It may well be your opinion, but that’s not what the Geneva Convention says. It defines prisoners of war in Article Four. And it doesn’t say “if you capture someone for something you’ve declared a war on, then you’ve got a prisoner of war.”
If you capture a member of an opposing army in a war, then he’s a prisoner of war. The convention even applies to members of an organized resistance in an occupied country… PROVIDED that the resistance meets the following conditions:
[list=a]
[li]that of being commanded by a person responsible for his subordinates; [/li][li]that of having a fixed distinctive sign recognizable at a distance; [/li][li]that of carrying arms openly; [/li][li]that of conducting their operations in accordance with the laws and customs of war[/li][/list]
I would contend that the persons captured and under discussion right now don’t meet those conditions. The Geneva Convention is thus inapplicable.
The burden is on you: you claim they are prisoners of war as defined by Article 4 of the Geneva Convention. So you tell me: into what precise category enuciated by Article 4 do they fall?
Does it have to be all four, or any one of the four? Because I have trouble understanding how a marine in a gully suit could possibly pass muster on #2.
The fourth convention relates to the protection of civilians, unless I am missing something. It’s arguable as to whether they are part of an organized resistance or just common criminals, but I’d lean towards the former. In which case, as repugnant as we may find it to offer certain protections to the peope in our custody.
To quote McCain:
In other words, even if we can find legal ways to do what is being done, we have a higher moral standard to uphold.
Good grief, Bricker. The very fact that detainees have been kept indefinitely in Guantanamo Bay while their legal statis was reviewed is evidence enough that the area is gray. The burden most certainly isn’t on me to demonstrate to what precise category the prisoners belong. I am merely remarking that there is tension between your patent dismissal of the relevance of the Geneva Conventions and the facts as wel know them.
The resistance movement must have a sign. The individual soldier does not have to wear it. The idea is to differentiate between organized, “official” movements and individuals acting alone or in small, unofficial groups.
The fourth category in Article 4 says:
We’re not talking about people in this category.
Not the point I’m addressing. I was rebutting RtFirefly’s comment:
I was pointing out that the Geneva Convention does NOT, in fact, apply to these detainees. I agree that we have should apply a moral standard here, and not torture prisoners to death even though they are NOT prisoners of war, but let em ask you: as long as you agree that my moral standard should control our behavior here, are you willing to have it control our behavior in all matters of public policy? Or is it YOUR moral standard that you’re suggesting should be the yardstick? Or McCain’s? Who is the moral authority from which you are suggesting we derive our rules of conduct? I’m certainly willing to take the job. Are you offering?
“Their legal status” is a much wider area than their status under the Geneva Convention. It’s relatively easier to determine if they fit the defintion of “prisoner of war” for Geneva Convention purposes. Determining what other legal instruments may apply is more of a chore, and is undoubtedly responsible for the long detention times you describe.
In a probably useless attempt to foreclose further hijack of this Harriet Miers thread, allow me to direct the interested reader to a couple of past threads discussing the legal status of various kinds of persons taken into custody by the United States in the various post-9/11 conflicts.
Summing up: someone who takes part in hostilities and is captured is presumed to be a prisoner of war, and entitled to the protections specifically applying to that class, unless and until a competent tribunal rules to the contrary.
But if that should happen, the fundamental guarantees of Article 75 still protect that person. In neither case is torture allowable.
IOW, combatants are supposed to identify themselves as such, by at a minimum carrying arms openly during and just before engaging in an assault. And if they fail to abide by this standard, they forfeit their POW status.
But even then, once a prisoner, such illegal combatant (if you will) is due protections equivalent to those accorded to POWs by the Third Geneva Convention and by Protocol I. That, too, would seem to exclude torture.
minty: FWIW, I checked those threads, but they were more concerned with whether or not certain persons could be detained under the Conventions, rather than how they could be treated while detained. Neither of them made reference to these Articles of Protocol I.
Hopefully the answer to the question raised here is straightforward, and the hijack will be brief. If not, I’ll open a new thread, so that this one can get back to Miers.
What really drives them batty is when we stick flypaper strips on them. “Quit sticking that flypaper to me!” they scream in Arabic. “How can I possibly go over there and blow the infidels up in their homeland if I’m stuck to this cursed flypaper?!”
I cry foul. As a (relatively) long-practicing commercial litigator (8 years), I have plenty of practical experience in interpreting certain issues of constitutional law, but I have absolutely no practical experience with, say, the Bill of Rights, and I’ve only dealt professionally once with that (admittedly unimportant) section of the Constitution known as the “Commerce Clause.”
Now admittedly I, like Bricker, would make a fantastic Associate Justice, but that is largely because I have chosen to continue study of the constitutional issues (and some other nonconstitutional areas of law outside my area of practice) own my own. But it is certainly not my job that has kept me abreast of (most aspects of) the field.
True, and if Ms. Miers has kept up with the field, she can probable hack it. But I wouldn’t feel comfortable if she had to pull out and re-read International Shoe orMiranda after being nominated to figure out what the heck they were about.
I was thinking on this one a bit. At first I was a little irritated at Bricker’s nitpicking on whether or not something is in the Geneva Convention, or Constitution, or wherever. But the more I thought about it, I came to the conclusion: this is more or less what Supreme Court Justices do. They review the law, as it stands, and hold up the reality, and figure out, do the two match. Maybe there are current laws preventing abuses, and maybe there are loopholes which allow the current administration to act like Philistines and all the time be technically correct. The job of the courts is to determine whether or not some issue of law is technically correct, not to be the moral arbiter of our society. In a democratic society it is up to the legislators to write just and effective laws, and for society to elect legislators who will do so, and an executive that will uphold them and appoint judges who will fairly adjudicate.
And yet the Geneva Conventions, being ratified treaties, are the law of the land - even more supreme than the Constitution. There is nothing to decide about their applicability.
Yes, the Geneva Convention is BINDING on us. The question is whether, using the Geneva Convention, the detainees are “prisoners of war” under the Covention’s own definitions.
What, pray tell, is the point of this rambling? It seems to me that torturing and killing inmates, even if those inmates are not “prisoners” under the Geneva convention, goes under the “bad” column. Why the idiotic speculation into the basis for the morality of not torturing or murdering prisoners?
Fine, but so what? Would you, or any other reasonably skilled commercial litigator, be incapable of handling a First Amendment case? Sure, it might take you some extra case law reading to get up to speed, but are you constitutionally incapable of doing it?
And let’s not fall into the fallacy that con law is the Supreme Court’s bread and butter. Sure, it’s where most of the sexy cases lie, but most of the time they’re putzing around with statutory issues, civil procedure, and similar boring crap. Nobody is a master of all those subjects, and it ain’t a requirement for the job. What it takes is the intellectual capacity to study the issues and make a reasoned conclusion. Again, it ain’t rocket science. I don’t particularly care if Ms. Miers has to go read International Shoe the first time a personal jurisdiction case arises, because she’s certainly going to have to go read ERISA and the Tax Code and lord knows what else every time she has to decide a case. Goes with the territory, even if you’ve got the resume of John Roberts.
You can trump state and federal statutory law by treaty, and the treaty power may be exercised in areas where Congress otherwise could not act, but you damn sure can’t override the Constitution by treaty.
Am I the only person who finds it a sad state of affairs when we have Americans honestly looking for loopholes to allow us to torture people, instead of simply drawing a (figurative) line in the sand and saying “Hell no, this is not what our country is about”?