Kudos to the DOD and the Pentagon: Geneva Conventions to apply

[memyselfI]

Here you go, a positive military story. Kudos to the Pentagon for deciding the rule of law applies to them. I don't think the WH would have done this without the gentle persuasion from the SC but still credit where credit is due. :clap:

http://www.foxnews.com/story/0,2933,202922,00.html

Pentagon Memo Says Detainees Protected by Geneva Conventions
Tuesday, July 11, 2006

WASHINGTON — The Bush administration, called to account by Congress in the wake of a Supreme Court ruling blocking military tribunals, said Tuesday all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to protections under the Geneva Conventions.

White House spokesman Tony Snow said the policy, outlined in a new Defense Department memo, reflects the recent 5-3 Supreme Court decision blocking military tribunals set up by President Bush. That decision struck down the tribunals because they did not obey international law and had not been authorized by Congress.

The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to reverse the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections.

The memo instructs recipients to ensure that all Defense Department policies, practices and directives comply with Article 3 of the Geneva Conventions governing the humane treatment of prisoners.

"You will ensure that all DOD personnel adhere to these standards," England wrote.

The memo was first reported by the Financial Times, a British newspaper, and was later distributed to reporters at the Pentagon.



Full Financial Times story:

http://www.ft.com/cms/s/e1de1572-1089-11db-8eec-0000779e2340.html

Pentagon to give rights to detainees
By Demetri Sevastopulo in Washington

Published: July 11 2006 05:39 | Last updated: July 11 2006 21:03

Prisoners held in US military custody around the world are to be afforded some protection under the Geneva Conventions, the Pentagon has ruled, in a move that could have ramifications for prisoners held in secret Central Intelligence Agency prisons.

Responding to news broken on FT.com on Monday night, the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.

The White House insisted that the move did not represent a change in policy. But the memo, coupled with a statement by a Justice Department official before Congress yesterday, clearly contradicted a February 2002 memo in which President George W. Bush said: “Common Article 3 of Geneva does not apply to either al-Qaeda or Taliban detainees.”


The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantánamo Bay contravened both US law and the Geneva Conventions.


In the wake of the Supreme Court decision, experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions or to all detainees held at Guantánamo Bay and other US military detention facilities around the world.


That question appears to no longer apply in light of the Pentagon memo, although some Republicans on the Senate judiciary committee raised concerns that Geneva protections would be given to members of al-Qaeda.


But the move could increase pressure on the administration to rule that detainees being held by the Central Intelligence Agency in secret prisoners without access to lawyers - such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 2001 attacks – should receive Geneva protections.


The Pentagon memo says the Supreme Court ruled that “Common Article 3…applies as a matter of law to the conflict with al-Qaeda”. Steven Bradbury, acting assistant attorney-general, yesterday outlined the same view before the Senate judiciary committee, in a position that suggests the decision could impact other branches of government. The CIA on Tuesday declined to comment.


Jennifer Daskal, advocacy director at Human Rights Watch, said the Supreme Court ruling coupled with the administration policy shift could have implications for the CIA practice of holding detainees in secret prisons to which the International Committee of the Red Cross is not provided access, despite making repeated requests to the Bush administration.


“Enforced disappearances and incommunicado detention clearly violate this standard,” said Ms Daskal. “At a minimum, the administration can no longer justify its continuing denial of ICRC’s repeated request for access.”


At the judiciary committee hearing, administration lawyers argued that Congress should not force the administration to use courts martial to try detainees. They argued that courts martial would give detainees more rights than US citizens have in US civilian courts, and argued that the courts martial procedure would hamper efforts to gather intelligence from detainees captured on the battlefield.


But Lindsey Graham, a South Carolina Republican and former military lawyer, urged the administration to use the courts martial as a “baseline”, and then explain to Congress whether any procedural changes were required. When an official suggested that the administration did not want to do that, Mr Graham replied: “If you fight this…it is going to be a long, hot summer.”

[HC_Chief]

Article 6 of the GC clearly indicates that the scumf*cks we have in custody are not accorded rights of POWs (has to do with donning civie clothes and staging firefights from churches/mosques). Add to that the fact that AQ & the other nefarious groups of your cousins meme, have not SIGNED the GC, and I say put 'em all in a blender and make a big batch of Haji cat food.

Oh yeah, and **** you, scumbag. 4321

[memyselfI]

Article 6 of the GC clearly indicates that the scumf*cks we have in custody are not accorded rights of

Yeah, isn't it great we don't let terrorist scum decide what our criteria of rule of law and decency is???? The SC indicated the US should abide by the Geneva Conventions even if the enemy isn't. Basically, they saw the importance of not dropping our standards and principles simply because our enemy has none.

And now the Military seems to be agreeing. :clap:

[HC_Chief]

Yeah, isn't it great we don't let terrorist scum decide what our criteria of rule of law and decency is???? The SC indicated the US should abide by the Geneva Conventions even if the enemy isn't. Basically, they saw the importance of not dropping our standards and principles simply because our enemy has none.

And now the Military seems to be agreeing. :clap:

Actually, the administration is going to go before congress to have the law changed.

