October 6, 2010

Things are going badly for Obama's prosecutors in their first effort at trying a Guantanamo detainee in federal court.

The NYT reports:
The defendant, Ahmed Khalfan Ghailani, was scheduled to begin trial on Wednesday in Federal District Court on charges he conspired in the 1998 bombings of the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The attacks, orchestrated by Al Qaeda, killed 224 people....

Mr. Ghailani’s lawyers say that he was tortured while in C.I.A. custody, and argued that any statements he made or evidence derived from those statements was tainted and should be inadmissible.

Prosecutors say the witness, Hussein Abebe, sold Mr. Ghailani the TNT that was used to blow up the Embassy in Dar es Salaam. They say Mr. Abebe agreed voluntarily to testify against Mr. Ghailani, and that his decision to cooperate was only remotely linked with the interrogation.
But in a three-page ruling, Judge Kaplan wrote that “the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.”
Did the judge — Lewis A. Kaplan — have much or any choice, applying the precedents about excluding evidence? If not — and I'm thinking not — then this all had to have been anticipated when the decision was made to forgo military trials. I want to hear President Obama explain his decision and the judge's decision to the American people. He must be capable of doing that.

131 comments:

Alex said...

Of course liberals feel the war on terror is a criminal justice matter rather then a WAR. Just execute the motherfucker, no trial needed.

Mike said...

"I want to hear President Obama explain his decision and the judge's decision to the American people. He must be capable of doing that."

Oh, Ann. You are funny sometimes!

Sixty Grit said...
This comment has been removed by the author.
rdkraus said...

This seems like exactly the kind of thing some people warned against.

If Captain KickAss explains it, then we'll find out this is Bush's fault and/or the result of mean spirited Tea Party extremists.

Maguro said...

Oh, this is an easy one. Blame Bush!

edutcher said...

Apparently the incompetence (or duplicity) of this administration is limitless.

PS Uh, any evidence (I hate to be a prude, but...) that Ghilani was tortured?

former law student said...

It's been a while since I took evidence -- is a living breathing person really the fruit of the poisonous tree? Abebe was not arrested because Ghailani fingered him, right? Abebe's testimony has not been coerced, right?

I'd like to read the briefs.

TMink said...

"then this all had to have been anticipated when the decision was made to forgo military trials."

Right. You have more faith in the competence of the Holder DOJ than I do.

Trey

Richard Dolan said...

Everything about the Gov't's decision to proceed with a trial in SDNY is odd. Judge Kaplan had a few other pertinent observations in his ruling. According to the NYT, the judge "added that Mr. Ghailani’s status as an ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”

If the defendant will still be imprisoned no matter what the outcome of the trial, remind me again what the Gov't's reason is in conducting this trial. The usual response is along the lines of "we need to show that the Constitution works." Well, who are we supposedly showing that to (I think it's mostly the editors of the NYT and other Upper West Side denizens, not the jihadis hiding out in Waziristan), and why does anyone think that the Constitution only "works" if the Gov't pursues these trials in civilian courts?

AllenS said...

Sounds like he won't be convicted of anything. Good job, Obama. You too, Holder.

Rockport Conservative said...

Our president and his DOJ seem to think that like Mom and Dad a simple "because I said so", is ample explanation.

Justin said...

People should read the opinion before making assumptions - only three pages, so no excuse! (A longer opinion will follow.) Notably, when asked, the government agreed that Judge Kaplan should assume for the purposes of deciding the motion that Ghailani's statements were coerced. That essentially left one question: whether the connection between Ghailani's coerced statements and the testimony at issue was sufficiently remote or attenuated. Since the government wouldn't have found the witness at issue without Ghailani's testimony, the answer to that question is obvious.

traditionalguy said...

Obama is intentionally showing the Muslims that he is weak and is willing to stop resisting their attacks on Israel and on the USA. But as a community organizer he stands ready to mediate a surrender offer that they cannot refuse. That should make Sharia disciples leave us alone.

Freder Frederson said...

Of course liberals feel the war on terror is a criminal justice matter rather then a WAR. Just execute the motherfucker, no trial needed.

Please explain under which laws of war (U.S. or the international laws of war to which this country subscribes--and has for the better part of a century) we can execute a captive, no matter what his status, without a trial.

And can Ann kindly explain how even under the warped, blatantly unfair and unconstitutional rules that Bush dreamed up for his military tribunals, evidence obtained under torture would be allowed. Because of course the president maintained all along, "we don't torture."

Ann, are you now claiming that torture is okay with you after all?

Freder Frederson said...

I know some of your fans are big fans of torture Ann, but are you finally admitting you have no problem with it?

Ignorance is Bliss said...

The judge clearly made the wrong decision. There can be no connection between Mr. Ghailani's statements obtained under torture and the government finding anyone else involved in the bombing. We know this with absolute certainty because...wait for it...here it comes...

Torture doesn't work.

QED.

Lem said...

I believed 9/11 had given us an opportunity to try something different with the terrorist.. the military tribunals.

For the opportunity to come again I'm assuming it would take a bigger 9/11.. and even then Obama says we can "absorb it".. no big deal.

AllenS said...

We shot German prisoners when we caught them with US Army uniforms on. Short trial, then firing squad.

Put me down as a big torture advocate.

Freder Frederson said...

Sounds like he won't be convicted of anything. Good job, Obama. You too, Holder.

Why blame Holder and Obama. It was Cheney, Bush, Rumsfeld, Yoo, et al. who instigated the torture regime and got us into this mess. Heck, even Ashcroft apparently tried to stop it.

Now it is coming back to bite us in the ass. Lay the blame where it belongs.

jerryofva said...

Freder:
The Defendent does not fit the rules set by the Geneva convention to be allowed status as POW. That makes him a non-governmental agent making war, i.e., he is a so-called unlawful combatant. Under customary international law he is subject to execution without trial. Under the Constitution Congress is authorized to pass laws dealing with Pirates and those who violate the rule of war. The rules under which the military tribunals are organized have be set by Congress under this provision of the Constitution. This is only Constitutional protection that an unlawful combatant is entitled to. If Congress so deemed and merely restated customary international law, i.e., execution without trial, then it would be a constitutional act. Non-US citizens not residing in the United States receive no protection from the Constitution.

AllenS said...

Torture them, then the firing squad.

Freder Frederson said...

Put me down as a big torture advocate.

I'll add you to my list of despicable human beings who has no idea what the meaning of the Constitution is or what exactly the purpose of our form of government is.

Joe said...

(The Crypto Jew)
I'll add you to my list of despicable human beings who has no idea what the meaning of the Constitution is or what exactly the purpose of our form of government is.

I’m not sure, but I don’t think it’s to provide Constitutional Rights for non-citizen, war criminals…I might be wrong about that Freer. You might ask the German spies and saboteurs that were tried by MILITARY COMMISSION in the Second World War, a d then executed, but as that was done by Progressive icon, FDR, I’m sure it passes Constitutional muster. Military law allows for the execution of spies, with little or no trial, or it DID…I realize history and military law may not be your forte Freer.

Lincolntf said...

Calling waterboarding "torture" doesn't make it any worse than it really was, you know. It was an alternative to torture, so we didn't go back to the days of FDR and rapid, secret executions or worse.
War is not a law enforcement activity and enemy combatants don't have Constitutional rights.
This case has no business in civilian court.
To even discuss it requires one to imagine what the process should look like in a system that doesn't exist, and adhere rigidly to rules that haven't been written.

Joe said...

(The Crypto Jew)
Oh and Freder this is from Andy McCarty, noted Fascist and it puts the BLAME SQUARELY ON OBAMA AND HOLDER:
The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).
Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.

So yes, this is about Obama and Holder and NOT about military tribunals. The point was to demonstrate the non-necessity of them, oh well.....

Big Mike said...

