# Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 (Introduced in Senate) **URL:** \ **Category:** Great Debates\ **Created:** [April 6, 2010, 3:39pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149 "2010-04-06T15:39:40Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [April 6, 2010, 6:44pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/21 "2010-04-06T18:44:49Z")
> [@Bricker](#): > > He most probably couldn’t do that. Art I, Sec. 6. Their families, then. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [April 6, 2010, 7:01pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/22 "2010-04-06T19:01:06Z")
What are the alternatives? If people are going to be captured during the war on terror something has to be done with them. Should she shoot them, let them go, put them on trial? Shooting them seems worse, letting them go puts our troops lives in danger, and fighting the US military is not a crime. This clears up a legal grey area, and allows congress to set the rules instead of some unelected judge. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 6, 2010, 7:30pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/23 "2010-04-06T19:30:44Z")
> [@Ogre](#): > > I’m not sure about the exact legal definition of “POW”, since I am not a lawyer, but you don’t think anyone subjected to the treatment described in this proposed legislation could be reasonably described as a “prisoner of war”, since the Act describes the conditions under which an individual can be take prisoner and held during a war. A prisoner held during a war, is not necessarily a Geneva “POW.” One thing needed to be a Geneva POW is the war _has_ to be State vs. State. So, prisoners taken during the USA vs. Iraq war can be “POW’s.” The Taliban can be POW’s. Al Qaeda, in most circumstances, cannot. In the War on Terror, there is only one State fighting non-state combatants. This act applies to those State vs. non-state actors. But, just because they would not be Geneva POW’s does not mean they do not have Geneva rights while being detained. Non-POW’s are entitled to (and only to) Article 3 rights of the convention. Article 3 is basically the minimum protection; you can never go below Article 3 with any prisoner. It means you can’t torture them and most provide for some due process. It does allow for indefinite detention, but likely does not provide for what the Supreme Court has called “generational detention.” This act must comply with Art. 3 and is setting up a process that complies with those Art. 3 requirements. But, I don’t think the public is content with only giving detainees Article 3 or at least not with McCain’s/Lieberman’s interpretation of it. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 6, 2010, 8:07pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/24 "2010-04-06T20:07:17Z")
> [@](#): > > …and fighting the US military is not a crime. Fighting the US military as the opposing force in a war is not a crime, but it can get you detained as a prisoner of war. If, however, conditions are such that the captured persons cannot be considered prisoners of war, then they’re committing the crime of murder or attempted murder. Or, if they’re not doing that, and not committing any other crime, then why are we detaining them in the first place? ---
**Author:** ![Crown\_Prince\_of\_Irony](https://avatars.discourse-cdn.com/v4/letter/c/ed655f/32.png) [@Crown\_Prince\_of\_Irony](https://boards.straightdope.com/u/Crown_Prince_of_Irony)\ **Post date:** [April 6, 2010, 8:11pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/25 "2010-04-06T20:11:23Z")
I firmly believe that the “war on terror” should not be considered a war at all. First of all, wars involve an enemy with a specific ideology or goal - a desired end-state, if you will. “Terror” is not an ideology, nor an end-state - terror is a method, a means to an end. If we are to reframe the debate as the “war on radical, violent Islamists”, fine, I’ll give you that (of course, no one wants to do that for fear of seeming politically incorrect). But here’s the problem - in that case, it could be argued that a desired end-state of our current enemy is the destabilization of our society. Destabilization of a free and democratic society begins with the loss of freedom. Hell, even the right-wing demagogues were spewing “they hate our freedom!” in the lead-up to Afghanistan and Iraq. So if the terrorists hate our freedom, why are we giving it away? Why are we willing to suspend due process for anyone, let alone **our own citizens**? Living near Portland, I am reminded of the case of [Brandon Mayfield](http://en.wikipedia.org/wiki/Brandon_Mayfield), a local lawyer (who also happened to be Muslim, and who had done pro bono custody work for one of the “Portland 7”) who was detained as a “material witness” after the Madrid train bombings in '04. Mayfield was detained for 2 weeks, with no charges filed, and no contact with his family The FBI based the detention on a fabricated fingerprint match - Mayfield’s fingerprints happened to come up in a list of several possible partial matches on preliminary analysis, and the FBI hung it on the Muslim and called it good, even though Mayfield hadn’t been to Europe in years. But the Spanish authorities (even though they presumably wanted blood after Madrid) repeatedly told the FBI to double-check their match, even before Mayfield was arrested. The FBI refused to respond, and a couple weeks later, the Spanish simply went public with the actual match, to an Algerian man. After Mayfield was released and the gag order was lifted, the sordid details all came out. After seeing a segment covering it on the local news, I looked at my wife and said “The terrorists are winning.” And if this law goes through, Messrs. McCain, Lieberman, et al, will have handed the terrorist yet another victory. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 6, 2010, 8:30pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/26 "2010-04-06T20:30:43Z")
