Could the creation of different classes of humans allow humans to be treated without any regard for human rights?
Tris
How about a definition of an enemy?
An armed invasion, maybe. I would hesitate to say that attacking somebody automatically makes the person you attack into a “combatant.” They have a right to defend themselves.
An armed invasion, maybe? An occupation? Not really a war. We weren’t attacked by Afghanistan.
Not really, no. At least not in practice. There’s no evidence that anyone in Gitmo had anything to do with 9/11 and the use of terminology like “terror” and “terrorists” – or even worse, “suspected terrorists” – is so vague and subjective as to exclude almost nobody…especially when the White House has decided it has no obligation to either define what a terrorist is or to offer any proof thereof. If we’re going to define the enemy as those who were involved in 9/11, then we need to at least show some probable cause that they were involved before we kidnap them and we need to PROVE their involvement to a jury, in an open court, following the normal rules of evidence within a reasonable amount of time (4 years is not reasonable). If we can’t do that then we need to let them go. If we want to call them unlawful combatants then we need to prove that BEFORE we treat them as such.
Diogenes: If we capture ObL tomorrow, do we need to treat him like a POW per the GC?
And if OLL were found on American soil (perhaps trying to enter at a US airport under an assumed name and with a forged passport), should/could the US treat him as:
(1) a POW?
(2) an unlawful combatant?
(3) an alleged criminal?
(Ignoring, for the moment, any immigration offenses he might be committing).
I’d prefer that we charge him with a crime and grant him all the rights and due process which are due to a charged criminal. He should be treated exactly the same as Timothy McVeigh (only I’d prefer that the death penalty be taken off the table). POW status would be better than “unlawful comabatant” status, thought.
(3)
Thanks – that’s the choice I’d prefer, too. Perhaps 3,000 charges of conspiracy to murder.
The general term for such is Francs-tireur, and before the relevant GC provisions were adopted, the rules of war allowed for executing them:
And if the soliders who took him into custody didn’t properly read him his Miranda rights, you’d be OK with declaring a mistrial and letting him go? But more to the point, are you arguing that we have no legal basis not to afford him all the rights of a domestic criminal trial?
There are lots of reasons not to treat a known al Qaeda operative as a common criminal, and even the SCOTUS decision in *Hamdan *recognized that.
That’s a tricky quesiton, and I don’t know enough about the jurisprudence in this sort of instance to say for sure. Presumably some US court would have jurisdiction over him, and it would be up to the court to decide.
Nitpick: Failure to give the Miranda warning operates only to exclude as evidence the suspect’s statements made under questioning while in custody. In bin Laden’s case, such evidence would hardly be necessary for conviction; we already have so much more on him.
By simply taking for granted the “known” part you are simply bypassing some very important parts of due process.
But without some semblance of due process, this is exactly what’s being established. Once you strip away legal proceedures that govern the difference between soldiers and random people that do bad stuff, both of which have a well defined and mostly agreed upon standard of treatment and due process, you have entered a category where you (the government) can simply make shit up as they go, claim that they have to answer to no one, and do anything to anyone. Thankfully, the courts have by and large started to reign this in.
This isn’t some hypothetical. We’ve almsot certainly picked up innocent people, detained them, tortured them, eventually realized that they weren’t the folks we were looking for, and either basically kicked them out of a truck on the roadside or continued to detain them, unsure of where to go from here. In order to torture someone in a way that we hoped left no marks (since that’s now our definition of what’s torture: as long as there’s no lasting physical evidence of the torture on the body, then it’s not torture) We’ve twisted a man’s arms back so far in order to torture him during an interrogation that something tore inside him, blood spewed out of his mouth, and he died. That’s what happens when you start making shit up as you go as to how things are to be done.
Since neither the GC nor the criminal code allow terrorists to just go on their merry way, I’m much less concerned about terrorists being afforded basic legal protections than I am the creation of a whole bunch of excuses that essentially make things likthe GC and the criminal code optional. The whole point of returning to the GC over the years was to make sure that no country could just, upon the start of a conflict, immediately declare to have found some loophole that renders the GC requirements outdated or irrelevant. Obviously we think that we have good reasons, but don’t you think ANY warring state would claim to have good reasons?