Those of us who remember the mockery that Zacarias Moussaoui made of the US legal system back in early 2002 more or less predicted this.

The danger that liberals overlook is implicit in Alex's initial post at 10:57, which is that maybe our soldiers won't try as hard to take prisoners. I mean, is there a point to risking your life and the lives of your fellow soldiers to capture someone who might be let go by some civilian court years afterwards? A quick squeeze of the trigger and case is closed.

LarsPorsena said...

"...I'll add you to my list of despicable human beings who has no idea what the meaning of the Constitution is or what exactly the purpose of our form of government is.

Don't get your thong in a twist. It's not like you'd actually fight about any of this.

former law student said...

Since the government wouldn't have found the witness at issue without Ghailani's testimony, the answer to that question is obvious.

Obvious? A witness is not a bag of heroin. A witness is not evidence in himself. No one knows in advance what a witness will say.

edutcher said...

Freder Frederson said...

Of course liberals feel the war on terror is a criminal justice matter rather then a WAR. Just execute the motherfucker, no trial needed.

Please explain under which laws of war (U.S. or the international laws of war to which this country subscribes--and has for the better part of a century) we can execute a captive, no matter what his status, without a trial.

And can Ann kindly explain how even under the warped, blatantly unfair and unconstitutional rules that Bush dreamed up for his military tribunals, evidence obtained under torture would be allowed. Because of course the president maintained all along, "we don't torture."


First, it wasn't torture until the Democrat Party needed a political ax to grind.

Second, the tribunal rules are the same ones FDR used to execute the German infiltrators landed by U-boat to commit sabotage in this country in 1942.

Finally, prisoners have been executed in the field on a great many occasions by US troops. Snipers are a prime example. Another is enemy troops caught red-handed committing atrocities against civilians.

Once you get away from the Lefty agenda and the Demos' treasonous willingness to undermine the country's military to advance themselves politically, history can be a real bitch.

Methadras said...

These boys know a lot about back doors? If you protest against them trying these sub-humans in New York, why they will just do an end run around your little protestations and have judges come up with the most thinly veiled excuses for reasons not to continue a prosecution. Saying a witness can't provide evidence because of someone else non-related actions is ridiculous.

mrs whatsit said...

Fred, since you understand the Constitution so much better than the law professors, attorneys, and others here, perhaps you could explain why the Constitution requires according due process to this non-citizen whose enemy actions took place outside this country, but permits President Obama to order the assassination without trial or due process of any kind of American citizen Anwar al-Awlaki, no matter where he is found? And no, don't claim that BushhitlermcChimp did it first -- apparently, he didn't.

Before you answer, please go read Hamdi v Rumsfeld, the 2004 US Supreme Court case which held that the Constitution does not permit the United States to imprison American citizens as enemy combatants without according them at least some due process. You're going to have to explain why it's okay to kill them without due process, even though it's not okay to put them in prison.

Assuming you can offer some Constitutional explanation that holds a little more water than "Anything Obama does is just ducky with me," you might want to pass the explanation on to Obama et al., who haven't even tried to justify it on Constitutional grounds.

Freder Frederson said...

The Defendent does not fit the rules set by the Geneva convention to be allowed status as POW. That makes him a non-governmental agent making war, i.e., he is a so-called unlawful combatant. Under customary international law he is subject to execution without trial. Under the Constitution Congress is authorized to pass laws dealing with Pirates and those who violate the rule of war. The rules under which the military tribunals are organized have be set by Congress under this provision of the Constitution.

Your first statement is correct; he doesn't qualify as a POW. The rest of what you wrote demonstrates that you are a complete imbecile and you know nothing about either the UCMJ or the Geneva Conventions, or any other International laws and customs of wars. Furthermore, with the internet at your fingertips, you can't even be bothered to do a minimal amount of research to find out if your opinions are even close to reality.

They aren't/

John Lynch said...

If I, a relatively uninformed person of no account, could predict that the exclusionary rule would bar all confessions from terrorists, then why didn't the Attorney General and the President?

It's bizarre that they thought that somehow this would work.

It's really strange.

Freder Frederson said...

Constitution requires according due process to this non-citizen whose enemy actions took place outside this country, but permits President Obama to order the assassination without trial or due process of any kind of American citizen Anwar al-Awlaki, no matter where he is found? And no, don't claim that BushhitlermcChimp did it first -- apparently, he didn't.

What makes you assume that I believe that Obama has any such power.

For the record, I don't think he does. I don't think Bush had the right to declare anywhere in the world a terrorist was sitting a "combat zone" and neither does Obama.

Bill said...

Verdict first, trial after? If you believe in the American justice system then you believe in trials where the established rules of evidence-- including exclusionary rules-- apply. The Obama administration didn't set up the circumstances under which proof is likely to be precluded. I suppose they could have continued using the kangaroo set-up the Bush DOJ favored, but that shamed the US before the world. As a lawyer I have to believe that the system works-- if I don't think that then I am obliged to work for change, and to point out that the system is broken in defending my clients, in the tradition of William Kunsler. Prosecutors, you may recall, have a higher ethical duty than defense attorneys-- they must seek justice. A setup that prevents that is antithetical to our entire process.

It ain't just about winning even when the bad guys are really, really bad.

Freder Frederson said...

Don't get your thong in a twist. It's not like you'd actually fight about any of this.

Have you fought about any of this?

former law student said...

I'm tired of repeating why this take is wrong -- please google it. Under the Geneva Conventions people who are not POWs are to be treated as civilians -- yes, even spies and saboteurs.

Further, a strict application of the Geneva Conventions justifies the torture John McCain was subjected to, because John McCain was an unprivileged combatant under the Geneva Conventions: First, the Vietnam war was a civil war, and McCain was not an insurgent. Second, the US had not declared war on Vietnam, which would have made McCain an enemy soldier. So McCain had no PoW status under the Geneva Conventions, and according to the jerryofva standard the North Vietnamese were justified in torturing him. Luckily, US diplomats persuaded the North Vietnamese that McCain was de facto an enemy soldier, despite the absence of a formal declaration of war.

You might ask the German spies and saboteurs that were tried by MILITARY COMMISSION in the Second World War, a d then executed

These were spies and saboteurs representing an enemy country, Germany, so their situation was clear-cut. In any event, the current Geneva Conventions were ratified in 1949, years after these spies were tried and executed.

jerryofva said...

Freder:

I am afraid that you are the imbecile. I work with this stuff every day.

Freder Frederson said...

First, it wasn't torture until the Democrat Party needed a political ax to grind.

This of course is simply a lie. Under any statutory definition of torture (under U.S. law or international treaties to which we are a signatory), established standards which the U.S. state department used to accuse other countries of torture, and under which we tried and convicted others of war crimes after World War II, what we did (including waterboarding) was torture.

Joe said...

(The Crypto Jew)
In any event, the current Geneva Conventions were ratified in 1949, years after these spies were tried and executed.


As I understand the CURRENT (’49) Conventions “unlawful combatants” may be executed…and NO, McCain was NOT an “unlawful combatant” subject to torture. Being an unlawful combatant refers not to you being in a war, but wearing a recognizable insignia marking you as a combatant. McCain was, and so was NOT an unlawful combatant…many Al Qaida fail to do so and so ARE….YOUR understanding of the law is “interesting” to say the least.

And no, spies and saboteurs are NOT accorded civilian status.

The ’49 Conventions tried to walk the line between acceptance of the French Maquis and anything goes….

jerryofva said...

Former Law student:

The characterization of the Vietnam War as a "Civil
War" is false. South Vietnam was an internationally recognized government and allied with the United States. McCain was lawful combatant. The rest of your argument is garbage.

John Lynch said...

FLS-

What?

McCain wasn't an insurgent (kind of hard not being Vietnamese), and even if he was the Convention would apply to him because he was following the rules- wearing a uniform and bearing arms openly.