In the meantime, this brainless ruling by the SC will directly lead to more deaths of your cousins in Iraq and Afghanistan. :thumb:
Rather than taking civie-clothes sporting, firing from mosque, blowing up kids Haji captive, knowing he'll get an undeserved trial, our guys will be more apt to simply put an extra burst of .223 center-mass.

[memyselfI]

Actually, the administration is going to go before congress to have the law changed.

In the meantime, this brainless ruling by the SC will directly lead to more deaths of your cousins in Iraq and Afghanistan. :thumb:
Rather than taking civie-clothes sporting, firing from mosque, blowing up kids Haji captive, knowing he'll get an undeserved trial, our guys will be more apt to simply put an extra burst of .223 center-mass.

Look bigot, I don't have cousins in Iraq and Afghanistan.

And the Congress can do what they want but they also have to abide by the law and if they don't the SC will smack them, and their new law, the way they did the WH.

They can't have the Geneva Convention changed. And they aren't going to have a law changed. The problem was the WH was arbitrarily creating laws and courts outside the law. The Congres can attempt to give the POTUS that authority but it will have to be within the treaties and laws the US already has.

[FringeNC]

Giving Al-Qaeda Geneva Conventions protection is morally perverse. The Supreme Court and the DoD have made a mockery of the Geneva Conventions.

How can anyone think it's a good idea to reward Al-Qaeda's complete disregard for any accepted conventions of war?

It's ****ing insanity.

[HC_Chief]

Look bigot, I don't have cousins in Iraq and Afghanistan.

And the Congress can do what they want but they also have to abide by the law and if they don't the SC will smack them, and their new law, the way they did the WH.

They can't have the Geneva Convention changed. And they aren't going to have a law changed. The problem was the WH was arbitrarily creating laws and courts outside the law. The Congres can attempt to give the POTUS that authority but it will have to be within the treaties and laws the US already has.

No? Brothers then. I'm sure you'd love to take up arms too, but your family would have you shot for removing your Burkkha.

As far as congress is concerned, they need only define the AQ captives to be terrorists and voila, GC no longer applies. Again, Artilce 6 of the 4th GC gives them this RIGHT. Look it up. One of the SC justices even stated as much after ruling (one of the 5 to vote "yea" btw).

Your family doesn't follow <i>jus in bello</i>; they do not wear uniforms nor badges nor identifiers. They also refrain from following the guidelines set forth to allow them protection.

The SC ruled on a technicality - assuming the prisoners we have are <i>guerrilas</i>, rather than the terrorist scumf*ck everyone knows them to be. The problem for you is that technicality is easily countered within the guidelines of the GC itself.

I'm sure your heroes flip-flop and "Murderers!!" Murtha will try to block it, but if the administration can get the message out there as to what it is doing, i.e. defining terrorists, the block will be smashed.

[FringeNC]

Here's an analogy: Person X, Y, and Z have an agreement that when ever they fight, they will use boxing gloves. Now suppose person Q sucker punches person X in the nuts with a pair of brass knucks. It's absurd to suggest person X should use boxing gloves against Q, just because he is a much better fighter.

[Hydrae]

So you would just line them up and shoot them all? No room for any errors, no chance any of them might be innocent?

Just because the other guy doesn't fight by the rules doesn't make it ok to ignore the rules yourself, IMO. We like to believe we have the moral high ground here but it sounds like you are advocating getting in the mud with them and proving that we are no better. Sorry, I teach my kids that 2 wrongs do not make a right, I would hope our government might understand this concept.

[HC_Chief]

So you would just line them up and shoot them all? No room for any errors, no chance any of them might be innocent?

Don't delude yourself - the "people" we have in Guantanamo are bad dudes. They'd gut you <i>and</i> your kids in a heartbeat.

It is good to teach children to respect their fellow man, but it also good to teach them to defend themselves. The people we have down there are the worst of the worst. One day we will have to kill many of them. Bank on that.

[kcfanintitanhell]

. The people we have down there are the worst of the worst.

Have you actually been down there and seen that for yourself? If you have, I'll take your word for it. No offense intended, but I believe very little this administration says to the American public. So if they say "the people we have down there are the worst of the worst" I'm taking that with a heavy grain of salt.
This is not the America I grew up in. I just wonder why they waited until they knew they had an absolute moron in the White House to start carrying out and threatening these terrorist attacks?

[HerculesRockefell]

Here's a link to the actual copy of the memo: http://www.realclearpolitics.com/blog/2006/07/dod_memo_on_terror_detainees_j.html

It does not say that those captured are entitled to protections under the GC. It says that, in England's view, besides the tribunals, all DoD orders, policies, directives, etc. comply with Article 3.

[recxjake]

This is terrible.... they clearly should not be given these rights, they don't wear uniforms, they don't have a home country, they don't have a command structure....

Bush should just let them go and say hey, I tried, but the liberals want them free, let them be free

[SBK]

Have you actually been down there and seen that for yourself? If you have, I'll take your word for it. No offense intended, but I believe very little this administration says to the American public. So if they say "the people we have down there are the worst of the worst" I'm taking that with a heavy grain of salt.


I'm with you. I'm sure the upstanding citizens we have there, (that were caught on the battlefields fighting against the US), were just boyscouts working on a science project.

[Logical]

I am just amazed at the lack of logic involved. Under the Geneva Convention they can be held as prisoners of War for as long as we say the War on Terror is ongoing. This seems to be the ideal situation.

