John Ashcroft Resigns.

The BBQ Pit
161

Why is it such a big secret how you “have knowledge of” Gonzales, Minty? Did you work together at V & E or something — it sounds so silly to claim lots of personal insight about him, but not be willing to say how it was acquired.

In any event, I don’t follow some of the arguments that have been made.

For example, you say:

I would very much disagree. His opinion clearly shows he DOES believe that there should be a consideration of whether there are underlying factst that give rise to doubts about the status. He says that consideration should be done by a competent tribunal. Why should it be done otherwise? How is it erroneous to claim it should be done by a competent tribunal? SHould we ask Jim when he get’s a break from the checkout counter at the Suds and DUds to decide? Isn’t something like determining the LEGAL STATUS of a person under a LEGAL DOCUMENT such as the Geneva conventions just right up the alley of things a competent tribunal should do?

As a matter of fact, it seems the approach fits with what you outlined.

Testimony - doesn’t that sound like something you would give before a tribunal? A determination of the coverage extended by the Geneva Convention - again, doesn’t that sound like something a tribunal would be pretty good at? If not - WHO is it that you are saying should take the testimony and make the legal status determination under requisites of the Conventions?

Hmmmmm, how about all the other in-between stuff? I hear a lot about “uniform” requirements under the Conventions, but that is not really the standard, is it? Where do you get a uniform requirement?

My understanding is that the Conventions do, INDEED, cover a heck of a lot of people other than uniformed soldiers (besides - he’s a driver, he’s got to have those nifty leather boots and little cap, right?) ANd they have coverage that is not POW coverage too.
The Conventions cover members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces and do so without reference to a uniform. They cover people who spontaneously take up arms bc their home or homeland has been invaded. No uniform requirement. If people are fighting for the Taliban as members of its armed forces and it is not a “failed government” (and I don’t think there has been a legal determination that it is or was a failed govt and I don’t see our Administration even trying to float that argument b4 a tribunal to get a definitive answer on that so that we can apply that to the status of those fighting for the Taliban) they are covered.

There is a limitation on the coverage of members of an organized resistance, in that they are required to meet several criteria including having a “fixed distinctive sign” etc. Still, not a uniform per se requirement.

They cover “Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces”

They cover, "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. "

If lawyers quibble over what the required showings might be, then how do we turn over the determination to anything LESS than a tribunal? And besides, why does it matter? What is the shocking horror of, after people have been held a bit, having a hearing to make sure we got the right guys? I am pretty sure I read reports that, prior to the Rasul decision, in the quicky hearings that they set up at GITMO to make it look, factually, as if they were following some kind of competent procedures, they determined about 20 or so of the people they had held for almost two years — OOOPS! ----- weren’t enemy combatants after all.

To be honest, I think a competent tribunal helps “the other way” too. For example, one of the “low risk” combatants released pretty much bluffed his way through the whole GITMO detention with a faked Afghani ID. WHY is it that faked memos about Bush get spotted in a flash and a heartbeat, but faked docs like the Niger docs and a Fake ID evade the best efforts of our best intelligence resources? :confused:

BTW - yes, I do think they should fry bastards, subject, however, to a determination of bastardy. Frying non-bastards is just not as much fun.
IMO.

Etc.

So they can and do cover a lot of people other than uniformed soldiers.

162

maryP, pay the damn fee and join us already. :slight_smile:

163

I bet you say that to everyone with typos and run on sentences. :stuck_out_tongue:

I gues I don’t get to edit unless I join. :smack:

164

Sorry, none of your business.

You ignore my point, which is that a prisoner is only entitled to a tribunal status determination under the G.C. “should doubt arise” as to his status as a POW. Tribunal determinations are not a right granted by the Convention to all prisoners, regardless of “doubt.”

As for the rest of your post, I have long ago tired of repeating the same legal analysis regarding the G.C. May I suggest that you search for the old threads yourself?

165

Nah, even us payin’ members don’t get to edit. Too many people go back and try to erase something inflamatory that they said, while denying they ever said it.

166

Psst… Guests can’t use the search engine.

Enjoy,
Steven

167

Because it’s not too hard to imagine how Minty could be put in some very awkward situations if people knew the connection between his online and IRL persona. He gets away with it – whereas others might not – because he has built up a great deal of credibility over the last five years.

