War, like torture, transcends definition. And yet, it’s defined.
The ICRC (click on PDF) has stated a few factors to determine when a legal battlefield (called ‘armed conflict’) exists:
So, armed conflict vs. law enforcement depends on (1) are the rebels organized? (2) sporadic crime or systematic, (3) Do the rebels control territory?, and (4) What is the Gov’t response?
Al Qaeda is organized and has a command structure, even if it appears poorly implemented. Their “crimes” are systematic (US symbolic targets/dates with the goal of removing them from the Middle East). Not much on territory, maybe pockets. Government response is massive.
It could go either way, but it’s not like their the Bloods or Crips. Also, a law can’t define an armed conflict. It’s solely limited to a de facto situation; it must exist in real life (when it’s against a non-state).
When an armed conflict exists, the law of war is in effect (law of war = law of armed conflict = international humanitarian law).
So we’re *never *going to know why TWAT is a war and not a law-enforcement operation? Shitfire, are we ever even going to be able to define who the enemy is?
It is a war because Congress authorized it. The President is treating it as one. The Supreme Court said that the detainees before them captured in it were caught in an armed conflict.
So, authorized as war, treated as war, and confirmed as war. Kind of full circle there.
If you want law enforcement; repeal the authorization and stop treating it as war.
CHC: Congress authorized Bush to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.”
Since that doesn’t apply here, what else covers it?
The Authorization for the Use of Military Force passed in 2001:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
One can debate the wisdom of whether that authorization for war should have implicitly declared a war unconstrained by geographic boundaries, but there it is. That’s the war Congress authorized.
You are fundamentally misunderstanding the Geneva Conventions. To give a thumbnail sketch, they say that anyone detained during the war is entitled to a basic level of humane treatment (Common Article 3). Then, for those who are prisoners of war, who must meet a particular definition (such as having a uniform or carrying arms openly, among others) are entitled to other specific standards of treatment.
All prisoners of war are detainees, not all detainees are prisoners of war. To use another example, if Pineland recruits pirates to attack US shipping, pirates would be entitled to humane treatment, but they would not have the privileges of POWs.
Also, it is clear that the detainees were not always treated humanely, such as when a number of them were waterboarded.
But the AUMF still, if you think it authorized a war, automatically invokes Geneva. If you think it authorized military support of a law enforcement operation, automatically invokes various parts of the Constitution regarding the rights of the accused. Only by pretending it’s somehow neither and both can denying all rights to prisoners be rationalized.
Yeah, I agree. The authorization isn’t needed to invoke the GC. The existence of hostilities, declared or undeclared, invokes the GC. But that doesn’t mean that everyone captured is a POW, by the literal terms of the GC itself.
There’s nothing in the law to support that interpretation. Whomever says that is literally making things up.
Literal terms that do not include “unlawful enemy combatant” or whatever the hell KSM is being called. Any exceptions you may find in Geneva are not met here.
My point is that the Geneva Convention doesn’t divide up all detainees into two groups. It doesn’t say that Group A are detainees who are prisoners of war and they’re entitled to these rights and Group B are detainees who aren’t prisoners of war and they’re not entitled to those rights.
The Geneva Convention says that certain people can be classified as prisoners of war and may be detained and are entitled to certain rights. But there are no provisions in the Geneva Convention for detaining people who are not classified as prisoners of war.
It works for things that are physically possible and logically consistent, unlike God. And for things that are merely an extension of what we’ve already seen, and which is behavior we’ve seen before. Also unlike God. Comparing God, one of the stupidest and most impossible ideas in human history with a simple extrapolation of behavior we’ve already seen is silly.
Correct. I mentioned earlier, a law can’t legally make something an armed conflict (against a non-state). It depends on how it’s treated. I think it’s being treated as a war. So as you say, that automatically invokes Geneva.
However, it gets complicated as to what parts of Geneva get invoked. Geneva is not written as an all or nothing. All Articles can be invoked in some wars (State v. State), some don’t in others (non-state v. state). We (the US) now know, that at least Article 3 is invoked no matter what. As Ravenman stated, Article 3 is a fundamental level of humane treatment (no waterboarding, some due process, ect). It does not entitle you to POW status (you can never be a Geneva POW in a non-state vs. state war). You could be treated as one, though. We used to always treat the captured enemy as a POW as a matter of policy (not because we were legally obligated).
Bush tried to invoke the power to detain, and find a legal loophole to drop the power to treat people humanely. That’s wrong. The Supreme Court has said, yes, you do have the power to detain, but you must treat them humanely. That’s where we stand today. The Supreme Court’s protections are as good as they would get if they were POW’s (except they don’t get combatant immunity).
Even if the detainees were POW’s, they’d still be detained until the end of hostilities. They just couldn’t be tried for any pre-detainment (war) crimes.
Yes it does. Those combatants who are not POW’s only get Article 3 protections* as Ravenman already pointed out. This has been confirmed by the Supreme Court. See this ICRC link.
Regular combatants, Marines/Iraqi Republican Guard, are treated as POW’s. Irregular combatants (that guy in the building with the AK), can be treated as a POW as long as he fulfills certain requirements (the carrying arms openly, wearing a uniform, ect). If he doesn’t, he’s not a POW. He still gets Geneva protections, Article 3. (Bush initially tried to claim he didn’t even get that).
Some (European) countries however, do only classify people as Geneva POW’s or Civilians. That’s as a matter of policy, though. It’s not a legal requirement…yet.
*Because that’s all they get, Article 3 is becoming a sort of commerce clause, where it can mean anything and everything. But that’s a good thing.
Why don’t you point out where the AUMF makes reference to using the military for law enforcement purposes? It specifically and clearly states that the President may use the military to use force. As in, bombs, machine guns, killing, destruction, war. Then it goes on to invoke the War Powers Act, further removing any ambiguity that the resolution is specifically authoring the President to make war on the enemies identified in the resolution.
My conclusion is that if anyone is saying that the AUMF authorized the military to carry out police functions, they are making stuff up. If you can point to something in the resolution that actually supports such a claim, I invite you to prove me wrong.
