Real shame that he never got to use his “burn down the building in Texas with all the women and children in it” card.
But then he did dare to read your emails, didn’t he?
OH THE HORROR, THE HORROR OF THIS MAN!!!
You keep dodging my actual questions, Minty.
You go through a list of things that you say the Taliban and Al-Qaeda are “not”.
How does that answer my questions? Which were 1)HOW do you know that guy someone picked up IS Al-Qaeda (*or Taliban)??? and 2)How do you know he was not, in addition to being Al-Qaeda also someone who was, for example, an inhabitant of the area who took up arms in response to the invasion? and 3)Who it is that you are having pronounce upon the “testimony” (your word) as to the legal status under the conventions.
WHO if not a tribunal?
IOW, what you seem to be saying is that we can invade any country, anywhere, and round up anyone we find, and claim— the PRESUMPTION is that they are all terrorists not covered by the cCnventions??? And they can only overcome that presumption by offering testimony to prove they are not terrorists and are covered, but they don’t get a shot at offering that testimony bc we are presuming they are not covered.
Uh, yeah.
Tell me Minty -
Which is this guy - Al-Qaeda or Afghani freedom fighter?
[http://news.bbc.co.uk/olmedia/1260000/images/_1260050_opposition150.jpg](Link to pic)
How sure are you? 
Maybe some facts and evidence might help, ya think?
I wonder if anybody could explain for me the meaning of that last sentence?
He gave you the citation, dear. Article 4A begins
And then the list Minty gave follows.
If they fall into one of the categories on that list, they are POWs. If they don’t, they aren’t. Period, end of story. Whether or not they are “terrorists” is another, seperate, question. What treatement they deserve is another, seperate, question; and no-one here is advocating torture.
But according to the GC, they are not POWs.
Plain wrong furt. Until a “competent tribunal” decides, they are POWs. That is what the recent decision has confirmed.
No, you just don’t like the answers.
Given that neither category would be entitled to POW status, the question is legally irrelevant.
Maybe according to the Army Regulations, but not according to the G.C. Doubt first, tribunal second.
And here it is. My hypothetical takes place in WW2 (I am NOT Godwinizing).
The Germans roll in and take France. Obviously, French soldiers would be covered under the G.C. Do I understand that average French citizens that take up arms to repel an invader would NOT be covered under the G.C., only because they are not uniformed and not officially in the French Army?
Such persons would be entitled to POW status under article 4, section A(6): “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.”
But if they quit carrying arms openly and move on to covert guerilla operations, as the actual French Resistance did during WWII, then they’re no longer within the scope of the G.C.
So I brought up the BBQ Pit, and the Blackacre thread is followed by the John Ashcroft Resigns thread; suddenly, it all fell into place :smack: John Ashcroft is Blackacre!! That explains a lot. Whew. :eek:
Gotcha. Thank you.
Minty it seems to me that the language of Article 4 (B) (1) regarding members and former members of the armed force of an occupied territory when taken with the language of Article 4 (A) (1) about the inclusion of militias and volunteers in the armed force would arguably include members of the Taliban in the convention’s protection. What cuts the other way is the convention’s insistence on command structure and badge in Article 4 (A) (2), which says:
Certainly the Taliban had a command structure, certainly they openly carried arms, unless you say that 9/11 was a Taliban operation so far as I know the Taliban operated in accordance with the law and customs of war. Whether they had a distinctive sign recognizable at a distance I don’t know. My gut reaction is that that means some way to designate vehicles and installations and not necessarily a uniform. After all in the field the tendency in modern armed forces is to make the elements of the armed force hard to see at all , let alone recognize, at anything more than point blank distance.
The government’s present position on so-called Enemy Combatants is a new thing. As others have pointed out it has been the US’s policy to treat all prisoners as POWs. This I base on studying and teaching the Law of Land Warfare some 35 years ago although I can’t find my copy of the FM on the topic. The present policy seems to be based political expedience and premised on the WWII German Saboteurs case. Its is pretty well conceded by legal scholars and historians alike that it is a seriously flawed decision, although spies and Saboteurs are traditionally not entitled to protected status, see for example Nathan Hale, Major Andre, Nurse Carvel and Mata Hari.
I certainly agree that the Taliban are a much closer call for POW status than al Qaeda. Where I think they fail is the absence of fixed insignia, the seeming lack of command structure, and (most importantly) the failure to follow the laws and customs of war. I’m certainly willing to listen to evidence on all three, but that’s the conclusion I reached during the conflict three years ago.
Minty, I don’t know about the requirement for a uniform (meaning everybody dresses more or less the same and different than the run of the mill population – polished boots and khaki blouses sort of thing). The convention calls for a “distinctive sign.” I suppose that could be an arm band or a sprig of heather in the bonnet or a turban of no particular color. When dealing with camouflaged battle dress and subdued insignia its hard to tell the turkey hunters from the soldiers.
So far as I know the Taliban observed the laws and customs of war as well as anybody, including the white knight of the Northern Alliance. While the Taliban clearly harbored Osama and the boys and extended them protection we cannot really connect the Taliban as a government or as a military organization to the planning and execution of 9/11. I’m not sure that stuff like denying women access to public facilities and blowing up cultural and historical monuments within your own territory really falls within the ambit of “law and customs.”
Clearly the Taliban had a command structure. It wasn’t like it was a whole bunch of Afghans and foreign volunteers running around with each guy a free lance. They certainly didn’t try to conceal the fact that they were armed – from what I’m told Afghan men carry RPGs around the way we carry pocket knives (or in Texas the way Texan’s are allowed to carry side arms).
