Released Guantanamo Detainees Planned Fizzled Plane Explosion

[Kobal2]

After a lickle bit of research, here’s the opinion of the Yugoslavia war crimes tribunal (bolding mine) :

In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

    [e]very person in enemy hands must have some status under international law: **he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.** We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view

(cite)

Incidentally, both III and IV forbid torture and outrages upon personnal dignity, so whether the Gitmo detainees have the added benefits provided by the POW status, or merely the baseline civilian protection doesn’t really matter, as the US would be guilty either way.

[The_Tooth]

@tomndebb

The destruction of Fallujah did not have to happen.

Fallujah was a pro-American city. There were elements there, as throughout the country, that were anti-American. The four contractors were in an unarmored vehicle moving through a neighborhood where allied troops had been told to avoid when they were murdered. Instead of treating the incident as murder and sending in U.S. and Iraqi police to discover who actually committed the murders, we sent in troops to “take” the city. We did not have to commit any atrocities to turn the populace against us, we merely needed to go in shooting–just as the insurgents hoped and just as we did.

Also, civilians fleeing the city were forced back in. They weren’t detained as suspected terrorists, they were forced back into what would soon be a battlefield. I find that to be pretty atrocious.

[Squink]

@Evil_One

I read the same article. Where did you get the impression that there was “intentional bungling”? What would the motive be for such bungling?

The motive would be to let the [del]government’s killers[/del] valuable contractors off the hook for murder.
The Iraqi’s are not pleased with this outcome:
Iraq ‘to appeal Blackwater verdict’

It appears that some of the contractors killed in this week’s suicide bombing in Afghanistan were from Development Alternatives, Inc, but given Xe’s involvement in drone operations, they might just as well have come from Blackwater.
It does not benefit the govt. to punish current contractors, so they have a strong motive to bungle the prosecution.

[ElvisL1ves]

@CoolHandCox

There is plenty. It stems from the well settled principle of military necessity.

That is, once again, avoiding responsibility simply by choice of terminology. I doubt you’d disagree that the military must be able to make a plausible explanation of necessity.

There is a problem and understanding with the open-endedness of the detention though, that must be addressed.

All you can do is give these detainees an appropriate amount of due process. This is happening now.

It’s starting, yes. Your use of the word “appropriate” is troubling, though - on what basis would any less process than that due under the Constitution or the Conventions be appropriate?

re: “War on Terror” = war on a tactic, therefore it can’t be a war. It’s a grammatically dumb phrase, for sure.

It’s not dumb at all, but quite considered. Its use enabled Cheney et al. to claim absolute, unlimited authority under the Unitary Executive bollocks, by the very fact that the enemy is undefined and the conflict is interminable. It enabled them to continue to generate popular support for Halliburton’s invasion of Iraq, by continuing to whip up popular fear. Using the name of a country, or a specific organized crime syndicate, would not have permitted that.

Your claim is that use of the military as police, either to supplement or replace ordinary police forces, is sufficient to make a crime-fighting effort a “war”. I would suggest to you instead that a war must involve a defined, named enemy, as well as the consent of Congress to pursue that enemy (whether or not by a formal declaration). Neither is present in TWAT.

Could they be criminals and/or could it be treated as a police action? Yes, but so can anyone. You can be a combatant and a criminal at the same time; it doesn’t have to be either or.

Then those detaining you need to say so, even if it inconveniently acknowledges that your status gives you rights and that laws must be followed.

[ElvisL1ves]

BTW, “unlawful combatant” is also a calculated choice of terminology. One that has no meaning under the law or any treaty, and therefore entails no rights or responsibilities, but still creates an aura of legitimacy.

[Der_Trihs]

@The_Tooth

Also, civilians fleeing the city were forced back in. They weren’t detained as suspected terrorists, they were forced back into what would soon be a battlefield.

Certainly. That way we could call them “terrorists” while we killed them. After all, if they weren’t terrorists they would have fled the city, right?

[Evil_One]

@Diogenes_the_Cynic

There is no “anti-military bias” on the left. The notion that the left is hostile to the military is a pure fabrication of the right wing media complex.

This statement speaks volumes, Dio. Simply breathtaking.

[Der_Trihs]

@Evil_One

This statement speaks volumes, Dio. Simply breathtaking.

Yeah, we don’t live in the 1960s anymore, isn’t it amazing?

[VinylTurnip]

@Evil_One

This statement speaks volumes, Dio. Simply breathtaking.

Being slightly more reluctant to use ordnance and wholesale slaughter as a go-to solution for every political problem does not equal hating the troops.