[|Zach|]

I am just amazed at the lack of logic involved. Under the Geneva Convention they can be held as prisoners of War for as long as we say the War on Terror is ongoing. This seems to be the ideal situation.
People are racing eachother to kick aside the very things we hold up high as a nation.

Great news...

Shining light on a hill.

[SBK]

People are racing eachother to kick aside the very things we hold up high as a nation.

Great news...

Shining light on a hill.

I don't think that's it. I don't think you could call the way that they are being treated down there inhumane. We treat those guys better than we do our own prisoners.

It's not like people are in arms cause we can't behead these guys now or something.

[Rausch]

People are racing eachother to kick aside the very things we hold up high as a nation.


Have you ever taken the time to read the Geneva convention documents?

The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.

http://www.genevaconventions.org/

So, by these rules if Saddam killed you for a terrorist act we have a right to kill you. Not imprison, KILL.

According to the Geneva convention guidelines...

[memyselfI]

I am just amazed at the lack of logic involved. Under the Geneva Convention they can be held as prisoners of War for as long as we say the War on Terror is ongoing. This seems to be the ideal situation.

That is true. But it is also true that while we can hold them there limits as to what we can do to them as a POW and as I understand it they cannot be held without charge indefinitely.


III. Judicial proceedings

Article 99

No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.

No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

No prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or counsel.

Article 100

Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power.

Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend.

The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.

Article 101

If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article 107.

Article 102

A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.

Article 103

Judicial investigations relating to a prisoner of war shall be conducted as rapidly as circumstances permit and so that his trial shall take place as soon as possible. A prisoner of war shall not be confined while awaiting trial unless a member of the armed forces of the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in the interests of national security. In no circumstances shall this confinement exceed three months.

Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any sentence of imprisonment passed upon him and taken into account in fixing any penalty.

The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in confinement awaiting trial.

Article 104

In any case in which the Detaining Power has decided to institute judicial proceedings against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before the opening of the trial. This period of three weeks shall run as from the day on which such notification reaches the Protecting Power at the address previously indicated by the latter to the Detaining Power.

The said notification shall contain the following information:

1. Surname and first names of the prisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession or trade, if any;

2. Place of internment or confinement;

3. Specification of the charge or charges on which the prisoner of war is to be arraigned, giving the legal provisions applicable;

4 . Designation of the court which will try the case, likewise the date and place fixed for the opening of the trial.

The same communication shall be made by the Detaining Power to the prisoners' representative.

If no evidence is submitted, at the opening of a trial, that the notification referred to above was received by the Protecting Power, by the prisoner of war and by the prisoners' representative concerned, at least three weeks before the opening of the trial, then the latter cannot take place and must be adjourned.

Article 105

The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defense by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defense. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defense.

The advocate or counsel conducting the defense on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defense of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defense, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defense on behalf of the prisoner of war.

The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly.

Article 106

Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Article 107

Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise be sent to the prisoners' representative concerned. It shall also be sent to the accused prisoner of war in a language he understands, if the sentence was not pronounced in his presence. The Detaining Power shall also immediately communicate to the Protecting Power the decision of the prisoner of war to use or to waive his right of appeal.

Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting Power a detailed communication containing:

1. The precise wording of the finding and sentence;

2. A summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defense;

3. Notification, where applicable, of the establishment where the sentence will be served.

The communications provided for in the foregoing subparagraphs shall be sent to the Protecting Power at the address previously made known to the Detaining Power.

[patteeu]

Look bigot, I don't have cousins in Iraq and Afghanistan.

And the Congress can do what they want but they also have to abide by the law and if they don't the SC will smack them, and their new law, the way they did the WH.

They can't have the Geneva Convention changed. And they aren't going to have a law changed. The problem was the WH was arbitrarily creating laws and courts outside the law. The Congres can attempt to give the POTUS that authority but it will have to be within the treaties and laws the US already has.

The SC should have to abide by the law too. And if they don't reverse or limit this ruling with respect to the GC at a future opportunity, we should withdraw from that treaty.

[patteeu]

So you would just line them up and shoot them all? No room for any errors, no chance any of them might be innocent?

Just because the other guy doesn't fight by the rules doesn't make it ok to ignore the rules yourself, IMO. We like to believe we have the moral high ground here but it sounds like you are advocating getting in the mud with them and proving that we are no better. Sorry, I teach my kids that 2 wrongs do not make a right, I would hope our government might understand this concept.

There's a lot of middle ground between the elevated protections of the GC and "getting in the mud with them." If everyone gets the benefit of GC protections whether they agree to abide by them or not, what incentive is there to agree to abide by them? We can give detainees some level of due process without coddling them with the kid gloves of the GC.

[Nightwish]

Article 6 of the GC clearly indicates that the scumf*cks we have in custody are not accorded rights of POWs (has to do with donning civie clothes and staging firefights from churches/mosques).
The day you get yourself appointed to the Supreme Court, your opinion on the matter might carry some weight. As it is, their opinion is a bit more meaningful than yours.

Add to that the fact that AQ & the other nefarious groups of your cousins meme, have not SIGNED the GC
Could you have come up with a less relevant argument? I think not. The Geneva Convention governs the actions of the captors, not the prisoners. It doesn't matter one whit whether the prisoners have signed it or not, it only matters whether the captors have signed it.

