I have no problem with denying the detainees big-screen TV’s. But I also have no problem with denying them any number of Geneva Convention provisions, since they’re not covered by the Convention. My point is that they are not housed in facilities comparable to the detaining soldiers, and that would be–unheated water and all–a violation of the GC, if they were entitled to it.
…and around we go. Our starting point was how to distinguish between AQ, Taleban and civilians. US Army regs state that this is decided in a three-officer tribunal. A preliminary determination is not mentioned anywhere in the regulations, and it is clear that section1-5 (2) is being ignored here - how can the word “until” possibly be made sense of under your definition?
Where you got this from is a mystery. Under my theory, everyone who is captured is given provisional PoW status. If there is doubt about whether this applies, a competent three officer tribunal is convened having the authority to change this to some other legal status, one of RP, CI or Innocent Civilian. This is undeniably what the US Army regs. specify, which also explains why the term “unlawful/illegal combatant” appears nowhere in these regulations.
Thank you, minty for inspiring me to dig out the relevant documentation here and enjoining a lively and well informed debate - I’m afraid I must now step off the carousel to go on holiday.
Heh heh, an open goal yawns. As a gentleman and hopefully a friend, I’ll just say “Venice, thanks. Back in a week!”
I’ve explained those regs multiple times, Meat. Your interpretation is completely inconsistent with the plain language of the regs, which provide for a tribunal only if “doubt arises” as to the individual prisoner’s status or the prisoner claims POW status (and it’s absurd to have a prisoner claim POW status if he’s automatically treated as a POW, as your model wrongly asserts). Neither criteria is apparent in the Guantanamo detainees. There is no automatic tribunal for everyone to determine what they are–just “competent authority,” a term that is used various times throughout the regulations without any apparent equivalence to a section 1-6 tribunal.
And more important yet, the regs are not the Geneva Convention, which is what you initially claimed the US was violating. Put those guys within Article 4, then you’ve got something. But the only way you can get them in there is by incorrectly claiming that the Taliban were a Party to the Convention. They were not, and their soldiers were not “regular armed forces” either.
Now, are we done here?
We agree to disagree, I feel. It is for our audience to decide for themselves whose interpretation makes most sense.
And now I really do have to go - my carriage awaits!
Carriage? That’s a long ride to Venice. You might want to look into an airplane or something instead. 
It is not apparent to you that there is doubt as to the classification of the detainees? It is pretty apparent to me that there is a lot of controversy. It is quite apparent to me that the USA is facing criticism from every corner and evey angle on this but I guess you are not aware of this.
And the notion that the tribunals which are supposed to adjudicate the claim of each person are just replaced by a previous blanket statement by the government that they are all to be classified somehow is just pathetic. It is no different from saying we do not need criminal courts because the people who the police arrest are all guilty because if they were not guilty the police would not arrest them. Stalin would be proud.
No. There is no factual or legal “doubt” that the Taliban and al Qaeda are not Parties to the Geneva Convention, and there is no factual doubt that I am aware of that any of the prisoners was a member of any “regular armed forces.” None of the other Article 4 categories even comes close to applying.
Criticism and controversy are not Article 4 “doubt.” This is especially so given that essentially none of the voices condemning the denial of POW status ever bothers to refer to the actual text of Article 4 (though ISTR that Human Rights Watch issued something purporting to show that the Taliban, but not al Qaeda, were covered by Article 4).
I agree. Something must be done to resolve the status of these prisoners. It’s just that it doesn’t have anything to do with the Geneva Convention.
Minty- I never said that the detainees are being housed exactly like our troops are. However, who says they have to be? You quote one line of one treaty of hundreds. And, being a lawyer-type, you know that case or common law is important too, not just the Code. Even if you are a member of the Bar in Texas-(and thus I’ll concede your expertise there) you are not such even across the border into another State, much less are you admitted before the Hague, or in Geneva. Nor have you personally inspected the facilities. By your admission, no one would expect us to give the detainees a “big screen TV”, thus it would appear there are mitigating circumstances and case law that basicly allow any “humane” quarters.
Thus, the ICRC- the ONLY dudes who are trained, authorized & delegated under the Geneva Convention to make such a call- have not said so. Yes, true, their policy is to keep some such complaints confidential, but if the violation is blatant- they do speak up. In fact, they already did. In Jan 2002 the ICRC did request the Allies to “improve conditions for the detainees”- regarding the “size & exposed nature of detention cells” and the USA complied.
Having you- a TEXAS attorney not authorized, delegated or trained- tell the ICRC inspectors (who are there on site 24 hours a day) that you know more about the GC and our “violations” than they do is- hubris indeed.
Note that again, altho the ICR does keep minor issues confidential- right there on their web page they said: “The ICRC thinks that the legal status of each internee needs to be clarified on an individual basis, and has repeatedly urged the US to do so”. And, if the USA was blatantly keeping the detainees in conditions in violation of the GC, the ICRC can & has made official complaints to the Members, and also complaints can be filed at the Hague.
Come on Minty- you ARE a lawyer. You know damn well that you would not think of giving legal advice to a client in another nation after a curosory reading of one Code. If a client came to you and said he was just indicted for War Crimes in the Hague, would you take his case?
The Geneva Bloody Convention says POWs (which these guys are not) have to be “quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area” that’s who says it. Article 25. Check it out.
Yes, I quoted the relevant line of the relevant treaty. And there’s only one treaty specifically on the treatment of POWs.
Good. Prove something like that applies here and modifies the binding obligations of the GC relative to the quartering of POWs. Otherwise, you’re just making up a lame excuse.
That’s because the detainees are not POWs. If they were, they would be entitled to " conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area
thus it would appear there are mitigating circumstances and case law that basicly allow any “humane” quarters.
[/quote]
I repeat: you’re just making up a lame excuse. Show me binding legal authority that modifies the requirement of Article 25. Or give it up.
Unsurprisingly, you are completely incorrect about this. The Convention does not “authorize and delegate” the Red Cross or anybody else to make determinations about compliance with the terms of the Convention. Seriously. Read the treaty.
So your contention is that this single, generic statement indicates that further silence, in accord with their policy of silence, means that everything about Gitmo is perfectly up to GC standards? Seriously? That’s crazy, man.
I don’t know more than they do. But I most certainly know more than you do, and that’s all it takes for purposes of this discussion.
Only if his check clears the bank.