*1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. *
So it looks like the Pentagon is getting worried about torture light which we know has been going on in Gitmo and according to the above, whether the people had POw status or not, should not have been happening.
Oh, and there were those half-dozen or so Nazi sabotuers landed in America by U-boot that were tried (and executed for the most part) as illegal combatants, and they were speficically denied a feull civil trial which decision SCOTUS upheld. They weren’t wearing unifroms, and they come the closest to what Al-Quada is.
None of the detainees in Gunantanamo was detained in flagrante.
Article 3 precedes article 4. The Pentagon intends to apply article 3 to all guantanamo prisoners.
If the US Justice system is able to come up with any evidence of actual war crimes or acts that are triable, fine, but reading the court transcripts so far, the best I have seen is indications of being in someway part of Al Qaeda- not a crime in itself.
Whether or not these detainees are prisoners of war or not (article 4) the Pentagon is intending to implement Article 3 which guarantees:
*the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.*
Which is a great improvement on their treatment so far.
And I’m saying that “suspects” in this case are being circularly defined as nothing more than people who are being detained. It has yet to be explained what they’re suspected of. In a criminal case you need probable cause to arrest a suspect and you have a limited amount of time to charge them with something. Declaring that someone is suspected of being a “terrorist” without specifying a particular crime is no more meaningful than saying they’re suspected of being “criminals.” It’s made even more worse by the idiotic and circular contention that since being in Gitmo makes them “potential terrorists” (a legally meaningless word if you can’t specify a particular terrorist act), that they don’t have to be charged with anything or granted due process.
John, I don’t understand why this is a hard concept to grasp. If there is no way to contest anything, then it doesn’t matter what status someone has. The government can simply assign any status they want to anyone, willy nilly, and there is no one that can contradict them. No due process for “terrorists” = no due process for ANYONE AT ALL, because anyone can be labeled a terrorist if there is no process by which anyone has to establish this claim, ever.
The only other thing I have to say about this issue at this point is this:
The White House confirmed that it has rescinded a February 2002 order maintaining that key aspects of the Geneva Conventions do not apply to foreign terror combatants, such as Al-Qaeda and Taliban fighters.
MEMORANDUM FOR THE VICE PRESIDENT
THS SECRETARY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
CHIEF OF STAFF TO THE PRESIDENT
DIRECTOR or CENTRAL INTELLIGENCE
ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
SUBJECT: Humane Treatment of al Qaeda and Taliban Detainees
Our recent extensive discussions regarding the status
of al Qaeda and Taliban detainees confirm that the application of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva) to the conflict with al Qaeda and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving ‘High Contracting Parties,’ which can only be states. Moreover, it assumes the existence of ‘regular’ armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm – ushered in not by us, but by terrorists – requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
Pursuant to my authority as Commander in Chief and Chief Executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the Attorney General in his letter of February 1, 2002, I hereby determine as follows:
a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.
b. I accept the legal conclusion of the Attorney General and the Department of justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise this authority in this or future conflicts.
c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”
d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war.
Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.
I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces requiring that the detainees be created humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
I hereby direct the Secretary of State to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.*
When we capture these people we look in their wallets and see if the ElQueda membership card and secret decoder ring is there. We gave bonuses to people in Iraq to turn in El Queda soldiers. It was enough to make lies happen. And some to get people they had beefs with.
When we say they are guilty by arrest and dont deserve any decent treatment , we are saying they are less than we are. These lesser humans do not deserve fair treatment or trials. That is an insult to the Arabs and it is not being ignored by them.
Treat people like you would like to be treated in similar circumstances. Be better,dont just continually claim you are.
Indeed Rumsfeld has been quoted as confiming that the detainees would be “treated in a manner creasonably onsistant with the Geneva Convention”
all along even in your favorite very biased source:
. *This week, Mr Rumsfeld said the US was “for the most part” treating its prisoners “in a manner that is reasonably consistent with the Geneva convention”. He then added that the US did not need to do so, because it was dealing with “unlawful combatants” with no rights under the convention. *
The point was that the Administration was saying that we WERE going to give the detainees their protections under the Geneva Conventions, even though we didn’t think we had to. We did allow the IRC full access, and the IRC did come in, make inspections, and make suggestions to the USA of ways to improve how the prisoners were treated, which apparently we fixed at least “a number”. (" *The ICRC regularly discusses its findings concerning Bagram, Guantanamo Bay and Charleston with the military authorities in the camps as well as with the appropriate US government officials in Kabul and Washington. A number of the ICRC’s observations regarding the conditions and treatment of detainees at Bagram and Guantanamo Bay have been addressed. * ")
In other words, other than the USA SAYING that the detainees didn’t legally have those rights, there was NO REAL DIFFERENCE AT ALL.