[Nightwish]

Here's an analogy: Person X, Y, and Z have an agreement that when ever they fight, they will use boxing gloves. Now suppose person Q sucker punches person X in the nuts with a pair of brass knucks. It's absurd to suggest person X should use boxing gloves against Q, just because he is a much better fighter.
That analogy might hold water if they knew with absolute certainty that every prisoner they are holding at Gitmo is a member of Al Qaeda. Since they haven't held any trials, the prisoners are there merely on suspicion of being members of AQ. Until such time as it is determined beyond a reasonable doubt that they are members of AQ, then it is right that the rules of the GC apply to them. You hawks are wanting to proceed as if they are guilty until proven innocent. Perhaps you are unaware that our legal system works in the opposite manner?

[go bowe]

There's a lot of middle ground between the elevated protections of the GC and "getting in the mud with them." If everyone gets the benefit of GC protections whether they agree to abide by them or not, what incentive is there to agree to abide by them? We can give detainees some level of due process without coddling them with the kid gloves of the GC.there's 2 elevated protections under the gc...

detainee and pow...

the court held that common article 3 applies, which covers persons detained...

but the court did not say that the gitmo bunch are pow's...

under common article 3, detainees are entitled to the minimun standards of "protection" provided for under international law and the law of the occupying power, iirc...

not the full panoply of due process rights under our case law, just "minimun" standards in regularly constituted military or civilain courts...

of course, i have no idea what minimun standards are in specific terms...

i don't see article 3 protections as kid gloves, just basic fairness as it is understood in our legal system...

it's like the issue of torture...

while appealing, the use of torture does bring us down towards the level of the terrorist, at least in a very general sense...

similarly, while appealing, the denial of fundamental legal rights and protections under international law goes against the whole notion of the rule of law...

while our system is not perfect, i trust it to get it right most of the time...

look, if a guy was taken on the battlefield in afghanistan or iraq, it shouldn't be too hard to convince a jury that he is guilty...

similarly, a guy who is a known aq operative should be pretty easy to convict, imo...

jurors, civilian or military, can make common sense inferences and the standard of beyond a reasonable doubt shouldn't be that hard for them to reach, after reviewing the evidence which landed the terrorists in gitmo in the first place...

[go bowe]

The SC should have to abide by the law too. And if they don't reverse or limit this ruling with respect to the GC at a future opportunity, we should withdraw from that treaty.i know you would really like to withdraw from the gc's, but is it a realistic possibility?

those pesky notions of international standards among the "civilized" nations and the rule of law keep getting in the way...

and politically, do you think that we could persuade congress to abandon the protections afforded to our pow's under the gc's (at least with respect to the nations which are party to the gc's)?

on a personal level, i agree that terrorists shouldn't get any protection at all, under international or domestic laws, but as a citizen, i want to apply our legal standards of fundamental fairness because i believe in the rule of law...

although unlikely in my view, we could attempt to negotiate an amendment to the gc's, defining terrorists and specifying very limited legal rights for them...

but i don't know which rights should apply in these cases...

it's a tough subject...

[FringeNC]

i know you would really like to withdraw from the gc's, but is it a realistic possibility?

those pesky notions of international standards among the "civilized" nations and the rule of law keep getting in the way...

and politically, do you think that we could persuade congress to abandon the protections afforded to our pow's under the gc's (at least with respect to the nations which are party to the gc's)?

on a personal level, i agree that terrorists shouldn't get any protection at all, under international or domestic laws, but as a citizen, i want to apply our legal standards of fundamental fairness because i believe in the rule of law...

although unlikely in my view, we could attempt to negotiate an amendment to the gc's, defining terrorists and specifying very limited legal rights for them...

but i don't know which rights should apply in these cases...

it's a tough subject...


His point is that the Supreme Court made a non-reasonable, perverse interpretation of the Geneva Conventions that turned the rewards for civilized behavior on its head.

[Nightwish]

His point is that the Supreme Court made a non-reasonable, perverse interpretation of the Geneva Conventions that turned the rewards for civilized behavior on its head.
Hardly. As I pointed out before, these detainees haven't been found beyond a reasonable doubt to actually be members of Al Qaeda. We can agree, I'm sure, on how harshly confirmed members of Al Qaeda should be treated. But as long as they are merely suspected members, then they deserve the protections of the GC. Anything less amounts to a witchhunt.

[Sully]

look, if a guy was taken on the battlefield in afghanistan or iraq, it shouldn't be too hard to convince a jury that he is guilty...

similarly, a guy who is a known aq operative should be pretty easy to convict, imo...

jurors, civilian or military, can make common sense inferences and the standard of beyond a reasonable doubt shouldn't be that hard for them to reach, after reviewing the evidence which landed the terrorists in gitmo in the first place...


Nicely said.

[HC_Chief]

Could you have come up with a less relevant argument? I think not. The Geneva Convention governs the actions of the captors, not the prisoners. It doesn't matter one whit whether the prisoners have signed it or not, it only matters whether the captors have signed it.

Actually, it <i>does</i>. Read the 4th GC then comment. Rights are not accorded to those who do not wear uniforms nor badges, nor does it protect those who refrain from acceptance of the rules of war. Special rules may also be applied by signing members. Read Article 6.

