Do you mean to say that your media hasn’t explained the role of the U.S. Constitution (Article 2, Section 2), General Order 20, General Order 100, SCOTUS Decision Ex Parte Vallandigham, SCOTUS Decision Ex Parte Milligan, Article of War 15 and Article 21 of the Uniform Code of Military Justice?
Well I’m shocked!
I am also a bit confused by this but I see no contradiction. Congress (as opposed to the several states) makes the laws defining and punishing certain crimes and the executive is who carries them out. No contradiction there.
What could be argued (if one was a lawyer and knew more about the law) is that the executive order oversteps the executive authority of the President by defining matters of law but this is a complicated subject as it is not a clear boundary. The SCOTUS would have to decide that one.
The United Nations Charter includes Article 51 which states “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations………”
In 1625 Hugo Grotius wrote “The Law of War and Peace.” In this book he argues that not only can a country respond to an attack, it is also allowed to anticipate an attack. When “……the deed may be anticipated…………it be lawful to kill him who is preparing to kill…….” This is known as “anticipatory self-defense.”
In 1758 Emmerich de Vattel reiterated this idea in his book “The Law of Nations” stating that “The safest plan is to prevent evil” and that a nation may “anticipate the other’s design……”
So………there is pretty clear justification in the traditional “law of nations” for responding to an attack, especially when future attacks seem likely.
This is not to imply that everyone agrees with these justifications, but I’m of the opinion that the U.S. had a pretty strong case.
On the other hand, International law pretty much universally condemns targeting civilians. I’d be very interested in hearing Al-Queda’s justification.
You are, of course, absolutely correct. This does involve a major abuse of human rights. The United Nations and many other human rights organizations have condemned the use of child soldiers in no uncertain terms.
Unfortunately, they have very little to say about how nation’s which don’t use child soldiers but who are attacked by them should respond.
The U.S. doesn’t call them Al-Queda operatives, at least not on an official level. It calls them enemy combatants.
Some of them (probably many of them, but I don’t know that) are accused of being Al-Queda operatives.
In the same vein, the government doesn’t call Robert Blake a murderer, but he is accused of murder. I don’t pretend to know what evidence the government has against Robert Blake and I don’t pretend to know what evidence they have against the people being held at Guantanamo. We’ll all find out a lot more when the trials actually begin.
I have no legal problem with the attack on Afghanistan. None. Al Qaeda was being sheltered there by the local Taliban government and the USA asked nicely for the culprits to be turned over and the taliban refused. No problem at all. Iraq is a whole different story though.
So, I have no problem with how those people were taken prisoner. What I have a problem with is the entire “illegal combatant” concept which makes them neither soldiers entitled to the protections of the Geneva Convention nor civilians entitled to the Protection of the US constitutin and other laws of the USA. I have a serious problem with that.
Why are children not subject to international law, why should children be tried in a miltitary tribunal ?
These children were abused by being trained to kill, that does not justify further abuse by the USA.
Inhumane treatment at Guantanamo bay:
Prisoners refused the status of prisoner-of-war. See Geneva Convention.
Prisoners are denied access to lawyers and are under constant interrogation.
Prisoners held in small open air cages.
Here is how the Geneva Convention defines POWs:
Anyone captured fighting in Afghanistan who wasn’t actually a member of the Afghan army would fail to qualify under Part 1.
You could argue that Al-Queda members and such qualify as a militia under Part 2, but they still don’t qualify for POW status unless they meet all of the four listed conditions. If they were combatants and they weren’t in the Afghan army and they fail to meet all four of these conditions then they don’t qualify for POW status. According to the Geneva Convention.
Thanks zigaretten. That is why they are refused POW status.
Problem is the prisoners are also refused legal representation and have not been charged. As the papers say, they are in “legal limbo”.
As you somehow managed to omit.
I will also point out that US forces have been dressing in local garb in both Afghanistan and Iraq so as to better blend in with the locals.
Just to point out the obvious, I’ve “managed to omit” about 98% of the Geneva Convention. Just as you’ve omitted Clauses 3, 4, and 5 above. Why? Because they don’t apply.
Al-Queda has been running training camps in Afghanistan since at least 1994 and first attacked the United States in 1993. That’s at least seven years. You’re going to have a very difficult time convincing me that they “spontaneously” took up arms in 2001 and didn’t have “time to form themselves into regular armed units.” Not to mention the fact that you’re still stuck with that nasty bit about “respect the laws and customs of war.”
Here are some other things I’ve managed to omit:
So……unless I missed the part where Al-Queda accepted the Geneva Convention and has begun adhering to its provisions, then the Geneva Convention itself states that the Geneva Convention doesn’t apply to Al-Queda.
So………….it appears that the Geneva Convention prefers military courts. It isn’t even clear to me if the U.S. (or Britain) could try these people in civilian courts without violating the Geneva Convention (assuming that we were to declare them POWs and apply the Geneva Convention). It comes down to a question of whether the US already has laws which specifically state that US soldiers can be tried in civilian courts for similar offences. (I’ve found one site which says it does and one site which says it doesn’t and neither of those sites was one I’d trust) This is one for the lawyers. I know that US soldiers can be tried in civilian courts for just about any crime as long as only civilians are involved.
