONAL to American Law, since American Law doesn't cover observation of rank, mutiny and sedition, contempt against officials, etc.  However, I should add that the Uniform Code of Military Justice makes unlawful detention illegal unless the detainer believes that the detainee has probable cause to create harm.

Offline Valerian

Re: With the Stroke of a Pen...
« Reply #36 on: January 25, 2009, 09:23:20 AM »
There are two designations for detainees:  prisoners of war or spies.  There is no third option for 'detainee.'  While the subject is a hotly debated one, the laws are explicit and specific.  Conventions dictate that an individual is automatically granted POW status once captured by an enemy.
From Wikipedia: The word [detainee] came into common usage during and after the War in Afghanistan (2001–present), as the U.S. government's term of choice to describe members of the Taliban and al-Qaeda captured in that war, which has generated considerable debate around the globe.  The U.S. government classifies captured enemy combatants as "detainees" because there is no consensus about whether the combatants are "prisoners of war" under the definition found in the Geneva Convention. The controversy arises because the Geneva Convention protects "prisoners of war" but says nothing about "detainees."

Listen, the act of detaining an individual without giving him recourse for a trial is ILLEGAL internationally and in the United States of America.  It breaches our own constitution.  Look at this sentence:  "people who already do fit most definitions of a terrorist through their own actions."  Now, replace some words with equally offending ones:  "people who already do fit most definitions of a mass murderer through their own actions," "people who already do fit most definitions of a repeat-offender child rapist through their own actions," etc.  These people would face trial.

I know it's illegal.  That's why I'm glad that Gitmo is being shut down.  It IS offensive, and I don't like what's happening there.  Whatever process is used to deal with the detainees, it has to be more transparent.

I don't know what you mean by saying that by definition, a court of law doesn't happen in places like Gitmo.  Guantanamo is a U.S. military base, and like the armed forces, is subject to American law.  When you say "military law," you make it sound like there's another system of law.  Military Law is ADDITIONAL to American Law, since American Law doesn't cover observation of rank, mutiny and sedition, contempt against officials, etc.  However, I should add that the Uniform Code of Military Justice makes unlawful detention illegal unless the detainer believes that the detainee has probable cause to create harm.
I don't believe I've yet used the phrase 'military law' myself.  Frankly, I don't know enough about the differences between military and US law.  All I was trying to say is that none of these detainee camps are exactly noted for giving speedy and fair trials... but I may have been a little too sarcastic about it at two-thirty in the morning.  I should really never stay up that late.

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #37 on: January 25, 2009, 09:36:58 AM »
Oh.  We actually agree, Valerian.  I just think that you're taking a less idealistic, more current event approach; while I'm taking a more idealistic, less current event approach (typical "how it is vs. how it's supposed to be" argument).  :)

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #38 on: January 25, 2009, 10:11:41 AM »

No, that condition is not vague.  It's broad.  Mental pain or suffering is covered in detail in American Law.  The Geneva Convention treats mental pain or suffering as being any situation in which an individual's dignity is not preserved.

You said that, "A lot of interrogation is making sure that you break the enemy mentally.  Which means you wear them down in ways that any good liberal lawyer can call torture."

This statement is misguided and I take a bit of offense to it.  If a psychopath kills a woman in cold blood and I am appointed to defend him, I must perform my job and defend him.  Simply because I defend a psychopath doesn't mean that I must be a psychopath.  A lawyer appointed to defend a client must do the best he can, despite his political inclinations.

Furthermore, interrogation is not about breaking anyone mentally.  In fact, breaking someone mentally typically gives you false information.


 What constitutes mental pain and suffering is vague. ANYTHING can be called mental pain and suffering. You are also not understanding how interrogation works. To get the informnation the person has to be broken or worn down mentally. By either wearing them down with drugs, sleep deprivation or other mind wearing tactics that take time, or by other harder means which can mean (and isn't necessarily the right thing to do) physical persuasion. Not all information gotten in the last methods is reliable, but some -can- be. If comfirmed.

 
Quote
The Geneva Convention treats mental pain or suffering as being any situation in which an individual's dignity is not preserved./quote]

 That specifically. That can cover anything, including being held captive.

 I'm not talking about psychopath criminal, but someone caught on the battlefield and is being interrogated.

 Part of the problem the US has is we do not consider them as falling under the Geneva Convention while others do.