Read the Convention. It's possible to be a partisan or guerrilla and still be covered. You have to have some kind of uniform, bear arms openly, and have a chain of command that's responsible for your actions.

Anyway, Vietnam was more an invasion of one country by another than a civil war. Saying it's a civil war would make the Korean War a civil war, or Iraq's invasion of Kuwait a civil war.

If we want to disregard boundaries that were set at decolonization, that's a big can of worms to open.

Combatants that don't follow the rules aren't civilians under the Convention. They don't follow the rules.

The US has its own set of rules that apply to people who don't follow the Convention, which is fine. Those rules just shouldn't be the US Constitution.

Freder Frederson said...

I am afraid that you are the imbecile. I work with this stuff every day

In what capacity?

You have obviously never read the Geneva Conventions, The Geneva Conventions do not allow the summary execution of anyone under any circumstances, neither does U.S. military law.

If by "customary International law" you mean the law of the early 19th century, well that is hardly relevant, as the Geneva Conventions in their present form have been in force since 1948 and were first promulgated in 1868 (the U.S. became a signatory in 1883).

HDHouse said...

1. as ann points out in small print .. the trial isn't going yet..this was a evidentiary hearing (?yes).. and perhaps this was a "trial"trial balloon..to see how far things would fly after the torture aspect was discussed.

of course this was anticipated...kaplan is a good judge and has a solid reputation...so let's go crazy when there is something to go crazy about....and anyone want to call up mr. cheney and ask him about how great torture is..?

Bruce Hayden said...

I'm tired of repeating why this take is wrong -- please google it. Under the Geneva Conventions people who are not POWs are to be treated as civilians -- yes, even spies and saboteurs.

A bit simplistic. Try illegal combatant. The problem is that by illegally fighting according to the Rules of War (i.e. without a uniform, indicia of rank, etc.), they could merge back into the populace - which would endanger the non-fighting public. So, they are excluded from protection either as POWs or civilians.

McCain was in uniform, had indicia of rank, fighting in a recognized military, etc., and so should have been accorded the rights of POWs provided by the Geneva Convention.

TRO said...

"I want to hear President Obama explain his decision and the judge's decision to the American people. He must be capable of doing that."

You mean his teleprompter must be capable of doing that, don't you?

jerryofva said...

Feder:

I work in the five sided zoo.

See John Lynch's post. That your interpretation of the Convention not that of the US government under any administration even this one.

Bob From Ohio said...

As the judge suggested, the government is going to hold him anyway. Legally.

So, why try him? No reason, it just makes the left feel warm and cozy about their virtue.

former law student said...

Being an unlawful combatant refers not to you being in a war, but wearing a recognizable insignia marking you as a combatant.

The term "unlawful combatant" has no international legal significance. What McCain was, was an unprivileged combatant, being neither an insurgent or part of a declared enemy force.

I guess I will have to work a little harder to educate "jerryofva" et al. From North Vietnam's point of view the Vietnam war was a civil war, and fliers like McCain were merely pirates. Although at first uncertain whether Vietnam was an armed international conflict or a civil war, the US eventually took the position Vietnam was an armed international conflict.

http://www.history.army.mil/books/vietnam/law-war/law-04.htm

Vietnam Studies: Law at War Vietnam 1964-1973
by
Major General George S. Prugh

DEPARTMENT OF THE ARMY
WASHINGTON, D.C., 1975


Early in the war there had been some question in the United States command as to whether the struggle against the Viet Cong constituted an armed international conflict as contemplated in Article 2, Geneva Prisoner of War Conventions, or a conflict not of international nature, to which Article 3 would be applicable. With the infusion of large numbers of United States and North Vietnamese combat units and the coming of the Korean, Australian, Thai, and New Zealand contingents of the Free World Military Assistance Forces, any practical doubts as to the international nature of the conflict were resolved. Although North Vietnam made a strong argument that the conflict in Vietnam was essentially an internal domestic struggle, the official position of the United States, stated as early as 1965, and repeated consistently thereafter, was that the hostilities constituted an armed international conflict, that North Vietnam was a belligerent, that the Viet Cong were agents of the government of North Vietnam, and that the Geneva Conventions applied in full. This view was urged upon the government of South Vietnam, which acceded reluctantly, but subsequently came out in full support of the conventions.

Joe said...

(The Crypto Jew)
The term "unlawful combatant" has no international legal significance. What McCain was, was an unprivileged combatant, being neither an insurgent or part of a declared enemy force.



Other than the fact that it’s a term of art used in the 1949 Geneva Conventions….

Unlawful combatants are individuals who directly participate in hostilities without being authorized by governmental authority or under international law to do so. For example, bandits who rob and plunder and civilians who attack a downed airman are unlawful combatants. Unlawful combatants who engage in hostilities violate LOAC and become lawful targets. They may be killed or wounded and, if captured, may be tried as war criminals for their LOAC violations.

So YES, “unlawful combatant” has an international legal significance. You may be a FORMER law student, which might mean you are now a lawyer, but if you are one, I don’t think you practice a lot of International Law, at least as it pertains to Law of Armed Conflict.

jerryofva said...

Former Law Student:

Educate yourself. The only countries that didn't recognize South Vietnam were Communist countries. Just because the North said it's a Civil War doesn't make it so. Nobody else called it a civil war execpt communist sympathizers.

You would agree that since communists murdered 100+ million people that they don't have much moral standing on this issue. (North Vietnam contributed several million people to the total.)

Joe said...

(The Crypto Jew)

From the ABA website:
This distinction may also be found within the structures of international law, particularly the 1949 Geneva Conventions. The Geneva Conventions state that members of armed forces (such as Al Qaeda) qualify for prisoner of war status if they meet four criteria: (1) being commanded by a person responsible for subordinates; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting operations in accordance with the laws and customs of war.

Gee FLS sure looks like it has international legal significance to me.

"Legal combatant" you'll note has NOTHING to do with whether the conflict is a civil or international one, but rather upon the nature of the person involved. So YES, McCain was a legal combatant and was entitled to POW status, and was NOT an "air pirate." Sorry to pop your legal theory bubble.

Cedarford said...

Alex said...
Of course liberals feel the war on terror is a criminal justice matter rather then a WAR. Just execute the motherfucker, no trial needed
=============
America made many stupid official calls in the early days after 9/11.

1. Framing Islam as the Religion of Peace.
2. Both the Left and the Right framing the 9/11 Islamoid attack as a criminal justice matter. Remember Rudy insisting that the WTC Site was a giant "criminal evidence" collecting place that only his "hero cops" should have access to, so "all the trials would have proper evidence and cops testifying?"
3. Calling it a war on terror was stupid. Terrorism is just a tactic, and the enemy is not just the "Evildoers" that were the actual combat team, but those 99.9% of supporters who were not the combat tip of the spear for the WTC attack, the embassy bombings, etc. THere is a reason why all those stupid multi-million dollar criminal rewards for "high value terrorists" are ignored. The Islamoids that surround them do not consider Al Qaeda criminal in nature.
4. Bush was never able to articulate a coherent strategy..accepting the criminal justice system forsome on pure convenience while insisting others in identical circumstances would be tried by the military. Then he got sucked into Iraq and lost any credibility on his "Global War on Terror". He was never able to state the obvious - the enemy is radical Islam and the Saud friends of the Bush family were a big part of radical Islam and needed to be denounced.
5. As bad as Bush, Rudy, the neocons were - their stupidity pales before the ACLU and other enemy rights lovers and the Left allying with Al Qaeda and radical Islamists to better bash the hated Bush.

former law student said...

the Convention would apply to him because he was following the rules- wearing a uniform and bearing arms openly.

Necessary but not sufficient.

Joe said...

(The Crypto Jew)
Necessary but not sufficient.

OH *SIGH* FLS, it is sufficient...you lost own it.