> [@kenner116](#): > > If this bill passes over a presidential veto, Obama should indefinitely detain all members of Congress who voted for it. I wonder how long that law would last. > [@Bricker](#): > > He most probably couldn’t do that. Art I, Sec. 6. He most certainly could. How would the Congressmen challenge their detention? They won’t have access to counsel. This “enemy combatant” bullshit (apparently now revised to “unprivileged enemy belligerents” is ridiculous. Either they’re prisoners of war, or they’re being detained under suspicion of a civilian crime. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 6, 2010, 8:34pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/27 "2010-04-06T20:34:23Z")
> [@Crown\_Prince\_of\_Irony](#): > > And if this law goes through, Messrs. McCain, Lieberman, et al, will have handed the terrorist yet another victory. Don’t worry about that. It’s campaign-season posturing, nothing more. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 6, 2010, 9:04pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/28 "2010-04-06T21:04:01Z")
I don’t see how this doesn’t violate [_Hamdi v Rumsfeld_.](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld) > [@](#): > > Hamdi v. Rumsfeld, 542 U.S. 507 (2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an “illegal enemy combatant”. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge. As for the part about being held POW w/o trial, keep in mind that is against the Geneva Conventions to put POWs on trial. For this act, though, they need to take out the part that allows US citizens to be held w/o charges. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 6, 2010, 9:46pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/29 "2010-04-06T21:46:29Z")
> [@John\_Mace](#): > > I don’t see how this doesn’t violate [_Hamdi v Rumsfeld_.](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld) I only briefly read the statute, and I think it’s very, very clear that the authors don’t give a shit whether or not it is unconstitutional. There are more than enough problems with it to choke a horse, or a whole stable of legally educated horses. And their mares. > [@John Mace](#): > > As for the part about being held POW w/o trial, keep in mind that is against the Geneva Conventions to put POWs on trial. Ummm, I think you are mistaken. IIRC there is an entire section of the Geneva Convention that deals with trying POWs. [The Conventions](http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68). In part III (Art. 99), entitled Judicial Proceedings, and talks about how you can try POWs. I welcome any correction, of course. > [@John Mace](#): > > For this act, though, they need to take out the part that allows US citizens to be held w/o charges. They also might need to take out the “within the US”, the limitation of funding for trials in any Article 3 court, and define a few of their terms (what is reasonable?). I think that this area of the law (what the country does about people detained in these conflicts) is in serious need of legislation. But this piece of legislation is catastropically bad, both as policy and as a violation of the Constitution. But again, I just perused it. ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [April 6, 2010, 9:55pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/30 "2010-04-06T21:55:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He most certainly could. How would the Congressmen challenge their detention? They won’t have access to counsel. Yes, do tell, Bricker. This is the whole objection: indefinite imprisonment at the whim of the executive, with no access to legal redress. Who could the president NOT imprison with this bill? And if they were “wrongly imprisoned,” how would that wrongful imprisonment ever be challenged? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 6, 2010, 11:49pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/31 "2010-04-06T23:49:29Z")
> [@Hamlet](#): > > I only briefly read the statute, and I think it’s very, very clear that the authors don’t give a shit whether or not it is unconstitutional. There are more than enough problems with it to choke a horse, or a whole stable of legally educated horses. And their mares. I think if they’re trying to score political points by introducing a bill they know won’t pass so they can call the Dems “weak on terror”, it’ll backfire. The right wing nuts would (or should) go nuts over giving Obama the authority to detain US citizens w/o charge. > [@](#): > > Ummm, I think you are mistaken. IIRC there is an entire section of the Geneva Convention that deals with trying POWs. [The Conventions](http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68). In part III (Art. 99), entitled Judicial Proceedings, and talks about how you can try POWs. I welcome any correction, of course. OK. I should’ve been more clear. You can’t try a POW simply for fighting on the other side. You can’t try him, for instance, for shooting at your own soldiers. Holding a POW w/o trial is the normal situation. The OP made it sound like every POW deserved a trial. If you’re talking about a POW raping someone, then that’s a different matter. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 7, 2010, 2:59am UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/32 "2010-04-07T02:59:21Z")
> [@Crown\_Prince\_of\_Irony](#): > > I firmly believe that the “war on terror” should not be considered a war at all. Oh, I think it should. But only if they also give real “war” status to _all_ metaphorical wars, such as the War on Poverty, the War on Cancer, the War on Heart Disease and Sit’n’Sleep’s _War on High Prices_. Larry Miller: _Sorry Irwin, until you sign off on these discounts with free delivery, free setup, and free pillows, I can’t let you up from the table. Now hold still, here comes another pitcher of water!_ Irwin the Accountant: _You’re drowning me, Larry!_ ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 7, 2010, 3:14am UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/33 "2010-04-07T03:14:46Z")