 
Quote
Listen, the act of detaining an individual without giving him recourse for a trial is ILLEGAL internationally and in the United States of America.  It breaches our own constitution.

The Military does not follow the Consitution. When you join it, you voluntarily give up many rights a civilian has, in order to protect it.

 I do  agree the detainees in Gitmo should have been processed faster than they were. Within a month of the first arriving they should've started processing them.

Offline PhantomPistoleer

Re: With the Stroke of a Pen...
« Reply #39 on: January 25, 2009, 12:57:46 PM »
The U.S. military does not follow the Constitution?  Okay.

Offline RubySlippers

Re: With the Stroke of a Pen...
« Reply #40 on: January 25, 2009, 03:10:59 PM »
The Geneva Conventions apply to prisoners of war and armed partisans of a legitimate government, how does that standard apply to insurgents and terrorists?

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #41 on: January 25, 2009, 08:23:56 PM »
The U.S. military does not follow the Constitution?  Okay.

 The US military does not follow or allow some rights in the Constotution. While you are a member of the military, you voluntarily give up some rights. One of them is the justice system. The military does not use the Judicial system, but uses it's own. As folowed by the UCMJ.

 
The Geneva Conventions apply to prisoners of war and armed partisans of a legitimate government, how does that standard apply to insurgents and terrorists?

  Many opposed to the war and many European governments want to give the detainees the protection a uniformed POW would get. They insist that the Geneva Convention -does- cover them.

Offline RubySlippers

Re: With the Stroke of a Pen...
« Reply #42 on: January 26, 2009, 12:11:55 PM »
As far as I can tell insurgents uniformed or not as a partisan force would have to represent a recognized government. Iran has given papers to all their trained non-military citizens stating they are acting for the Iranian government so that I can understand. But we are signees to the Geneva Accords I do feel strongly following previous case law it was applied such as the French Resistance in WWII ,which had a legitimate Government-in-Exile supporting it that the Allies recognized, the Europeans are drawing at straws here making a new class of protected persons. They are criminals I do support them getting treated fairly as criminals, but that is a lower standard than a POW.

Offline Apple of Eris

Re: With the Stroke of a Pen...
« Reply #43 on: January 26, 2009, 06:19:38 PM »
First off, the United States of America has ratified all the Geneva Conventions - with reservations, and exempting the two 1977 protocols.
Here's a quick source I found in two minutes: http://ask.yahoo.com/20020212.html

Second whether or not we here disagree whether 'insurgents' or 'enemy combatants' or whatever other label the previous administration decided to slap on prisoners in order to try and circumvent laws prohibiting torture, in July 2006, the Supreme Court ruled in its Hamdan decision that this article does indeed apply to top terror suspects detained in CIA-run prisons as well as at Guantanamo Bay.

The Supreme Court has said by virtue of this decision, that detainees at ANY facility run by the US must be treated as prisoners of war.

------------------------------------------------------------------------------------------------------------------------------------

On another line, I saw earlier someone said "Only Congress has the power to declare war." and someone replied that well this essentially was a war since congress authorized Bush to act however he wanted. Well you can't have it both ways. If it's not a war, then we aren't supposed to be there doing this in the first place, if it IS a war, then we need to abide by the rules we've adopted, not only when it's convienent.

And Military Courts that US soldiers face justice in are NOT like the military Tribunal system the prior administration attempted to create and which was deemed unconstitutional by our Supreme Court. Military Courts allow defendents to face their accusers, just like in a civilian court, they do not allow hearsay, or evidence gained illegally (read: via torture). The Tribunal system offered NONE of those protections, undermining the rule of law, the very founding prinicple on which the United States was founded.

This 'shadow court' in which people can be convicted and executed or imprisoned for life because 'Mr A heard Mrs. B talking to Mr. C about the defendant' is in no way a valid court system. It deprives the defendants, guilty or not of even the most basic protections of law. And if the only way to protect our society is to undermine the very fabric upon which it is created, are we really protecting it?

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #44 on: January 26, 2009, 07:04:10 PM »
On another line, I saw earlier someone said "Only Congress has the power to declare war." and someone replied that well this essentially was a war since congress authorized Bush to act however he wanted. Well you can't have it both ways. If it's not a war, then we aren't supposed to be there doing this in the first place, if it IS a war, then we need to abide by the rules we've adopted, not only when it's convienent.