And now back tot he thread..not about McCain and POW status, but the current trial...

Because you're thread jacking AND you're incorrect...can't and won't help you.

GMay said...

fls whoppered: "From North Vietnam's point of view the Vietnam war was a civil war, and fliers like McCain were merely pirates. Although at first uncertain whether Vietnam was an armed international conflict or a civil war, the US eventually took the position Vietnam was an armed international conflict."

Considering the North Vietnamese were accepting assistance from the PRC and USSR since the early 50s and the UN was directly involved in setting the playing field dating back to the mid 50s, This has got to be one of the more titanically ignorant arguments I've seen you post. Congrats!

former law student said...

a term of art used in the 1949 Geneva Conventions

Where?

From the International Review of the Red Cross, March 2003:

The legal situation of
“unlawful/unprivileged combatants”
KNUT DÖRMANN*

Whereas the terms “combatant”, “prisoner of war” and “civilian” are generally used and defined in the treaties of international humanitarian law, the terms “unlawful combatant”, “unprivileged combatant/belligerent” do
not appear in them.

Jason said...

Former law student: The term "unlawful combatant" has no international legal significance.

Dude, you've said some ignorant things on this board before, but this one is right up there.

Why is it you never get tired of embarrassing yourself here is beyond me. If you had a lick of shame, you would have slinked away ages ago.

Joe said...

(The Crypto Jew)
The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII).[1] However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties that deny lawful combatant status for mercenaries and children. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[4] because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".

You are only TECHNICALLY right, they are "privileged" combatants and those to whom no privilege exists...thos would be UNLAWFUL COMBATANTS, FLS....

As to how this applies to the thread, I haven't a clue, and as to McCain you couldn't have been more wrong.

So after being wrong, proven wrong would you care to discuss the thread or just be ignored?

I mean it's your call....we WERE talking aobout the trial and exclusion of evidence in a current case, IIRC.

After your excursion we know that mCain was a LEGAL combatant, not a pirate...now how that applies tot he TOPIC AT HAND?

Orinoco said...

President of Harvard Law Review aught to be able to explain it.

edutcher said...

Freder Frederson said...

First, it wasn't torture until the Democrat Party needed a political ax to grind.

This of course is simply a lie. Under any statutory definition of torture (under U.S. law or international treaties to which we are a signatory), established standards which the U.S. state department used to accuse other countries of torture, and under which we tried and convicted others of war crimes after World War II, what we did (including waterboarding) was torture.


Guess again. Nobody is harmed or even endangered during waterboarding, a point made often. Also, the Demos, including Pelosi Galore, knew this was happening and never said a word until they needed an axe to grind.

former law student said...

were accepting assistance from the PRC and USSR

Did "assistance" include "soldiers"?

And Joe, the ABA's Human Rights magazine is not one of their scholarly journals.

GMay said...

fls: "Did "assistance" include "soldiers"?"

Nope, I can't wait to hear you spin your way out of that one. I notice you conveniently ignored the other rather salient point I made about the U.N.

former law student said...

I didn't want to go down that road but jerryofva posted his own unique (or should it be Yoo-nique) take on Ghailani's eligibility to be a PoW.

I see Joe's reduced to quoting wikipedia, while Jason can't muster up an argument of any kind.

Joe said...

(The Crypto Jew)
Did "assistance" include "soldiers"?



Yes, it did FLS…who do you think manned many of the SAM and Flak sites around North Vietnam, SOVIETS, plus yes there were PRC nationals in Laos and elsewhere….man this is too easy.

I don’t care if it’s “scholarly” or not, it defines the basis for being a POW…and please note it doesn’t have the slightest thing to do with the NATURE of the war, only the nature of the COMBATANT…

The Drill SGT said...

former law student said...
It's been a while since I took evidence -- is a living breathing person really the fruit of the poisonous tree? Abebe was not arrested because Ghailani fingered him, right? Abebe's testimony has not been coerced, right?


nice to see you talking sense, FLS.

There are a couple of interesting points that come out of this case.

course first of all, let's call (as you did) the testimony as coerced, not tortured as the defense likely does.

1. It's fascinating that some folks always claim that "torture never ever works".

Of course it does. That is why folks coerce prisoners in the first place. And of course you can't trust unsupported statements based on coercsion. They can be total BS. so a claim that "I'm innocent" or "john did it, not me" is total BS. But a statement that, "I called my contact at 431-4523" or "the weapons are buried at xx-yy", are fact based things that can be confirmed independently. Thus, in this case the statement leads us to a witness who is able to confirm the suspect's involvement. thus

2. if this were a military tribunal, likely the witness would have been included, but now given the judges ruling, even if they dropped the civilian case and go to a tribunal, it might be tossed out.

3. Great Job Brownie!! This SNAFU was totally predictable by everybody except Holder/Obama and maybe by them if they wanted these cases tossed because of the bad Bushie torture meme

Joe said...

FLS, would you care to QUOTE anything, other than your opinion?

I've advanced EVIDENCE, now you can DISPUTE the evidence, but a breazy "It's from Wikipedia" actually doesn't really count as rebuttal, it's called DISMISSAL, but those are two different concepts.

To sum up, you have NO evidence of your position, and haven't rebutted your critics...now in your world I'm sure this makes you a "victor" most every where else it makes you a laughable loser.

I mean just whip out the relevant portion of the 1949 Conventions demonstrating that McCain was NOT a privileged/legal combatant...it's simple really.

Again you lost....

Produce some PROOF, or just move on...I'm finished with your thread jacking.

Freder Frederson said...

See John Lynch's post. That your interpretation of the Convention not that of the US government under any administration even this one.

I guess you don't consider the Supreme Court part of the U.S. government.

And just because you work at the Pentagon doesn't mean you have anything to do with the law of war or the Geneva Conventions.

What exactly is your job?

Tell me where the Geneva Conventions allows the summary execution (or punishment) of anyone. Because I can show you the exact passage, and the section of the UCMJ, that prohibits it.

You don't know what the hell you are talking about.

jerryofva said...

Former Law student:

Yes, the NVA accepted Russian military personnel. Soviet air defense troops and pilots were actively engaged in assisting the North Vietnamese.

The Vietnam war was not a civil war under any international definition. Just because North Vietnam said it was a Civil War doesn't make it so.

The North Korea says the the Korean War was a Civil War. Does it make it one?

former law student said...

the other rather salient point I made about the U.N.

It seemed too much like the curious incident of the dog in the night-time to deserve a reply.

The Drill SGT said...

former law student said...
were accepting assistance from the PRC and USSR


Yes, Russians and Cubans were involved in torturing US flyers in Hanoi. There is talk of US flyers who had SIOP knowledge "dying in hospital" when in fact they went off to the Gulag.

Russians and Chinese were missile techs, in uniform at SAM sites

I was staioned at a intercept site near Hue (e.g. Phu Bai). We used to intercept Russians on tactical NVA radio nets that DF'd insite South Vietnam. Chinese not so much, but our decoded intercepts talked about Chinese advisors.

Chip Ahoy said...

I'm having the most incredible sense of déjà vu the most incredible sense of déjà vu. What?

One side says, 'enhanced interrogation' ≠ torture. The other side says, waterboarding does indeed = torture, and by the way, that is why we are pure and good an you are sick and evil, besides, as experts in the field of all these techniques we concur universally you never NEVER get good information from torture. Period.

Therefore these prisoners must be let go.

Funny thing is, and I mean really funny because I am a twisted human being cursed with dark humor, is that when returned to their countries of origin they will likely endure interrogation that everybody does agree is unquestionably straight up torture. But I can then smugly preen that my government is above all that, and my apparent fecklessness is in fact strength and in the finest, most rarified, enlightened bien pensant European tradition. So shut up.