It looks to me as if all we have to rely on to exclude the Taliban foot soldiers and leaders from the Convention is the “distinctive sign” requirement. The exclusion of people who other wise qualify for POW treatment based on a fashion statement strikes me as a pretty weak reed to rely on.
More troubling is that under the Convention (entitled to recognition as the law of the land as a treaty obligation of the United States) all the people at Gitmo and in the Iraqi prisons are entitled to POW treatment as a default setting pending determination by a “competent tribunal” that they are not. Here is the Convention language:
Some how our country has decided by administrative fiat that there is no doubt and has by administrative fiat, claimed to be immune from review by the Congress of the Courts that these people are in a class that has previously been used only for spies and saboteurs. That is a little dicey.
Even more dicey is the determination that US citizens and residents can be deprived of the due process of the law and the equal protection of the law and the benefit of Habeas Corpus through an un-reviewable and secret administrative determination that they too are the equivalents of spies and saboteurs. I can only think that these decisions are being made in a room with golden stars painted on the ceiling.
My impression is that the Government of my country is engaged in a massive unlawfulness which will bite us in the ass sooner or later. To the extent Mr. Gonzales has been a party to this, an initiator of this and the torture policy, he may end up becoming the scape goat for doing no more than trying to please his boss. So be it. Somebody has to be accountable.
No Furt, neither you nor Minty are addressing my questions.
Article 4 does provide category listings for POW treatement. As a matte of fact, there are Convetions that apply to others as well who might not have POW status.
Minty is saying that Al-Qaeda members we might have rounded up in Afghanistan are not covere by the COnventions bc Al-Qaeda, as a terrorist organization and not as an organized resistance movment, party to the Conventions, etc. is not covered. (we’ll leave the Taliban out bc I think Spavin has laid out some of those considerations above). SO – how does that answer any of my questions?
How does saying Al-Qaeda members are not covered (in their capacity as Al-Qaeda, members) address anything? Do they all have big tattoos on their heads? HOW are you determining someone IS Al-Qaeda to then determine they are not covered? I think my picture question to Minty is very relevant bc it frames the situation. HOW do you determine in your fight that someone is Al-Qaeda and NOT an inhabitant who took up arms?
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Again — that is not the question. THe question is WHO determines they fall into a POW list (or other section of the coverage under the Conventions? Minty talks about them giving testimony as to their status, and/or giving statements, but despite my repeated requests asking WHO the statements or testimony goes to, if not a tribunal, neither of you have answered. How in the world do you leap to a conclusive determination - That guy over there is NOT COVERED - without a factual review on which to base that determination. The Conventions certainly do not provide some all-emcompassing presumption against covering people taken into custody when you invade a country. If so - show me where. Indeed, they go so far as to say if there is doubt (not reasonable doubt, not material doubt, just doubt) there has to be a hearing.
THere is also no answer to my question as to duplicative status, whereby someone who is Al-Qaeda could also be fighting for the Taliban or could be fighting as an inhabitant taking up arms - so how is that addressed?
When Minty says,
this also frames a bigger part of the issue. The circumstances of capture are extremely likely to be fact dependent without being able to apply the gloss (or veneer) that all those captured are in the same categories.
So- YES INDEED you can re-copy the subsections of Article 4 over and over without addressing the question of WHO makes the determination of application, if not a tribunal. Where the Conventions say that, if there is doubt a tribunal is required ---- they are ACKNOWLEDGING that some who are NOT POWs will get a hearing. Otherwise, they would say what Minty is saying, i.e. - If somone can PROVE THEY ARE COVERED, then they get a hearing. There is no such requirement. And if there were, it would be a pretty stupid catch22, to provide that only those who can already prove they are POWs are entitled to a hearing to determine if they are POWs.
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How do you get to a presumption (found nowhere in the Conventions) that the people you round up when you invade a country are not covered by the Conventions?
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Who is to make the determination of coverage.
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Don’t the Convention’s requirments for a hearing on any doubt already address the situation that those who have NOT already PROVEN they are POWS do get a hearing? How do you justify changing that to a standard where if someone HAS PROVEN they are a POW, then they get a hearing on whether they are a POW?
How do you justify ----- ok, I’ve got the answer to that one. You justify with someone like Ashcroft (who is currently decrying the state of affairs when the judges in a Country won’t just leave the President alone to do whatever he wants) or Gonzales (who also can justify how the President can escape application of the War Crimes Act).
And Furt - it is completely disingenous to say that the question of POW treatment is separate from the question of torture, when the whole reason the question has come up — as set forth in the memos and procedural directions that have been leaked — is that they want to do things to prisoner’s that are not allowed by the Conventions and they want to try to insulate themselves and the President from application of the War Crimes Act. If you look at Gonzales memo, that is really his main concern. His concern with the Conventions is in the context of being able to claim that if the COnventions didn’t apply, then whatever they did that might otherwise subject them to the War Crimes Act falls outside the scope of the act.
If they have evidence that they are not al Qaeda members, then they’re entitled to a tribunal determination of their status under the Geneva Convention. If they have no such evidence, fuck 'em.
Is it not difficult to prove a negative? What evidence could one present showing that they are NOT al Qaeda members?
Testimony that says “I am but a simple peasant who had nothing to do with al Qaeda” will suffice to entitle the prisoner to a tribunal status determination.
“Tesitmony” given to whom?
I guess while we’re at it, explain to me again where they are required to prove they are not Al-Qaeda, instead of our having to prove that they ARE Al-Qaeda.
The “presumption of Al-Qaeda-ness” (or is it Al-Qaedity?) is found … where?