I will also point out that the **IRC ** disagrees that the detainees are all automatically POW’s under the Geneva Conventions:
"Those persons detained outside of a situation of armed conflict have rights enshrined in a number of other bodies of law, such as international human rights law and relevant provisions of domestic law. The ICRC has adopted a case-by-case approach to qualifying situations arising from the “global war on terror” as an armed conflict or not and believes that the status of detainees should be determined based on the relevant rules. There are currently two broad strands of legal thinking: according to one, detainees in the “global war on terror” are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such. *The ICRC does not share either of these views. It is clear that States may also detain persons for imperative reasons of security. *
While the ICRC welcomes any development that leads to a clarification of the future of the detainees at Guantanamo, it does not believe that there is presently a legal regime that appropriately addresses either the detainees’ status or the future of their detention.
Due to changed factual and legal circumstances since the launching of the “global war on terror”, persons currently in US hands who are not released or tried must be put in another legal framework: i.e. provided an independent and impartial review of whether their continued detention for security reasons is justified.
People suspected of having committed war crimes or any other criminal offence can and should be prosecuted. But these individuals must be afforded essential judicial guarantees such as the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to qualified legal counsel and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment." (Italics mine)
Sure, some interogations were allegedly performed in a manner not consistent with the GC- but the GC is full of vague phrases which can be interpreted in various manners- and interpreting those clause and phrases isn’t for the armchair quarterbacks of the SDMB, it’s for experts in International Law, the Administration, and especially the IRC. Is putting underwear on someones head really “torture”? Nothing that has been proven has risen to the clear atrocities of Saddam’s regime- no blowtorches, hot irons, mass rapes, burning with cigarettes, etc. Admitedly I found some of the practices very questionable, and it *appears * so did the IRC (no official details of what the IRC has asked the USA to stop are published), and it appears that the USA stopped those practices.
So far, it seems that the only thing that the USA has done wrong is not give those detainees a hearing (which can be by Tribunal) which decides on an individual basis what status they have- Potential War Criminal, POW, ( including POW who has commited violations of regs while in custody), or just a plain old civilian possible criminal. The GC sez who have to have such hearings. The IRC isn’t happy that we haven’t. However, the USA appears to be leaning on the loophole that there is no time requirement on when such hearings must be held. Thus, technically, we are still in complaince, although the IRC says (and I agre) that just because there is no time limit, it doesn’t mean we can hold them indefinately without said hearing.
But- pjen- it’s all very nice that you, as a complet amature can read the GC. I can read the US Constituion, too. But that doesn’t mean I am an expert on Constitutional Law, and can interpret the Constitution. No are you capable of interpreting the GC. The IRC- those ONLY dudes in the world who are in charge of enforcing the GC- interprets it differently than you do. Some of the detainees at Gitmo may be POW’s- others may not be. "There are currently two broad strands of legal thinking: according to one, detainees in the “global war on terror” are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such. *The ICRC does not share either of these views. It is clear that States may also detain persons for imperative reasons of security. * " They are NOT all automatically POW’s. You are wrong. The damn IRC even sez so.
Nowhere in this thread have I said that they are POWs. All I have said is that the GC applies to them all, including Articles 3 and 4. Shrub Agrees. The Pentagon agrees.
Once competent tribunals have been held to decide whether some of the people are not POWs then we can start your argument.
The GC is quite clear that until this decision has been made, the detainees should be treated as POWs.
You have hit the point. The use of the term war was not meant to be metaphorical to the neocons. It was meant in all its legalese glory, which then entitled ,in his opinion, Bush to assume great powers. He has done so and expanded them to new and exciting places.
A war ends. This one wont. Therefore we have a permanently expanded executive branch. We have a populous under war powers forever.
Do you picture a day when an AlQueda representative could sit down and sign a binding peace treaty. They represent nobody have no official organization. Have no property , nothing to cede. to cede.
In my opinion .not a war.
I don’t think anyone here has said that people captured in the US who are here on a mission of sabotage under the conditions you described should get a civilian trial.
However, many of the detainees were taken in another country by US forces who were there in accordance with the Bush doctrine of invading on suspicion. That is a far different scenario than you used and I question the application of the precedent to it.