I make a popping sound with flat hand and mouth, and I slam shut my ears like an iron gate. I cannot hear another thing you say. This dispute is closed.

Freder Frederson said...

Guess again. Nobody is harmed or even endangered during waterboarding, a point made often.

Do you people even bother to read the statutory definitions of torture before you make such ridiculous arguments?

Of course not.

Nobody is harmed (at least physically) when mock executions are carried out or detainees are told their children or wives will be raped or murdered if they do not cooperate. Yet both are explicitly included in the statutory definition of torture.

Cedarford said...

I see Freder the enemy-lover is back, and his defense of enemy rights is almost as passionate as FLS's.
And just as wrong.

1. The mistake of declaring military-organized terrorism or armed resistance a civilian law offense was shared by Rudy, many Bushies that wanted civilian trials when convenient, military when they were not - as well as by enemy-loving liberals. It is a square peg fit into a round hole and has spillover ramifications for civilian law in other areas if enemy terrorists have "full rights" to US courts...then too, logically, all illegal aliens should as well, and a violent domestic anarchist from a movement of 8 people treated no differently than a combat team coming in with 8 pounds ofanthrax backed by 90 million fellow believers in the destruction of the US.

2. Enemy-lovers like FLS and Freder speak of "Geneva" in hushed tones of reverence. And assume the enemy is free to flout all of it and we are forced as good guys to ignore the reciprocity clauses. They will agonize about the treatment of captured deadly Islamoid combatants and their endless rights while of course never speaking up about the "Islamoid Way" of dealing with captives.
In Korea, right after Geneva was signed, UN troops faced an enemy that took no prisoners. So they in turn offered no quarter to captured enemy. The Chinese protested...denied Chinese massacredor their dear little friends did. The UN forces said BS. The Chinese said the UN lied, but in the future they would ensure that UN forces would have no excuse to "lie" because they would take and give names of POWs. Reciprocity restored, UN soldiers lives were saved by being willing to kill captured Chinese and NORKs until the enemy played by the rules.

3. The old Lefty talking point that no war exists unless it is a formal war declared by Congress in contravention to the UN CHarter.....has been long disposed of by the Supreme Court and Congress itself, save for vexing language the lefties on the Court managed to put in Hamdi. In the AUMFs of the Gulf War, the Afghan strike, then Iraq - Congress debated if the AUMF complied with other laws on spending, combat pay in war zones, POW status, ROE set in the WWII era. They were satisfied the AUMF was constitutional, even the Democrat Left - Especially the Democrat Left at that time, as they knew Blue Bastion NYC, "home of Zionism" to the Islamoids - was a prime target.

Joe said...

(The Crypto Jew)
Nobody is harmed (at least physically) when mock executions are carried out or detainees are told their children or wives will be raped or murdered if they do not cooperate. Yet both are explicitly included in the statutory definition of torture.?



Falls under Permanent PSYCHOLOGICAL damage, rubric…..

Robin said...

Actually the rules created for the military tribunals under the Bush administration were far more generous to the detainees than any military court ever convened during a Democratic administration.

Regardless of the spittle-flecked claims of Frederson

jerryofva said...

feder:

Look moron I specifically said that under Article 1, Section 8 Congress can

"... define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;"

(The Law of Nations refers not only to treaties but customary international law as well)

The fact that Congress may choose to apply the UCMJ to unlawful combatants does not mean they cannot revoke that privilege at anytime and substitute something else. And by the way the UCMJ covers our conduct towards POWs and unlawful combatants. Unlawful combatants don't fall under UCMJ.

It's none of your damn business what I do.

jr565 said...

Freder wrote:
Put me down as a big torture advocate.

I'll add you to my list of despicable human beings who has no idea what the meaning of the Constitution is or what exactly the purpose of our form of government is.


Whatever, sparky. Hey listen, what's your stance on us using waterboarding to train our troops. Is that torture or is that not torture? If not, why not? Can the govt merely say that it's training therefore the same act can be used on our troops that would otherwise be considered torture? Are we allowed to torure our troops?
Do you and other liberals have nightmares every night about the thousands of our soldiers undergoing waterboarding, probably as we speak?
If I don't have a problem with us waterboarding the troops, and don't have a moral qualm about putting our own guys through such harsh treatment for the value of training them, why would I have moral qualms if it was used to stop a ticking time bomb scenario that imght involve the death of americans, OR involve high level Al Qaeda operatiives who definitively KNOW about Al Qaeda (ie there is no question of their guilt or innocence or their knowledge of the organization considering their rank in the organization) and who's information might allow us to further dismantle the Al Qaeda organization (as we capture one guy based on the interrogation, then he spills the beans about other operations, then we capture others based on his info etc etc.).
Also, what's your stance on FDR's treatment of Nazi saboteurs during WWII, and what's your opinion on the Nuremberg Trials (or rather the Nuremberg TRIBUNALS).Obama said we should look to the Nuremberg trials as an example of how we should behave, though obviously he wasn't aware that Nuremberg trials were in fact not trials at all, but Tribunals and at the end of such tribunals, which did not provde traditional due process, and in fact provided even fewer rights than the current tribulans would afford those on trial,executed many germans.

Don Meaker said...

Torture has a definition. The US does not torture. Waterboarding is not torture, by the definition of torture. US servicemen and waterboarded as part of their training. That, by itself is strong evidence that waterboarding is not torture.

luagha said...

On Anwar Al-Walaki:

The US has requested that the government of Yemen (and all other such governments) politely hand over Anwar Al-Walaki for trial. Warrants are out for his arrest, and I am quite sure he has been informed of them. However, Anwar Al-Walaki and his laywers have not seen fit to contact the Department of Justice to arrange an orderly surrender for trial nor have Yemen and other countries been willing to participate in an orderly imprisonment and extradition.

Given that, the state of the US's attempts to bring Anwar Al-Walaki to justice are similar to the old signs you'd see in Western movies: Wanted - Dead Or Alive. It is not an 'assassination' to shoot missiles at his location from a drone or engage in any number of similar activities, nor is the US bound by any sort of contract to attempt to bring him in alive instead of dead at this point, given the difficulties of attempting to do so given his location.

If Anwar Al-Walaki does not want to be the target of such actions, he knows exactly what to do.

Cedarford said...

Everyone knew that civilian trials for enemy terrorists would be a complete fiasco after the Moussaoui debacle (35 million, plus 200 counterterror people tied up for years complying with or disputing discovery in open court demands).
Everybody but Holder, noted law lecturer Obama, and the usual Leftists and Progressive Jewish lawyers in enemy rights advocacy.

So we got civilian trials. Just in time to see Holder and Obama eat crow in the next two years as with case after case, civilian law will be inadequate to the task of trying unlawful enemy combatants. And we will see Obama and Holder forced to argue they must then be held at GITMO, without trial, for several more years while the vaunted civilian lawyers of America explain better how a war run by lawyers will in the end "get it all right". Then explain why they now HAVE to have Gitmo, since the US civilian legal system is a failure in trying to force fit war into a criminal justice context.

We approach the 10 year anniversary with the 9/11 Mastermind KSM dining on duck a la orange and protesting he is only allowed 5 prayer sessions and one portion of ice cream a day. No trial run by civilian lawyers is even close for KSM.

Next Sept 11th, the 10th year anniversary- all the books inc. by Bush will be out, detailing how the Left sabotaged bringing the 9/11 combatant perps to justice. Obama and Holder will have their ACLU minions with them, and explain to the angry public that good justice takes time, even decades of high-paid lawyers arguing with other high paid lawyers on the taxpayer's dime - and meanwhile the Great Barack will ensure KSM gets no extra ice cream.

It's all so laughable.

Freder Frederson said...