168

All the more reason to tithe unto Cecil! :slight_smile:

Can’t find most of 'em on a quick search, but here’s one old thread from GQ: http://boards.straightdope.com/sdmb/showthread.php?t=169862

169

[Justice Department Goon]

We hear youse been talkin’ online ‘bout Al Gonzales. Sayin’ things what ought not to be said. We’re thinkin’ maybe you want a visit from the IRS this year?

[/JDG]

170

:smiley: :smiley: :smiley:

So you DO want to make it everyone’s business (by posting it on a public bb) to know that You Have Personal Knowledge But it’s NOT anyone’s business to ask HOW ? :dubious:

Okeydokey.

This is a wild guess, but I bet you’re not really sorry to tell me it’s none of my business.

Nope. I’m not ignoring, I promise. I will say off the cuff that the intent was probably more to allow people to claim they were not combatants at all, rather than to claim that they ARE pows Still, I am saying that, when you invade a country and there are people there fighting, it is pretty much spot on that they should have a presumption of being prisoners of war when you take them. It is concomittant with OUR status as invaders in the country. Explain to me the situations wherein we invade a country, have people who shoot back, pick them up and yet ---- no doubt arises as to their status? Really???

It is a standard of “should doubt arise” and not even should REASONABLE doubt. It’s any doubt. BTW - it would NOT be mutually exclusive to be both a terrorist and a person covered by the Conventions, depending on the circumstances of the capture. Just like it is not mutually exclusive to be both a criminal and a POW.

So — I’m open to your concept, but I don’t see a factual or hypothetical argument, just a statement of a concept. HOw is it that we (i) go into a country - a country where very few of our soldiers will be able to communicate competently with the non-Americans they encounter, (ii) go in as invaders at war (I do believe we called it the War in Afghanistan) , and (iii) round up people who we aer saying are COMBATANTSm but somehowe there would not be any doubt as to wehtehr they do or do not fall under the Conventions?

(Remembering, again, that there are Conventions coverages that apply even beyond POW applications).

It’s your argument - so make it.

NOW - on the other hand, if you want to tell me about someone picked up in the United States — not resulting from our invasion of our own country — then sure, I’d say there is no presumption of application of the Geneva Conventions. In general, though, the circumstances of invading a country pretty much tilt the tables to a determination that people shooting back at us are covered.

I think you are ignoring your own arguments, as to testimony and determination of the application of the Conventions. And my specific question to you, which was WHO if not a tribunal?

?

I’ve seen some of it. It didn’t tremendously persuade me as you can probably tell. I also think it would be a pretty easy thing for the Administration to float the Failed State argument and get it determined one way or the other. It is not something that is incapable of resolution. I also didn’t see how the duplicative status was addressed. For example, someone who is Al-Qaeda could also be someone who was a native inhabitant of the country who took up arms in response to the invasion.

171

Thanks for the link - that as not the discussion that I had found.

IMO, it is still a situtaion where

  1. We were engaged in a level of hositlities that we commonly reference as War and they are definitly the type and kind of hostilities meant to be covered (on that point, I think, we agree, since I believe we both agree that a formal declaration of war is no prerequisite to applicaton).

  2. Whether we recognized the Taliban or not, there were other legitimate powers that did recognize and deal with them, they were in active and actual control of the country and they were in control under a claim of right. So I think we need to actually have the government make a solid claim, in front of a competent tribunal, that the Taliban is not or could not or should not be recognized or should be treated as a failed State. Absent that, then I think we have to give a presumption to the fighter for the entity in control of a country, under a claim of right, that they are covered by the conventions. I believe that several provisions you already discussed in your link make that point.

  3. Whether we believe that different aspects should apply to Al-Qaeda, you would stiff first need to invoke a tribunal, IMO. This is, in large part, because if you are going to claim a different treatment for Al-Qaeda members, you need to first establish that they ARE Al-Qaeda. How is that done without a tribunal/hearing?

  4. Even if someone is Al-Qaeda, the circumstances of their capture may also require application of the Conventions. For example, if an Al-Qaeda member is also a resident/inhabitant and their homelands/home are under fire, then they might well be covered. I don’t think someone loses “homeland defense” coverage of the Conventions just bc they are also a bad person and would be a criminal if taken into custody through means other than invading their country.
    Really - I have no problem with saying that Al-Qaeda operatives might not be subject to the Conventions. We are likely in the same place there. But my huge difference is #3 above. If we invade a country and want to apply different standards to it’s inhabitants - POW status for warlord fighters or civilians taking up arms to protect, etc. vs. non-POW status for Al-Qaeda, then I think it is incumbent upon us to have a procedural application to determine whether someone is Al-Qaeda or not. IOW, IF we are invading and our rationale for is that Al-Qaeda fighters are “different” than native defenders of their homeland, then I think it is incumbent upon us to show that someone falls into that “different” category before refusing to apply the Conventions.