Don’t forget the War on Christmas! ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [April 7, 2010, 8:13am UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/34 "2010-04-07T08:13:28Z")
> [@Chronos](#): > > Fighting the US military as the opposing force in a war is not a crime, but it can get you detained as a prisoner of war. If, however, conditions are such that the captured persons cannot be considered prisoners of war, then they’re committing the crime of murder or attempted murder. Wouldn’t this be based on that country’s laws against murder, and not those of the United States? For that matter, could someone direct me to the law that defines what has to occur for the actions of a soldier to no longer be considered murder? ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [April 7, 2010, 8:32am UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/35 "2010-04-07T08:32:35Z")
> [@Grumman](#): > > For that matter, could someone direct me to the law that defines what has to occur for the actions of a soldier to no longer be considered murder? [Per wiki:](http://en.wikipedia.org/wiki/Combatant#Privileged_combatants) > [@](#): > > **Privileged combatants** > > The following categories of combatants qualify for prisoner-of-war status on capture: > > 1. Members of the armed forces of a Party to the conflict > 2. Members of militias not under the command of the armed forces, with the following traits: > \* that of being commanded by a person responsible for his subordinates; > \* that of having a fixed distinctive sign recognizable at a distance; > \* that of carrying arms openly; > \* that of conducting their operations in accordance with the laws and customs of war. > 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. > 4. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. > > For countries which have signed the “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts” (Protocol I), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 7, 2010, 1:33pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/36 "2010-04-07T13:33:52Z")
> [@Grumman](#): > > Wouldn’t this be based on that country’s laws against murder, and not those of the United States? Well, not necessarily. There are four ways a nation-state can assert jurisdiction over a crime: territorial (it happened in their hood), the status of the suspect (ie., as a national of the prosecuting state), the status of the victim (ie., as a national of the prosecuting state), and universal (ie., the crime is so heinous as to be a danger to the international community at large - war crimes, torture, genocide, etc.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 7, 2010, 2:13pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/37 "2010-04-07T14:13:26Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He most certainly could. How would the Congressmen challenge their detention? They won’t have access to counsel. They can challenge their detention with a habeas. And why won’t they have access to counsel? ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [April 7, 2010, 2:35pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/38 "2010-04-07T14:35:11Z")
> [@CoolHandCox](#): > > A prisoner held during a war, is not necessarily a Geneva “POW.” One thing needed to be a Geneva POW is the war _has_ to be State vs. State. This is not true. Read [Combatant - Wikipedia](http://en.wikipedia.org/wiki/Combatant) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 7, 2010, 2:36pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/39 "2010-04-07T14:36:33Z")
That would not be consistent with “detention without trial”. They won’t have access to counsel because it says they won’t right there in the bill. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [April 7, 2010, 3:12pm UTC](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149/40 "2010-04-07T15:12:42Z")
> [@Lemur866](#): > > This is not true. > > Read [Combatant - Wikipedia](http://en.wikipedia.org/wiki/Combatant) Wiki is correct, but it’s not encompassing of what it takes to be a lawful combatant/POW. It appears to assume the initial requirements: a state vs. state armed conflict, occupation, or declaration of war (they don’t offer cites for the first or second sentences in the link, which is crucial). To be thorough, I should have added occupation and declaration of war, but I didn’t find that relevant when talking about the terrorists this act applies too. Both of those requires States anyways. Here is the part I am referring to. [Article 2](http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68): “_the present Convention shall apply to all cases of [1] declared war **or [2] of any other armed conflict which may arise between two or more of the High Contracting Parties**, even if the state of war is not recognized by one of them_.” [3] The conventions also apply when a country occupies another State. To get to your wiki link part (Article 4), you must first satisfy Article 2. Think of Article 2 and 4 as an upside down funnel; if you satisfy Article 2 and then Article 4 (the small part of the funnel), it opens up all the other hundred or so Articles of the convention (the big part of the funnel). If you do not satisfy Article 2/4, you get Article 3 protections (and _only_ Article 3 protection; the rest of the convention _can’t_ apply). That’s how it reads, however most of the differences between an inter-state war and an intra-state war have merged, _except_ POW and combatant immunity. USA Iraq Army - satisfies Article 2/4. Can be POW. USA Taliban - satisfies Article 2. Debatable whether Taliban satisfies Art. 4. Could be POW if they played by rules of Article 4 (John Walker Lindh argued Taliban satisfied Article 4, but he failed). USA Al Qaeda - can’t satisfy Article 2 because not a high contracting party (State). Can’t even get to Article 4 (your link) and so can never be POW’s. Only get Article 3. [Previous page](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149.md?page=1) [Next page](https://boards.straightdope.com/t/enemy-belligerent-interrogation-detention-and-prosecution-act-of-2010-introduced-in-senate/535149.md?page=3)