It's none of your damn business what I do

Actually it is. You made it your business when you claimed you somehow has professional expertise in this area because you worked at the Pentagon. I want to know if you actually work in the JAG Corps on the Law of War (not for instance in the environmental law section), or maybe you are just a fuels or logistics specialist. Or hell, you might just be a barber, a dishwasher or maybe you serve hot dogs at Ground Zero.

Over 17,0000 people work at the Pentagon. A very tiny minority of them have jobs concerned with worrying about who has what rights under international agreements and the laws of war.

steveintrepid said...

maybe the plan is to have Ghailani out in time to help with the voter-intimidation efforts in Philadelphia on Nov 2nd?

Freder Frederson said...

US servicemen and waterboarded as part of their training. That, by itself is strong evidence that waterboarding is not torture.

Read the statutory definition of torture again, dumbass, and then come back and explain how, even if we were sticking hot pokers up their asses as part of SERE training, we would still not be torturing our U.S. servicemen.

(It is really quite simple--It is the same reason, every member of every NFL team isn't arrested for battery every Sunday)

Baron Zemo said...

I think it is terrible that this poor fellow is on trial.

Perhaps they can give him a nice luxury apartment in one of the new buildings at ground zero.

jamboree said...

Explain what? This is what you "all right thinking people" wanted, isn't it? This is what you cried and moaned about during the Bush years. This is what you took flack about on your Euro vacations.

Well, welcome to exactly what you asked for. No explanation needed.

Baron Zemo said...

Perhaps someone can explain that this gentleman is white.

That might work.

Freder Frederson said...

Everyone knew that civilian trials for enemy terrorists would be a complete fiasco after the Moussaoui debacle

Moussaui was a debacle because he should have never gone to trial. He was a schizophrenic who by all accounts Al Qada recognized was unstable and cut loose. It is a travesty to try a severely mentally ill person in a complex criminal case. He had very little connection with reality.

Cedarford of course, the Nazi he is, would have merely euthanized Moussaui.

I am honored to be criticized by Cedarford as his idea of a just and efficient justice system is that of the Third Reich.

GMay said...

fls tried this one: "I see Joe's reduced to quoting wikipedia..."

Good to see you've picked up on this after quoting it so often yourself.

"It seemed too much like the curious incident of the dog in the night-time to deserve a reply."

Translation: I'm FLS and had no fucking clue what I was talking about.

c3 said...

Oh please don't tell me we will try him; acquit him and then re-inter him. How will this outcome in any way demonstrate we believe
in the rule of law?

I thought show trials went out with the Soviet Union.

jerryofva said...

Freder:

You huff and then puff but you ignore the constitutional provision of Article 1, Section 8.

mrs whatsit said...

Well then, Fred, if you don't think Obama had the power to order the assassination of an American citizen, then where is your outrage? You are beside yourself over waterboarding -- but not a peep about assassination other than to grudgingly acknowledge that it's not okay with you. If you truly believe that it was "Cheney, Bush, Rumsfeld, Yoo, et al. who instigated the torture regime and got us into this mess," then why are you also writing "Why blame Obama and Holder"? They have upped the ante one heck of a lot, one would think, by going from pouring water on the heads of noncitizens to ending the lives of citizens. Why are you compliant with that, especially since you admit you don't approve of it? You're still fulminating over what Bush stopped doing years ago, but can you link me to the sites where you are fulminated with outrage right now over the much worse actions Obama is allowing right now?

Freder Frederson said...

You huff and then puff but you ignore the constitutional provision of Article 1, Section 8.

What is your point? The Congress can't pass laws that violate the constitution and has ratified treaties that outlaw summary executions.

The more you write, the more I think your job at the Pentagon involves a lot of "high and tights".

Cedarford said...

Apparantly under strong interrogation, the man that led the enemy combat team that blew up the Tanzanian sited US Embassy, Ahmed Ghailani, gave up the name of the Islamoid that sold him the TNT for his bomb.

That Islamoid, Tanzanian Hussein Abebe, properly fingered by the interrogation of Ghailani - freely talked. Breaking down the plot for US and Tanzanian authorities in return for lienency (not facing African justice).

The argument appears to be that "interrogation with 3rd degree methods never works, save for when it does...but then it is wrong to use a cooperating witnesses testimony or any other evidence verified as true (like a bomb location) against the Islamoid behind the combat operation. Moreover, the civilian judge seems to be also saying that all confederates named by an Islamoid being interrogated have criminal immunity themselves.

Perhaps the best thing to do is call the Tanzanians, admit the US legal system is a joke. That we have been unable to try a mass killer of Tanzanians after a dozen years. And ask if they want the Tanzanians back to mete out swift and sure and superior to American lawyer-run justice - African justice.

The bombers would have long since been properly disposed of in Tanzania. They don't have the death sentence, but certain types of criminals or lethal military-organized enemies of the state appear to have very short lifespans after conviction.

===============
PS, nice to see enemy lover and acknowledged traitor Freder back in action, sticking up for the idea there was a "persecution" of poor Zacharias Moussaoui. And the poor dear just needed psychological counseling and to be let go. After he was nabbed at his Flight School.

Kirk Parker said...

Freder's back? Dear ghu...

WarnerME said...

Judge Kaplan added that Mr. Ghailani’s status as an “ ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”

Unless they intend to publicly execute any of these ‘enemy combatants’on CNN International, exactly what is the point of the trial .. exactly what is the difference in the outcome if they are found 'guilty' or 'not guilty' ? Judge Kaplan is sending a message that having this trial in his court is a waste of his time. And rightly so.

So this proves trying an ‘enemy combatant’ in civil court is an incredibly stupid idea and should be abandoned immediately and forever.

jr565 said...

Freder wrote:
Read the statutory definition of torture again, dumbass, and then come back and explain how, even if we were sticking hot pokers up their asses as part of SERE training, we would still not be torturing our U.S. servicemen.

Would the army suggest that sticking pokers up the ass of service men did not constitute torture? i.e. One could reasonably make the argument that the army will not torture it's troops, but needs to teach them to withstand interrogation, so will go as far as it can, SHORT OF TORTURE to train it's troops.

What I want to know from you is suppose the army DID use hot pokers on their troops and called it training. would you say it wasn't torture, merely because the army said it was training? I think we'd both agree that even if the army said it was simply training that shoving hot pokers up someones ass would probably be construed as torturous (unless of course they were able to do so without causing any actual harm for example). Extrapolate back then to Waterboarding. Do YOU think we are torturing our troops when we waterboard them even if the army says it is not torture because they call it training?
If it's actual torture, is the army allowed to get away with calling it training?
The question then becomes, are you liberals crying every night about the torture of US troops who are required to be tortured to complete their training? Or is it not torture? Is it not torture because the Army says so or because you don't think it's torture? In your opinion that is.

Ignorance is Bliss said...

Freder Frederson said...

The Congress can't pass laws that violate the constitution...

Glad to see we have another Christine O'Donnell supporter.

Maguro said...

Another Guantanamo thread, another Freder appearance. How exciting.

edutcher said...

Freder/Montagne/Alpha was for torture before he was against it. Doesn't matter if SERE uses it as a resistance technique, doesn't matter if the Demos were for it until they needed a political edge. Doesn't matter that at no point the interrogatee is told he'll be drowned

Until Pelosi Galore or The Zero is for it again, he's against it. Then he'll be for it again.

Big Mike said...

@edutcher, no, because they won't call it torture. Shame on you for even imagining that!

They'll call it "progressive interrogation," the term "enhanced interrogation" having already been demonstrated to be synonymous with torture.

jerryofva said...

Freder:

Once again shows he is a moron.

Article 1, Section 8 authorizes Congress to make rules on how to deal with unlawful combatants, that what piracies mean dope, It doesn't bestow constitutional rights on non-citizens. If the framers believed that non-citizens who engage in "Piracies and violate the Laws on Nations." had Constitutional rights they wouldn't have need this provision. Such persons would covered by the Constitution and the Bill of Rights. The fact that they added this provision shows that unlawful combatants are not afforded Constitutional rights.