I don’t think anyone would argue that absolutely EVERY Afghani who took up arms is NOT COVERED. Do they? The argument that only Al-Qaeda (or Al-Qaeda and Taliban) fighters are exempt (and not all Afghanis) presupposes a prior determination that they ARE Al-Qaeda (or Taliban).

It puts the cart before the horse to say we don’t need a tribunal bc they haven’t shown they should be POWS. How can they? We are the ones carving out a “special class” for Al-Qaeda. It is incredibly difficult to “prove the negative” i.e., to prove they are NOT Al-Qaeda. So the burden should be to show that they are Al-Qaeda and therefor suceptible of being put in a special class, different from other Afghani fighters. .

172

As indeed you ought. That is what the Conventions require. One way to look at Convention protections is to consider them extending to detained persons, as the default until a competent tribunal determines otherwise.

As you rightly point out the requisite test is “any doubt.” No other phrase should be in quotation marks.

This test sets a very low threshold for obligating the detaining party to extend Convention protections. As a practical matter, the only way the US can discharge that obligation is by holding a tribunal in each case where is argues the Convention protections to not apply.

173

::shrug::

Simple. Geneva Convention, article 4(A). The Taliban and al Qaeda are not: [ol]
[li]Members of the armed forces of a “Party” to the conflict, since the Taliban and al Qaeda are not “High Contracting Parties” to the Geneva Convention. Although Afghanistan was a Party to the G.C., the internationally-recognized government of Afghanistan was the Northern Alliance. Only our dearly-beloved “allies” Pakistan and Saudi Arabia recognized the Taliban. Literally every other nation on earth denied their authority over the Afghan nation.[/li][li]Members of other militias or volunteer corps belonging to a Party to the conflict and operating in or outside their own territor that were (a) commanded by a person responsible for his subordinates; (b) wore fixed distinctive signs recognizable at a distance; (c) carried arms openly; and (d) conducted their operations in accordance with the laws and customs of war. They didn’t belong to a “Party,” and they damn sure didn’t fulfill (a)-(d).[/li][li]Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. Al Qaeda in no way resemble “regular armed forces.” And while it’s a closer question for thge Taliban, those guys were not exactly known for any of the hallmarks of “regular armed forces,” such as a recognizable command structure, fixed insignia, and adherence to the laws and customs of war. Buncha fuckin’ barbarians, really, not “regular armed forces.”[/li][li]Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the Geneval Convention’s model. No need to discuss this one, I suppose.[/li][li]Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. Not likely. Next.[/li][li] 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. Nothing spontaneous about al Qaeda and the Taliban, and they damn sure didn’t respect the laws and customs of war.[/ol]And since they’re not any of the above, they’re not “Prisoners of war, in the sense of the present Convention.”[/li]
Everything clear now? Good, glad we could wrap that up.

174

In many ways, this is correct. But there is a threshhold, and it is encumbent upon the prisoner and his advocates to meet that threshhold.

Nonsense. If a prisoner asserts he is a POW, all you need to do is ask him why. If he offers a reason that is legally capable of establishing POW status, he gets a tribunal determination of his status. If he claims it’s because the Taliban were the lawful government of Afganistan and he was a member of its regular armed forces, he does not get a tribunal because that would not get him within any definition in article 4.

175

The leading case on the matter disagrees with Ashcroft, Gonzales & for that matter Minty Green.

176

The “leading case,” as you put it, has all the precedential value of a fart in a hurricane. Come talk to me after the D.C. Circuit rules.

177

Merely opinion. The alternative is certainly arguable with sufficient force to cross the “any doubt” threshold.

178

And yet the Justice Dept has halted all Military Commissions.

179

Ah, but the question of whether the Taliban were the lawful government of Afghanistan, and therefore a “Party” to the Convention, is a question of law, not a question of fact. You don’t need to stick John Q. Taliban in front of a tribunal to determine a question of law–there’s no evidence for him to offer on the issue.

180

As well they should, given that the U.S. government is a party to Judge Robertson’s judgment and bound by his decision. For the moment. Like I said, come talk to me when the D.C. Circuit rules. They may well decide that the proposed commissions are not legal, but I am quite confident it won’t be because of the Geneva Convention.