[Nightwish]

Actually, it does. Read the 4th GC then comment. Rights are not accorded to those who do not wear uniforms nor badges, nor does it protect those who refrain from acceptance of the rules of war. Special rules may also be applied by signing members. Read Article 6.
Since the courts have previously set precedent to the contrary, your point is moot.

[HC_Chief]

Since the courts have previously set precedent to the contrary, your point is moot.

Read the rider along with the ruling. Last portion of my statement is upheld by the SC. The administration need only take the matter before congress.

You still need to read the 4th GC.

[Nightwish]

Read the rider along with the ruling. Last portion of my statement is upheld by the SC. The administration need only take the matter before congress.

You still need to read the 4th GC.
I don't need to reread it. For now I'll trust the opinions and expertise of those who are appointed to the job of interpreting such things, over the opinions of Planeteers who can do nothing but whine that another "activist court" didn't do things the way they wanted them to.

[go bowe]

Actually, it does. Read the 4th GC then comment. Rights are not accorded to those who do not wear uniforms nor badges, nor does it protect those who refrain from acceptance of the rules of war. Special rules may also be applied by signing members. Read Article 6.don't those articles pertain to the rights/protections afforded (or withheld from) POW's?

article 3 has nothing to do with pow's and the court's ruling does not make them pow's...

article 4 and article 6 withhold pow protections from those who do not meet the requirements (uniforms, etc.), don't they?

too many people are confusing article 3 protections for "detainees" with pow status, they are different things...

[FringeNC]

Hardly. As I pointed out before, these detainees haven't been found beyond a reasonable doubt to actually be members of Al Qaeda. We can agree, I'm sure, on how harshly confirmed members of Al Qaeda should be treated. But as long as they are merely suspected members, then they deserve the protections of the GC. Anything less amounts to a witchhunt.

The ruling is much broader than Gitmo. From what I understand, all A-Q fighters are now entitled to GC protections on the battlefield.

[Nightwish]

The ruling is much broader than Gitmo. From what I understand, all A-Q fighters are now entitled to GC protections on the battlefield.
"all detainees at Guantanamo Bay and in U.S. military custody everywhere"

Doesn't say anything about "on the battlefield." It relates to the fact that the detainees are suspected "enemy combatants," and some are suspected AQ fighters, but none of them are known to be for certain, not to mention that one can be an enemy combatant without being a terrorist or a member of AQ. The ruling says nothing at all about how a prisoner should be dealt with once trial proceedings have passed and a given prisoner's status as a member of AQ has been confirmed.

[patteeu]

there's 2 elevated protections under the gc...

detainee and pow...

the court held that common article 3 applies, which covers persons detained...

but the court did not say that the gitmo bunch are pow's...

under common article 3, detainees are entitled to the minimun standards of "protection" provided for under international law and the law of the occupying power, iirc...

not the full panoply of due process rights under our case law, just "minimun" standards in regularly constituted military or civilain courts...

of course, i have no idea what minimun standards are in specific terms...

i don't see article 3 protections as kid gloves, just basic fairness as it is understood in our legal system...

it's like the issue of torture...

while appealing, the use of torture does bring us down towards the level of the terrorist, at least in a very general sense...

similarly, while appealing, the denial of fundamental legal rights and protections under international law goes against the whole notion of the rule of law...

while our system is not perfect, i trust it to get it right most of the time...

look, if a guy was taken on the battlefield in afghanistan or iraq, it shouldn't be too hard to convince a jury that he is guilty...

similarly, a guy who is a known aq operative should be pretty easy to convict, imo...

jurors, civilian or military, can make common sense inferences and the standard of beyond a reasonable doubt shouldn't be that hard for them to reach, after reviewing the evidence which landed the terrorists in gitmo in the first place...


I recognize that there are two levels of protection under the GC and that we are talking about the lesser standard, but while I don't know what those specific protections are, I'm confident that there's still a vast middle ground between them and the treatment our guys get when they end up in the hands of our adversaries.

Besides, I'm not as much focused on the actual treatment we offer to detainees as I am on the idea of what kind of treaties we should sign on to in the first place. I suspect that even without a treaty, we'd treat detainees relatively well as a rule.

Given that the opinion was so fractured, with at least 3 (and most likely a 4th in CJ Roberts) justices dissenting from the application of the GC Common Art 3 to Hamdan, I don't think it's clear at all that the treaty was intended to cover noncombatants like those we hold in Gitmo. IMO, we shouldn't have signed a treaty that does, and if the SCOTUS majority is correct (meaning we did sign such a treaty), we should get out of it and replace it with something similar that only binds the signatories in cases where they can expect reciprocity. The SCOTUS interpretation is a windfall to al Qaeda and all other illegal combatants in the world and it doesn't benefit the US in any way afaics.

[patteeu]

i know you would really like to withdraw from the gc's, but is it a realistic possibility?

those pesky notions of international standards among the "civilized" nations and the rule of law keep getting in the way...

and politically, do you think that we could persuade congress to abandon the protections afforded to our pow's under the gc's (at least with respect to the nations which are party to the gc's)?

on a personal level, i agree that terrorists shouldn't get any protection at all, under international or domestic laws, but as a citizen, i want to apply our legal standards of fundamental fairness because i believe in the rule of law...

although unlikely in my view, we could attempt to negotiate an amendment to the gc's, defining terrorists and specifying very limited legal rights for them...

but i don't know which rights should apply in these cases...

it's a tough subject...