What you and idiots like you want to do is give unlawful combatants superior rights to legitimate soldiers. By doing so you put regular members of the armed forces an civilians at risk. the Geneva Conventions are specifically designed to prevent this from happening. That is why the harshest penalties are applied to unlawful combatants.

The Geneva Conventions are based on reciprocity. You don't have to afford Geneva Conventions to those who are not signatories. Guess what? Only governments can be signatories. The Geneva Conventions don't automatically apply to AQ or other terrorist organizations


And dummy, the legal arm of the Department of Defense is not the Judge Advocate General. It is the Office of the General Counsel.

Cedarford said...

Freder somehow thinks SERE school is voluntary. Like people want to frolic in vermin infested jungles and be beaten up and waterboarded.

NO, you don't volunteer. You are assigned. Drill SGT participated in the fun, I believe. I was "in line' to go and none too happy about it if I got one of 3 possible duty assignments I had no real choice in - which I didn't get.

tom swift said...

"Torture has a definition."

It does indeed. Actually, it has many definitions. And discussion of "torture" as policy is absolutely meaningless if definitions are simply assumed. By the most sensible definitions I happen to know, merely making a prisoner uncomfortable is not torture. Making him very uncomfortable is not torture, either. That would seem to include "waterboarding." Physically damaging him - breaking bones, pulling out fingernails, bruising with fists or truncheons, serious starvation (not shaving his beard or cutting his hair) is almost always defined as torture; and so it should be.

Similarly, there are a number of treaties subsumed under the name "Geneva conventions." The US is not a signatory to all of them. There are probably two or three readers of this blog who already know that. The (probably) most important of them codify the concept that "prisoner of war" is not a criminal status. This is the basis for the idea that habeas cannot meaningly apply to POWs. However, for this all to be practical, concepts such as "war crimes" and "lawful combatants" must also be defined, and quite narrowly. The Conventions are online. I don't recommend them to the casual reader; they're very boring. There seem to be excessive amounts of attention paid to weird stuff, such as who is responsible for paying prisoners. This is important because one of the things defining a lawful combatant is that he be a member of the armed forces of a recognized country (ie, a "soldier"), and one of the things distinguishing soldiers from mobs or rebels is that soldiers are paid. Important, but undeniably tedious.

The Drill SGT said...

Cedarford said...
NO, you don't volunteer. You are assigned. Drill SGT participated in the fun, I believe.


yes. as well as a couple of other schools that don't show up in my PRF as what they were.

The Drill SGT said...

waterboarding

stress positions

bamboo cages

some minor wall slamming

sleep deprivation

verbal abuse

dogs

and the ice cold water baths

those were the memorable parts.

Mick said...

He's protecting his Muslim brothers by trying them in a civilian court, where the rules of evidence will ensure that these terrorists, caught in the chaotic theatre of battle, can never be convicted.
Obama is not a "creature of our own" as required by A2S1C5, and is not an eligible Natural Born Citizen.

Allison said...

I was always astonished that people on the Left who were over 19 and should have had both political and historical perspective not only denigrated GWB and his administration for their choices in how to legally prosecute this war on terror, but spoke as if they really didn't believe Feith, Yoo, and the others had spent enormous effort trying to find legal mechanisms to deal with this new threat, a war without clear battlefields.

Sure, 19 yr olds might not have had any perspective to think that way, but people in their 30s-70s, who'd been in law, politics, the military, civil and criminal agencies?

And then I watch how the current administration handles this, and I guess the Left just assumed everyone thinks --not feels!-- as little about these issues as they do.

junyo said...

See, this is why Clinton was a genius. Authorized renditions to torture at the gentle hands of the Mukhabarat, but could with a straight face claim that "We don't torture anyone. I don't know how that guys genitalia got crushed."

Bush's mistake was in-sourcing the torture and actually thinking that making it safer for all involved and getting the info directly, like mattered or something. Further proof of his stupidity.

I find it fascinating that while rending someone limb from limb or cooking off their flesh with a bomb, potentially maiming them for life, that's good, that's fine, that's great. "Rules of war" and all that. The rules, for dispute resolution via organized killing. But make a guy uncomfortable in an effort to potentially avoid some of that, and you're a sonnovabitch. Can't possible have your killing be more efficient or over with quicker, that would make you a monster. And please, incentivize your enemy's flagrant disregard of the rules designed to somewhat mitigate the risk to civilians, by rewarding him for putting them at risk. Yeah, that couldn't possibly have any longterm downsides.

AllenS said...

I went through basic training for the Army in June of 1966. Had Freder done the same, I do think that he would have broken down and confessed to crimes that hadn't been invented yet. What a lightweight.

AST said...

But they practically guaranteed convictions in these cases! If this guy get released, I say he should go live with Eric Holder.

Richard Dolan nailed it. Why try them if you're not going to let them go either way?

The Drill SGT said...

AST said...
But they practically guaranteed convictions in these cases! If this guy get released, I say he should go live with Eric Holder.


C-4 made the point already. If we can't try him, the obvious solution is to extradite this Tanzanian citizen back to Tanzania to stand trial for killing about a hundred Tanzanians, but first offer what evidence we have already collected, regardless of the source.

former law student said...

The Geneva Conventions are based on reciprocity.

Yes, but by now all nations are signatories. But non-signatories could still act according to the Geneva Conventions. So, before all nations signed up, a Contracting Party had the obligation to keep its word at the commencement of hostilities. Failure to act according to the Geneva Conventions would have given the non-signatory an excuse to violate them as well.
(Official Commentary on Common Article 2)

Only governments can be signatories.

Right, so you can't fault Al Qaeda for not being a signatory.

The Geneva Conventions don't automatically apply to AQ or other terrorist organizations

The Geneva Conventions were written before world wide terrorist movements came into being. The closest thing is the treatment of insurgents in a single country under Common Article 3. Alternatively, because all members of Al Qaeda are citizens of one or another Contracting Party, that they should be treated accordingly.

The (probably) most important of them codify the concept that "prisoner of war" is not a criminal status. This is the basis for the idea that habeas cannot meaningly apply to POWs.

Once again, the Geneva Conventions are inclusive and not exclusive. I agree that a civilian criminal is not a prisoner of war. But habeas is a power of the judiciary to review the status of prisoners in both federal and state custody. It is inclusive, not exclusive. Whatever the Guantanamo prisoners were, they were in federal custody.

The basic problem is that the US decided that al Qaeda was a foreign army, then they faulted it for meeting the criteria of a foreign army. But the problem goes away when you realize they're a bunch of thugs, and treat them accordingly.

former law student said...

US servicemen and waterboarded as part of their training. That, by itself is strong evidence that waterboarding is not torture.


Unlike the detainees, the servicemen know that their brothers in arms are administering the water treatment. They know that their training makes them valuable US assets. Both these reassure them that they will come to no permanent harm. Can the servicemen stop the water treatment at any time?

The Drill SGT said...

Can the servicemen stop the water treatment at any time?

yes, and fail.

an AQ guy can stop the water treatment at any time as well. by talking.

Lincolntf said...

"Both these reassure them that they will come to no permanent harm. "

Sadly, though predictably, you are wrong. Death and serious injury are part of military training from Basic Training through Special Forces. Clambering up a slippery cliff in the rain and dark might be called "training", but if you fall off you're just as dead.
Same as sucking in lungfuls of "training" gas and being forced to recite the alphabet before being allowed to run blindly in search of a place to breathe/puke might feel like torture, but it isn't.
Military training is the real deal, and there's no reason we should slack off on our enemies during an actual war. The whole notion is too stupid for words.

Freder Frederson said...

Death and serious injury are part of military training from Basic Training through Special Forces. Clambering up a slippery cliff in the rain and dark might be called "training", but if you fall off you're just as dead.