 This is the first war we've been in that is not against a nation. The enemy does not abide by the Geneva Convention or decency in any way. The way they fight and the fact they do not fight for a nation makes their status not covered in the Geneva Cconvention.

And Military Courts that US soldiers face justice in are NOT like the military Tribunal system the prior administration attempted to create and which was deemed unconstitutional by our Supreme Court. Military Courts allow defendents to face their accusers, just like in a civilian court, they do not allow hearsay, or evidence gained illegally (read: via torture). The Tribunal system offered NONE of those protections, undermining the rule of law, the very founding prinicple on which the United States was founded.

This 'shadow court' in which people can be convicted and executed or imprisoned for life because 'Mr A heard Mrs. B talking to Mr. C about the defendant' is in no way a valid court system. It deprives the defendants, guilty or not of even the most basic protections of law. And if the only way to protect our society is to undermine the very fabric upon which it is created, are we really protecting it?

 That sounds like the US civil judicial system to me.

Offline Apple of Eris

Re: With the Stroke of a Pen...
« Reply #45 on: January 26, 2009, 07:21:57 PM »
This is the first war we've been in that is not against a nation. The enemy does not abide by the Geneva Convention or decency in any way. The way they fight and the fact they do not fight for a nation makes their status not covered in the Geneva Convention.

The SCOTUSA disagrees with you. And their words carry a slight bit more weight than yours or mine.

  That sounds like the US civil judicial system to me.

Civil court is where I spend most of my time. And while hearsay rules -are- relaxed, they still exist. Civilian Criminal and Military courts have many similar rules, Civil law is a whole different bear because you're not necessarily debating whether someone broke the law. Usually you're there simply to redress grievances (contract violations, someone's dog pooped on your lawn and the grass turned brown, etc). So unless you're planning on suing Al-Quaeda in civil court for damages to NY (which would be interesting if it could be done) Civil law doesn't apply.

Oh, interesting tidbit, well interesting to me since I'm involved with law and well, this is my post so :P
Civil suits were how some branches of the KKK were forced to disband. They were brought to trial in civil court, sued for damages and lost all their assets. Kind of cool. Too bad the criminal courts and the justice system in general couldn't always pull through.

Offline Ket

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Re: With the Stroke of a Pen...
« Reply #46 on: January 26, 2009, 08:24:38 PM »
The US military does not follow or allow some rights in the Constitution. While you are a member of the military, you voluntarily give up some rights. One of them is the justice system. The military does not use the Judicial system, but uses it's own. As folowed by the UCMJ.

Sorry to derail, but I feel I must set something straight.  The US Military does follow the Constitution.  And yes, there is the UCMJ, however the military judicial system is very similar to the civilian judicial system.  However, there are extra articles that we can be charged with, things that civilians wouldn't encounter, such as disobeying direct and lawful orders. 

Offline Zakharra

Re: With the Stroke of a Pen...
« Reply #47 on: January 26, 2009, 09:32:48 PM »
Sorry to derail, but I feel I must set something straight.  The US Military does follow the Constitution.  And yes, there is the UCMJ, however the military judicial system is very similar to the civilian judicial system.  However, there are extra articles that we can be charged with, things that civilians wouldn't encounter, such as disobeying direct and lawful orders. 

  Not quite. Military people give up some rights when they join the military. That's the way it was explained to me. In order to protect the Constitution, we give up being protected by it for a simpler judicial form of justice outside of the normal judicial system.

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Re: With the Stroke of a Pen...
« Reply #48 on: January 26, 2009, 09:58:40 PM »
Ummm, then why would I swear to support and defend something that denied me certain rights?!  There are things that military members aren't allowed to do, however they are not rights granted by the Constitution.  As for the justice system, while not exactly the same as the civilian judicial system, it works in pretty much the same way.  And it's not really any simpler. 

Offline RubySlippers

Re: With the Stroke of a Pen...
« Reply #49 on: January 27, 2009, 01:17:32 AM »
Our nation could could fix this we just need to amend the signature to leave the United States exempt from any provisions that grant status of soldier to any party not either a uniformed soldier or legitimate partisan connected to a legitimate government. One act of Congress could do that its not an issue. And since the High Court clearly is being so irrational on this they should do exactly that. Since the only grounds is the treaty we are bound to just correct that problem. Bush should have done this at the onset of such problems in the court, I would have pushed for it.

And people wonder why I don't ever like our government signing international treaties without giving us serious "escape" provisions with our signatures on them.