I also know that the Uniform Code of Military Justice does specifically state that it has “jurisdiction to try any person who by the law of war is subject to trial by a military tribunal” and jurisdiction over “Prisoners of war in custody of the armed forces.”
I’ll let the legal eagles fight over that one, but either way, it seems clear that the Geneva Convention would always allow trial by military court.
Firstly, my understanding is that this only applies to certain “special forces” units.
Secondly, the Geneva Convention allows them to do this as long as they maintain a “fixed distinctive sign recognizable at a distance.” For instance, the Khmer Rouge used nothing but checked scarves and the Viet Cong used those black “pajama” outfits. In both cases, these “distinctive” signs happened to coincide with normal civilian wear, but the US accepted it.
Thirdly, if US soldiers don’t maintain such a “distinctive sign” and if they are captured under circumstances where they are guilty of “……the feigning of civilian, non-combatant status……” and if that was done for the purpose of “……inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence…….” then the enemy will have every right to punish said US soldiers and the US won’t have any right to complain.
But, since we both know that our enemies in Afghanistan don’t take prisoners and any captured US soldiers are going to be summarily executed, who cares?
Driveby nitpick, of the brief hijack variety:
Objectively, yes. Subjectively, however they had several pressing problems that evened out the score:
*…The first of these was that once the American rebellion spread, its suppression involved large scale continental fighting by British forces at a distance 3000 miles from the home base…The distances involved and the consequent delay in communications not only hampered the strategical direction of the war from London or even from New York, but also exacerbated the logistical problem: “every biscuit, man, and bullet required by the British forces in America had to be transported across 3,000 miles of ocean.” Despite significant inprovements by the British war ministry, the shortages of shipping and the difficulty of procurement were too much. Moreover, colonial society was so decentralized that the capture of a city or large town meant little. Only when regular troops were in occupation of the territory in question could British authority prevail; whenever they were withdrawn, the rebels reasserted themselves over the loyalists. If it had taken 50,000 British soldiers, with substantial colonial support, to conquer French Canada, two decades earlier,how many were needed now to reimpose imperial rule - 150,000, perhaps 250,000? “It is probable,” one historian has argued, "that to restore British authority in America was a problem beyond the power of military means to solve, however perfectly applied.
The second unprecedented difficulty in the realm of strategy was that Britain fought alone, unaided by European partners who would distract the French…The British were now paying for their break with Prussia after 1762, their arrogance toward Spain, their heavy-handed treatment of the shipping of neutral states like Denmark and the United Provinces, and their failure to secure Russian support…
Finally their was the significant fact that for once France had adopted Choiseul’s argument and now resisted the temptation to attack Hanover or to bully the Dutch. The war againt Britain would be fought only overseas, thus dislocating the “continental” from the “maritime” arm of traditional British strategy.*
Yes, but it wasn’t the rebels that mattered in this, it was the French and their allies:
From the mid-1770’s onward, the French naval budget steadily rose; by 1780 it totaled 150 million livres, and by 1782 had reached a staggering 200 million livres. At the time France entered the war, it possessed fiftty-two ships of the line, many of them being larger than their British equivalents, and the number was soon increased to sixty-six. To this could be added the Spanish fleet of fifty-eight ships of the line and, in 1780 a Dutch fleet of not more than twenty effectives. While the Royal Navy remained superior to any one maritime rival ( in 1778 it had sixty-six ships of the line; in 1779, ninety ), it now found itself repeatedly outnumbered. In 1779 it even lost control of the Channel and a Franco-Spanish invasion looked possible; and in the 1781 encounter between Grave’s and de Grasse’s fleets off the Chesapeake, French numerical superiority kept the British forces at bay and thus led to Cornwallis’ surrender at Yorktown and to the effective end of the American campaign.
All above quotes from The Rise and Fall of the Great Powers:* Economic Change and Military Conflict from 1500 to 2000 by Paul Kennedy ( 1987, Random House, Inc. ).
Bottom line, for foreigners, the US President can choose whether enemy combatants would be tried in civil court in the US or in secret trials in Cuba.
There is a difference between the US military courts and the US military tribunals. Military courts holds ordinary jurisdiction alongside states and federal, and is bound by the US Constitution. The tribunals are created based on a Presidential order [executive order by the US President - Bush], and because trials are not held on US soil, they are not bound by the US Consitution.
US citizens are protected by the US Constitution, and can be put before a civilian court or a military court. Enemy combatants, which is the term created for these prisoners, are described in any law whatsoever. The law which they will be tried by is created by the current Administration just recently. POWs are protected by the Geneva Conventions, and can be detained for as long as hostile actions are taking place. But POWs cannot be put on trial, and they shall be released after the fighting is done.
Some quotes:
The trial system in Guantanamo Bay allows a whole series of serious breaches of defendant rights that would mean that they could never come to trial in the US.
First, it allows the wiretapping of attorney-client meetings, although those wiretaps cannot actually be used in evidence. Then there is the fact that the Pentagon “Appointing Authority” - probably US Defence Secretary Donald Rumsfeld - has the ability to remove a judge at any time without giving any reason.’