Yeah, Miranda isn’t a get out of jail free card. It doesn’t invalidate the arrest and mean we have to let them go and give them a ten minute head start until we try to chase them down again.
BrainGlutton, you have hit on the group of people that I’m trying to ask about. Francs-tireurs. Or rebels, freedom fighters and revolutionaries.
Scene I - future big European conflict
Pierre’s country has been invaded by a neighboring country. Pierre, neither a past nor a current member of his country’s military, joins the underground movement. He carries a gun, and engages in activities designed to kill, maim and impede the invading army.
Scene II - mythical colonized country
Fred, local resident, and his friends, decide that they no longer wish to be a colony. They organize a rebel army and wage war on the troops of the legitamate colonizing government, trying create an independant country.
In both of these cases, we have a fighter, who is not a member of a internationally acknowledged country’s militia, fighting against an army belonging to a government that has control (legally or not) of the area.
Based on the precedence set by the US’s current actions, if captured, would the fighters risk being labeled as enemy (or illegal enemy) combatants, and being denied both POW and civilian criminal status.
Well, that’s just one of any number of technicalities that can get a criminal off the hook. I meant is an example, but I should have been more clear. We need some new kind of system for this process, which is what is being hashed out in Congress right now. The system needs to be fair to those captured so we don’t just sweep innocent people off the street, but it needs to be pragmatic enough to recognize that in a war (or war-like situation) we are not able to be squeaky clean on the gathering of evidence. It would be nice if we could have Grissom and his *CSI *team on hand in Afghanistan, but that just ain’t the case. (Which is why capturing someone on US territory is different.)
Another scenario – far more hypothetical. The president of the U.S. is visiting South Korea, and is being protected (with the permission of the South Korean government) by CIA agents in civilian clothes. A unit of the North Korean military attacks, several CIA agents shoot back defending the president, but ae captured by the North Koreans. Can North Korea lawfully deal with those agents as “francs-tireurs”? (Ignoring that the US, with its much greater military capability, could respond forcefully to retake the agents or retaliate on the North Koreans for an act of war against the US?)
I like what Lindsey Graham has suggested-- start with the UCMJ and work from there. At least then we know we’re basing the system on something that works. Bush just tried to slap any old thing together and operate outside of oversight from other branches of hte gov’t (although Congress has been noticebaly silent most of the time). I can guarantee you, though, that neither Congress nor Bush’s successor (be he/she Dem or Pub) is going to automatically grant POW status to any and all terror suspects picked up by our armed forces.
Which means the effective end of POW status, since anyone can be a terror suspect. That’s just an excuse to eliminate the rights of anyone we choose, no differently than calling them a witch used to be. We even torture confessions from the accused, just like the good old days.
No. If they prove they deserve to be a POW, they can be.
But I don’t kow why you guys want to make them POWs anyway. There is no surer way to keep them locked up forever than by declaring them POWs. POWs are generally only released at the end of hostilities, which in the case of al Qaeda (or other terror groups) will be-- never.
I think what some people forget is that POWs can be charged with crimes. Just because you’re a soldier doesn’t mean you have the freedom to shoot anyone you like, even if they are a citizen of a country you are at war with.
For instance, if Soldier A shoots a captured enemy soldier B, he has commited a crime. If Country B then captures Soldier A, Soldier A can be tried for murder and executed by Country B, all in accordance with the Geneva Convention.
However, if Soldier A shoots enemy Soldier B while on patrol, even if Soldier B is asleep in his bunk, then Country B captures Soldier A, Soldier A cannot be charged with a crime according to the Geneva Convention, even though he killed Soldier B in cold blood.
And Diogenes, the Geneva Convention doesn’t just apply to “declared wars”. It applies to all armed conflict by a signatory nation. The US is a signatory. How in hell can you argue the Geneva Convention doesn’t apply in Afghanistan?
The Geneva Convention applies in all cases of armed conflict. In WWII the Germans treated captured Allied soldiers as per the Geneva Convention, the Allies treated captured German soldiers as per the Geneva Convention. The Geneva convention applies whether the war is “legal”, or whether Germany attacked France with or without provocation or whether France attacked Germany with or without provocation.
I don’t see how the “illegal war” aspect makes any difference, except to the top brass, if they are ever captured and put on trial in Afghanistan.