I won't say it's unrealistic, but I don't think it's very likely. I think it's more likely that a future SCOTUS decision will reverse Hamdan wrt the Common Article 3 ruling, but that's less than a 50/50 proposition too, IMO, even if we have another SCOTUS nominee from the Bush administration.

[FringeNC]

"all detainees at Guantanamo Bay and in U.S. military custody everywhere"

Doesn't say anything about "on the battlefield." It relates to the fact that the detainees are suspected "enemy combatants," and some are suspected AQ fighters, but none of them are known to be for certain, not to mention that one can be an enemy combatant without being a terrorist or a member of AQ. The ruling says nothing at all about how a prisoner should be dealt with once trial proceedings have passed and a given prisoner's status as a member of AQ has been confirmed.

Right, so immediately after we take them prisoner on the battlefield, they are entitled to GC protection. That means no sodium pentothal to find out where the nuke is buried.

[penchief]

It's nice to see that there is still some life left in our unique system.

On a side note, I'm also more encouraged by the approach this administration has been faking most recently.

[Nightwish]

Right, so immediately after we take them prisoner on the battlefield, they are entitled to GC protection. That means no sodium pentothal to find out where the nuke is buried.
If we take them prisoner on the battlefield, then they are prisoners of war, by definition. That's already settled in the GC, so your point is moot. Try again.

[FringeNC]

If we take them prisoner on the battlefield, then they are prisoners of war, by definition. That's already settled in the GC, so your point is moot. Try again.

You still don't get it. Under a reasonable reading of the GC, they are most certainly NOT entitled to protection. They are not uniformed, nor did AL-q sign the GC. For some unknown reason, the SC decided to re-write the the GC and make it apply to Al-Q.

Once again, the whole reason for the GC in the first place was to dissuade the exact type of warfare Al-Q engages it. It is simply morally perverse to extend the treaty to them. It makes the whole thing entirely meaningless if playing by the rules is not rewarded.

[patteeu]

The SC decision seemed to hinge primarily on language in the GC Common Article 3 that said they applied to nonuniformed combatants when they are involved in a fight that is "not international in character."

Without doing too much research, both the argument of the majority and that of the dissent seem arguable. The majority says the fighting in Afghanistan after the Taliban fell was not international in character because they think that only fights between nations are international in character and this was not a fight between nations. The dissent says that it doesn't get much more international than what was going on in post-Taliban Afghanistan where people from many nations were converging to do battle.

Like I said, I didn't do a lot of research to see which argument is more compelling, but it seems to me that if there is any ambiguity, the court should err on the side of interpretting the GC in a manner that is favorable to the US and I don't think they did that.

[Logical]

His point is that the Supreme Court made a non-reasonable, perverse interpretation of the Geneva Conventions that turned the rewards for civilized behavior on its head.

Just a curiousity, but what proof do you actually have that the Gitmo detainees have all acted in a manner that is not worthy of being treated in accordance with the humane standards of the Geneva Convention? What trial or tribunal has made that determination and where can I read their findings?

[go bowe]

If we take them prisoner on the battlefield, then they are prisoners of war, by definition. That's already settled in the GC, so your point is moot. Try again.actually, that's not correct...

pow protections, which are many, do not apply to combatants who do not wear uniforms, insignia, etc.

like fringe says (or was it somebody else?), read article four of the gc's...

[go bowe]

I recognize that there are two levels of protection under the GC and that we are talking about the lesser standard, but while I don't know what those specific protections are, I'm confident that there's still a vast middle ground between them and the treatment our guys get when they end up in the hands of our adversaries.
* * *of course there's a vast difference between the gc's protections and what the terrorists do to our guys...

but i don't believe that the measuring stick for our conduct should be what terrorists do, i really don't...

[|Zach|]

of course there's a vast difference between the gc's protections and what the terrorists do to our guys...

but i don't believe that the measuring stick for our conduct should be what terrorists do, i really don't...
I don't know how many times this has to be said. And I don't know why so many are running away from it as far as I can.

We are setting the standard. And I love it.

[|Zach|]

What trial or tribunal has made that determination and where can I read their findings?
Just trust us and run along Jim...

Run along...

[go bowe]

* * *
Besides, I'm not as much focused on the actual treatment we offer to detainees as I am on the idea of what kind of treaties we should sign on to in the first place. I suspect that even without a treaty, we'd treat detainees relatively well as a rule.