Actually, they aren't. Death and serious injury during training are very unusual. The military spends a lot of money training its forces (especially for advanced training) and hardly can afford to have people die and seriously injured during training. Any trainer who has a trainee die during one of his or her courses in an avoidable accident is almost certainly going to see his or her career come to a grinding halt.

By far the biggest cause of death and injury among servicemen and women outside of combat zones is the same as it is for most people in their age group--off-duty vehicle accidents. Training deaths are very rare.

Freder Frederson said...

Well then, Fred, if you don't think Obama had the power to order the assassination of an American citizen, then where is your outrage?

I don't think Ann has discussed the subject. If she had, you would see my outrage.

But she would probably have to defend the Obama administration's position. And at the current time she is loathe to say anything good about Obama.

Freder Frederson said...

What you and idiots like you want to do is give unlawful combatants superior rights to legitimate soldiers.

Of course I never said this. A legitimate soldier could not be tried at all under the Geneva Conventions, a spy or saboteur can (but he is entitled to a trial). Congress cannot pass a law that says that spies can be summarily executed on the battlefield because the Geneva Conventions (an international treaty to which we are a party) prohibit this. Likewise, even though the Constitution provides for granting Letters of Marque, subsequent international treaties have banned this practice. Congress no longer could legally grant a Letter of Marque and have a private party become a privateer and go out and raid private shipping (even though the Constitution explicitly allows it).

Freder Frederson said...

A legitimate soldier could not be tried at all under the Geneva Conventions

Of course there are exceptions to this. Soldiers can still be accused of and tried for war crimes, but generally can't be tried for legitimate acts of war.

Lincolntf said...

Freder, having lost one friend to a training accident (lightning strike while standing guard at Marine Corps boot camp) and seen an Army soldier killed while working on a tracked vehicle at night at the Grafenwohr training grounds during war games, I can assure you that fatal mishaps are not nearly as rare as you seem to think.
Obviously car accidents and the like are in a completely different category and have nothing to do with the discussion.

jerryofva said...

My last comment to moron Freder:

Once again you evade the facts when they are inconvenient. Treaties are based on reciprocity and since only nation states can sign treaties the Geneva Convention does not apply to non state actors or transnational groups like Al Qaeda. In the past it has been the policy of the United States to apply Geneva Convention protections to the armed forces of non-signatory powers whether they abide by treaty requirements or not but we are under no obligation to do so. Ironically the last nation that we fought that honored the conventions was Nazi Germany. There was an attempt to extend Geneva Convention protection to “national liberation forces” sometime around 1980. However, the US did not consent to this provision because it would give protection to these terrorist organizations. The protections you keep quoting for terrorists are not applicable to the United States since we didn’t sign up to them.
You are also quite wrong (figures) about customary international law that allows for the summary execution of spies, saboteurs and combatants out of uniform as going out of date in the early 19th Century. Those were rules of engagement for US forces up through at least the Korean War. When the US Army found armed civilians in Germany in 1944-45 they were summarily executed. When Otto Sikorsky’s troops were found wearing American uniforms in the early days of the December 1944 Ardennes Offensive they were summarily executed. Same for North Korean infiltrators caught out of uniform during the Korean War.
You, like every “anti-war” type, aren’t opposed to the war. You just support the other side. Attempts to force the government to treat unlawful combatants as civilian criminals is merely lawfare designed to place restriction on government counter-terrorism activities to enable terrorist attacks. (Ref the recent arrest of so-called anti-war activists who were giving material support to terrorist organizations)

Freder Frederson said...

I can assure you that fatal mishaps are not nearly as rare as you seem to think.

Well, I don't have the figures for the entire military at hand, although I could get them with a little work. But what I do have are the figures for USAFE. USAFE has not had an on-duty fatality and only one permanent disability (loss of a finger) in the last two years.

Calling getting struck by lighting a "training accident" is a bit of a stretch.

And I bet that the military has as a good or better safety record than comparable civilian industries with similar risks(e.g., construction, airline, heavy machinery fabrication and repair).

To imply that the military is cavalier about safety denigrates the professionalism of our military.

Freder Frederson said...
This comment has been removed by the author.
dave said...

"I want to hear President Obama explain his decision and the judge's decision to the American people." It's called "the constitution," you stupid right wing asshole. Try reading it sometime, if you can lay off the jug wine long enough.

chris said...

"Once again you evade the facts when they are inconvenient. Treaties are based on reciprocity and since only nation states can sign treaties the Geneva Convention does not apply to non state actors or transnational groups like Al Qaeda. In the past it has been the policy of the United States to apply Geneva Convention protections to the armed forces of non-signatory powers whether they abide by treaty requirements or not but we are under no obligation to do so."

Wrong.


" Ironically the last nation that we fought that honored the conventions was Nazi Germany. "

Wrong.

"You, like every “anti-war” type, aren’t opposed to the war. You just support the other side. "

You currently holding a rifle?

No? Just a loudmouth coward?

Jum said...

These kinds of setbacks will happen when our government seeks to "define downward" acts of terrorism to the same level of triviality as a charge of "breach of the peace".

Of course the judge suppressed the "defendant's" statement: I've never heard of a case in the last 50 years in an American criminal court in which the prosecution admitted that officers used...let's be kind..."physical coercion" on the defendant, subsequent to which he made a statement, in which the judge DIDN'T supress the statement. What they hell did they think he would say - that there were no permanent scars, so the confession comes in?

They cannot seriously believe that they can actually claim the torture didn't have anything to do with his confession!? "Well, yeah we might have tortured him just a little, but it didn't have anything to do with him making a statement afterward, no way. He just wanted to get it all off his chest...and that wet towel out of his throat."

I'm actually embarrassed for the prosecutors who were forced to make this argument. I'm a little surprised they did, since I think many federal prosecutors would have refused on the moral grounds that they simply didn't believe what they were arguing was true.

I know that's not literally the ethical standard pursuant to the Canon of Ethics and the CPR, but DOJ makes a very big deal (at least with what it calls "the field, meaning the US Attorneys' Offices) about the importance of federal prosecutors maintaining a higher standard of conduct and practice than the minimum required by the respective state codes of professional responsibility

But as is so very often the case with DOJ, that stuff is for public consumption when it comes to the political appointees and career attorneys in "Main Justice". There's one standard required of those "in the field", and an entirely different, more expansive one permitted for the people in Washington, D.C.; an imbalance which leans in their favor when their own conduct is in question.

Cetamua said...

You just can't torture people to extract confessions. President Reagan signed the Convention Against Torture and COngress ratified it. Since then, we are bound to respect that.

No one need a law degree to understand this simple concept.

How come you still don't get it?

Cetamua said...

So, the decision to forgo military trial was a strategic mistake because they would've accepted confessions based on torture.

The only thing it proves is that these Military tribunals are willing to accept evidence that is universally considered illegal.

There is a name for that: kangaroo court.

Jonathan Card said...

FLS,
In your post of 10/6/10 1:09 PM, the source you cited suggested that there was some question about whether the Viet Cong was to be considered a civil war. I could be wrong, but wasn't the Viet Cong an insurgent group within South Vietnam, and not formally a part of the North Vietnamese Army? The way I read your paragraph, there was a question of whether the Viet Cong consisted of a civil war against the South Vietnamese government, not whether the conflict between South Vietnam and North Vietnam was a civil war.

Bill said...

OPPONENTS insist that only military commissions are fit for Mr. Mohammed and his ilk. Yet civilian trials have a clear edge thus far in effectively handling terrorism and national security cases.

Per the NYTimes: "Of 437 cases that have arisen since Sept. 11... 257 have been resolved in court, with 218 of them ending in convictions or guilty pleas. Military commissions, in contrast, have produced a mere four convictions, including those of two men who received short prison terms and were soon set free."