Among other concerns about the 50-page Final Rule, which was published by the Department of Defence last week for governing the trials, are:
The human rights group and others have also bitterly complained that detainees in Camp Delta and Bagram have suffered severe abuse, including beatings, which probably led to the deaths of two men held at Bagram [Airbase, Afghanistan], whose cause of death was given by U.S. military officials as “homicide” and “blunt force injuries”.
The U.S. has reluctantly admitted that suspected terrorists are “softened up” by beatings and it is an open secret that they are often blindfolded, kept in tiny spaces, tied up in painful positions, sleep-deprived and subjected to continuous loud noise or bright lights.
Al-Marri … now in military detention - was arrested far from any battlefield. He was unarmed, and carried no military gear or other indicators of martial status.
Pentagon officials said that there was evidence that the 6 … had attended “terrorist training camps” and may have been involved in financing al-Qaeda.
“There are a lot of checks and balances in this system,” one Pentagon spokesman told The Times. Asked what those checks and balances were, the official cited the review of the President’s decision by Mr Wolfowitz.
Nearly 700 prisoners from 38 nations detained by the US forces after the war
As well as the 34 prisoners reported to have attempted suicide, more than 80 are said to suffer from psychological problems, mainly depression. 3 have tried to hang themselves using home-made nooses.
Despite the official end of hostilities in Afghanistan, there has been a steady stream of prisoners since the camp opened. In June last year there were 536 detainees at the camp, a figure which has now increased to 680. They range in age from a 13-year-old boy to men in their seventies.
various sources, mostly British daily papers (Times etc)
Interesting to see a lot of media and political pressure being put on the British governement to push for repatriation of the British citizens held in Cuba. As I said earlier, my concern is not particularly where they are tried, but that the recieve a fair trial, and it seems to be becoming clear that the US neither can, nor want to, ensure this.
On the other hand I think that repatriating these people would not be a popular step in the US as it may well lead to them being freed. My impression, and one I think a lot of people feel (no cite, personal opinion!) is that the reason evidence is not being given in open court is that there is no evidence that would stand up. What “evidence” may have been gained in the CIA “interogation” camp in Afghanistan or at Guantanamo itself would not be admissable in a UK court. And it is problematical what crime these people could be charged with -
The Guardian yesterday also had a front page lead on tow businessmen (UK residents, but not citizens) who are held at Guantanamo.
These people were arrested after flying from London to Gambia and don’t seem to have been anywhere near Afghanistan (not until after their arrest anyway). Not really on subject, but makes me wonder what exactly the make up of Guantanamo prisonners is.
Regardless of how abhorrent we may find the Taliban, these men had every fucking right to fight what they perceived as an invasion force into their country, or the country that hosted them as a foreign volunteer soldier.
Why hasn’t the US rounded up every single one of Saddam’s former army, and thrown them in Guantanamo?
Three of the prisoners were between 13-15. Exactly how do you justify claiming a little boy is able to play a significant role in terror? He might be a child soldier (in which case he is the abused, frankly) but what sort of participation can a human being with half a brain cell really imagine this child had in a major terror attack, such as the World Trade Centre? I’ll bet this child barely knows where America or New York is, let alone what or where the WTC were.
Because anyone that’s being rounded up is getting tossed into Abu Ghraib. Saddam’s torture chamber.
Blair is now to put pressure on Bush to send the Brits to teh UK for trial- and he really needs this- he is suffering under the pressure of low personal polls and lack of trust; he really needs to pull this rabbit out of the hat!
"Tony Blair wants President Bush to agree by the middle of next week to repatriate two British terrorist suspects facing a secret US military trial - before his rare address to a joint meeting of the Senate and the House of Representatives in Washington.
Downing Street fears Mr Blair’s visit will be overshadowed by the growing Anglo-US conflict over the treatment of suspects held at Guantanamo Bay, and the fate of two Britons facing trial, Feroz Abbasi and Moazzam Begg.
Plans for Mr Blair to be awarded the congressional gold badge of honour for his loyal support during the Iraq war have also been shelved.
…
With claims in Britain that Britain is not getting enough in return for its loyalty to the US, Mr Blair may be relieved not to receive the honour yet.
Nor may he want to be seen to be feted by the US Congress if he is still struggling to persuade the Bush administration not to send two British citizens for trial - and possible execution - in a secret court.
Mr Blair’s spokesman said yesterday that contacts were continuing between London and Washington to reach a deal on repatriation.
A sticking point is that Downing Street cannot guarantee the men will go to trial in Britain, since the crown prosecution service is wholly independent and must assess the evidence. Another brake is the concern that if Britain did win a concession, other countries might push for them as well."
Note that last paragraph- if they are returned to the UK, they will probably be freed (Habeus Corpus is still respected this side of the pond as we don’t have a Guantanamo to use to bend the rules!).
Let’s see how it runs.
The USA had every right to invade the country which was hosting Al Qaeda, the terrorist organization behind 9/11. No question about that. The question is whether the USA has any obligation and interest in respecting basic human rights and common decency or whether it is going to sink to the level of those it criticises.