Given that the opinion was so fractured, with at least 3 (and most likely a 4th in CJ Roberts) justices dissenting from the application of the GC Common Art 3 to Hamdan, I don't think it's clear at all that the treaty was intended to cover noncombatants like those we hold in Gitmo. IMO, we shouldn't have signed a treaty that does, and if the SCOTUS majority is correct (meaning we did sign such a treaty), we should get out of it and replace it with something similar that only binds the signatories in cases where they can expect reciprocity. The SCOTUS interpretation is a windfall to al Qaeda and all other illegal combatants in the world and it doesn't benefit the US in any way afaics.i don't know that the treaty could have intended to cover what we call enemy combatants, since terrorists didn't yet exist (or played little part in world affairs) in the 1940's (or whenever the gc's were ratified)...

i think the gc's, like all existing law, have to be applied until we come up with a better legal solution that is more effective to combat terrorists...

on some level, i would not be adverse to attempting to get a new gc written just for terrorists...

but i don't know what that new convention would look like...

as far as the windfall to aq, sometimes things have unintended consequences yet are still important to do for other reasons...

maintaining our integrity and commitment to the rule of law rather than the law of the jungle is a worthwhile goal, imo, even if it does indirectly benefit aq in some way...

sounds strange to hear myself say that, but i guess i really do believe it... :shrug:

[go bowe]

The SC decision seemed to hinge primarily on language in the GC Common Article 3 that said they applied to nonuniformed combatants when they are involved in a fight that is "not international in character."

Without doing too much research, both the argument of the majority and that of the dissent seem arguable. The majority says the fighting in Afghanistan after the Taliban fell was not international in character because they think that only fights between nations are international in character and this was not a fight between nations. The dissent says that it doesn't get much more international than what was going on in post-Taliban Afghanistan where people from many nations were converging to do battle.

Like I said, I didn't do a lot of research to see which argument is more compelling, but it seems to me that if there is any ambiguity, the court should err on the side of interpretting the GC in a manner that is favorable to the US and I don't think they did that.i wondered about the "not international" thing, since it could obviously be interpreted differently and the majority's opinion on it didn't seem any more compelling than the dissent's...

i think that a part of it is that article 3 appears to cover detainees other than pows, and enemy combatants are definitely not pow's...

statutory interpretation, if you will...

but i don't think that the supremes should base their rulings on some perceived notion as to what our best interests are...

the supremes should base their rulings on the law, whatever it is...

let the legislative and executive branches figure out what our best interests are and how to pursue them...

[patteeu]

of course there's a vast difference between the gc's protections and what the terrorists do to our guys...

but i don't believe that the measuring stick for our conduct should be what terrorists do, i really don't...

Nor do I, but my sense is that GC treatment, even of nonPOWs, is pretty gentle, but I don't really know exactly what the standard is.

[patteeu]

i wondered about the "not international" thing, since it could obviously be interpreted differently and the majority's opinion on it didn't seem any more compelling than the dissent's...

i think that a part of it is that article 3 appears to cover detainees other than pows, and enemy combatants are definitely not pow's...

statutory interpretation, if you will...


but i don't think that the supremes should base their rulings on some perceived notion as to what our best interests are...

the supremes should base their rulings on the law, whatever it is...

let the legislative and executive branches figure out what our best interests are and how to pursue them...

I agree that the justices should base their rulings on the law, whatever it is, but when it isn't completely clear what the law is, I think they should interpret it based on what they think the American position would have been when they were negotiating and ratifying the treaty instead of what Europeans or Bangledeshians or Kenyans might have been thinking.

When a court misconstrues a statute, it's theoretically not too difficult for Congress to make things right by passing a different statute, but when they misconstrue a treaty, it's much more difficult for the Executive branch to renegotiate a multilateral treaty and get all the countries involved to ratify the revision. I think a little more deference to the interpretation of the other branches is warranted when there is ambiguity in the treaty language as it appears there is in this case.

[alanm]

Don't you just hate it when a decent discussion degenerates into a debate of the law. :cuss:
:cuss: :cuss: :banghead: :)

[memyselfI]

of course there's a vast difference between the gc's protections and what the terrorists do to our guys...

but i don't believe that the measuring stick for our conduct should be what terrorists do, i really don't...

:clap:

Neither do I. The people who do should be called on it. :clap:

[go bowe]

I agree that the justices should base their rulings on the law, whatever it is, but when it isn't completely clear what the law is, I think they should interpret it based on what they think the American position would have been when they were negotiating and ratifying the treaty instead of what Europeans or Bangledeshians or Kenyans might have been thinking.

When a court misconstrues a statute, it's theoretically not too difficult for Congress to make things right by passing a different statute, but when they misconstrue a treaty, it's much more difficult for the Executive branch to renegotiate a multilateral treaty and get all the countries involved to ratify the revision. I think a little more deference to the interpretation of the other branches is warranted when there is ambiguity in the treaty language as it appears there is in this case.this sounds a like like your position on the constitution...

the original intent of the framers rather than the "realities" of modern life in america, right?

i think the majority did what the 5 vote majority has been doing for a long time, and that is interpreting laws and treaties based on today's understanding of and/or application of the law to the facts of cases before the court...

wrt to gc, i don't think that the american negotiators had any idea that there would be a new category of terrorists to deal with in the future (when were the gc's ratified? around 49, wasn't it?)...

but they did make a category that seems to cover all detainees other than pow's...

until new legislation or treaty modifications expressly change the language of the gc's, i think the court (the majority) got it right...

but i'm a living document kind of guy, so that's no surprise...

i have to say i admire your consistency regarding interpretation of the original intent of legal documents...

and other than the original intent versus living document thing, i agree with everything in your post...

[go bowe]

:clap:

Neither do I. The people who do should be called on it. :clap:what, are you trying to get me stoned?

and i don't mean high on pot...

having YOU agree with me could end my d.c. career altogether...

[patteeu]

but they did make a category that seems to cover all detainees other than pow's...


I'm not so sure about that. They definitely defined a class of people as POWs, but my understanding is that the class of people defined in Common Article 3 is characterized by at least 2 criteria: (1) nonPOWs and (2) involved in a conflict that is not international in character. That suggests that there is at least a third category of people who are nonPOWs involved in conflicts which ARE international in character. But I don't claim to be an expert on the GC so I could be as wrong about this as Nightwish has been about John Murtha or as jAZ has been about Karl Rove. :Poke:

When a court misconstrues a statute, it's theoretically not too difficult for Congress to make things right by passing a different statute, but when they misconstrue a treaty, it's much more difficult for the Executive branch to renegotiate a multilateral treaty and get all the countries involved to ratify the revision. I think a little more deference to the interpretation of the other branches is warranted when there is ambiguity in the treaty language as it appears there is in this case.

I heard an interesting comment on NPR yesterday from a law professor at UC Berkeley. He suggested that if Congress were inclined to do so, they could indicate to the SCOTUS that the court had misinterpreted the GC in their Hamdan decision and correct that situation legislatively. If this is true, then my fear that the only way to change this ruling is to renegotiate the treaty is unfounded. Of course, that particular law professor is one of the former Justice Department officials who set the policy that was refuted by the Court's Hamdan decision to begin with so whether his position on this issue is mainstream/accepted or not might be questioned.

[Nightwish]

But I don't claim to be an expert on the GC so I could be as wrong about this as Nightwish has been about John Murtha or as jAZ has been about Karl Rove.Where exactly have I been wrong about John Murtha? I can point to dozens of instances where you have been wrong about him (or mistakenly offered up your particular spin on him as objective), repeating the oft-chanted but unfounded mantra that his plan is a "cut and run" strategy (while ignoring the fact that the Republicans who first started the chant publically retracted it, at least for awhile, until the party gave up trying to distance themselves from the mantra since it was working so well to further divide the political landscape for them, a favored GOP strategy).

[patteeu]

Where exactly have I been wrong about John Murtha?

One of your early erroneous takes on the Murtha position:

Anyway, he never suggested that ALL the troops be removed, whether Iraq is prepared to defend itself or not. That was just the Republican misrepresentation, the one which they retracted. What he asked for was that the troops be brought home as soon as it was practical to do so. "As soon as it's practical" would necessarily entail waiting until the Iraqis are sufficiently trained to be able to defend themselves.

[Nightwish]

One of your early erroneous takes on the Murtha position:How exactly was that erroneous? Both Murtha's comments and my interpretation of the comment were made before all the sectarian infighting started escalating and looking like civil war might be inevitable. The situation in Iraq has changed dramatically since he made that statement. Both his opinion on the matter, and mine (conditionally) have changed due to current circumstances. We differ, though, on how soon and how many. He has lately become more about full withdrawal, seeming to believe that civil war is inevitable, while I am for a more calculated, incremented withdrawal, and I'm not fully convinced that a fullscale civil war is going to occur. Nevertheless, I don't believe I was wrong about Murtha's comments at the time they were made. You, on the other hand, have kept up your "it's a cut and run plan" unfailingly from day one, willfully ignoring the fact that his plan mostly calls for withdrawal only to neighboring countries, not home and not primarily to Okinawa. You deliberately tried to misrepresent his position as if Okinawa was his prime destination, though it was mentioned almost as an afterthought long after he had already mentioned Qatar and Kuwait as primary goals. You do know where Qatar and Kuwait are, right? You'd have to be one major homer to think that withdrawing to Qatar and Kuwait is equal to hoofing it home or halfway across the globe, which you apparently seem to believe.

[patteeu]

How exactly was that erroneous? Both Murtha's comments and my interpretation of the comment were made before all the sectarian infighting started escalating and looking like civil war might be inevitable. The situation in Iraq has changed dramatically since he made that statement. Both his opinion on the matter, and mine (conditionally) have changed due to current circumstances. We differ, though, on how soon and how many. He has lately become more about full withdrawal, seeming to believe that civil war is inevitable, while I am for a more calculated, incremented withdrawal, and I'm not fully convinced that a fullscale civil war is going to occur. Nevertheless, I don't believe I was wrong about Murtha's comments at the time they were made. You, on the other hand, have kept up your "it's a cut and run plan" unfailingly from day one, willfully ignoring the fact that his plan mostly calls for withdrawal only to neighboring countries, not home and not primarily to Okinawa. You deliberately tried to misrepresent his position as if Okinawa was his prime destination, though it was mentioned almost as an afterthought long after he had already mentioned Qatar and Kuwait as primary goals. You do know where Qatar and Kuwait are, right? You'd have to be one major homer to think that withdrawing to Qatar and Kuwait is equal to hoofing it home or halfway across the globe, which you apparently seem to believe.


LOL You can have the last word on this Nightwish because I know you'll never admit your error. I'll let the facts speak for themselves.

[Nightwish]

LOL You can have the last word on this Nightwish because I know you'll never admit your error. I'll let the facts speak for themselves.
Fact: you have routinely interpreted Murtha's words through the lenses of right-wing rhetoric and failed to understand why we don't simply roll over and accept your spin as objective. That fact does speak for itself.