[CoolHandCox]

@ElvisL1ves

That is, once again, avoiding responsibility simply by choice of terminology. I doubt you’d disagree that the military must be able to make a plausible explanation of necessity.

I would not disagree. I don’t quite understand why using the principle of military necessity is wrong. It’s a hundreds year old principle. It’s been recently acknowledged by the Supreme Court that it applies to detaining organized crime (AQ) combatants as lawful. I do recognize that you must balance military necessity with treating people humanely.

It’s starting, yes. Your use of the word “appropriate” is troubling, though - on what basis would any less process than that due under the Constitution or the Conventions be appropriate?

Appropriate = adequate. It was simply a choice of terminology. I would wager, today, the detainees get more process than that required under the Geneva Conventions. That’s misleading, though because their detention duration is longer and therefore more process is due. WWII detainees (soldiers) usually did not question they were not combatants; also their detention, in hindsight, was shorter.

It’s not dumb at all, but quite considered. Its use enabled Cheney et al. to claim absolute, unlimited authority under the Unitary Executive bollocks, by the very fact that the enemy is undefined and the conflict is interminable. It enabled them to continue to generate popular support for Halliburton’s invasion of Iraq, by continuing to whip up popular fear. Using the name of a country, or a specific organized crime syndicate, would not have permitted that.

Your claim is that use of the military as police, either to supplement or replace ordinary police forces, is sufficient to make a crime-fighting effort a “war”. I would suggest to you instead that a war must involve a defined, named enemy, as well as the consent of Congress to pursue that enemy (whether or not by a formal declaration). Neither is present in TWAT.

Congress did consent to pursue the enemy (AQ) and anyone who harbored them (Afghanistan). But, if the authorization would have contained a defined name, would the authorization to use military force have become defunct if said organized crime syndicate simply changed their name? Do they really even have a name?

Anyways, I would have liked a sunset clause in the AUMF, and have it re-voted on every other year or something in that regards. It’s too hard to not vote to appropriate more money to continue the war because if you don’t, you’re labeled as “not caring about American soldiers.” I mean, most politicians against the war kept voting to appropriate more money to the effort, when that is the one thing that would effectively end the war.

[re: treating as criminals] Then those detaining you need to say so, even if it inconveniently acknowledges that your status gives you rights and that laws must be followed.

By treating them as combatants we our acknowledging are right, under the principle of military necessity, to hold them w/o charges until the end of hostilities. This has been recently confirmed by the US Supreme Court, an interpreter of laws.

@ElvisL1ves

BTW, “unlawful combatant” is also a calculated choice of terminology. One that has no meaning under the law or any treaty, and therefore entails no rights or responsibilities, but still creates an aura of legitimacy.

Unlawful combatant = unprivileged belligerent. Unprivileged of POW status or right to combatant immunity. It is not defined under Geneva, but it’s a word of art used for people who fight (combatants), but do not follow the laws of war according to the Geneva Conventions (unlawful). see this ICRC page for a Q&A regarding the GWOT. The ICRC does not make law, but is a leading figure in Human Rights law and International Humanitarian law.

After writing the last part, I saw the insightful post earlier by Kobal2 which goes along with this. I will reply separately to his post, manana.

[Diogenes_the_Cynic]

@Evil_One

This statement speaks volumes, Dio. Simply breathtaking.

What do you think it “speaks,” dude? I’ve served in the military. Have you?

[ElvisL1ves]

@CoolHandCox

I don’t quite understand why using the principle of military necessity is wrong.

It isn’t, when the necessity actually exists. The problem is claiming necessity when it’s really just convenience.

Appropriate = adequate. It was simply a choice of terminology.

You’ve been remarkably hard to pin down on definitions and actual meanings, my friend.

WWII detainees (soldiers) usually did not question they were not combatants; also their detention, in hindsight, was shorter.

There was no question who the enemy was, or that there would be an end to the war, and that it was a war. The equivalence you’re drawing is what?

Congress did consent to pursue the enemy (AQ) and anyone who harbored them (Afghanistan).

You misspelled “Iraq”.

By treating them as combatants we our acknowledging are right, under the principle of military necessity, to hold them w/o charges until the end of hostilities.

We are also acknowledging their rights to be treated as such. That was years overdue.

Unlawful combatant = unprivileged belligerent. Unprivileged of POW status or right to combatant immunity. It is not defined under Geneva

Exactly the point. It’s a word game to avoid Geneva. It is also not defined under the law anywhere else, no matter your claim it to be a “word of art”. Such things do not exist in the law or in treaties. It also avoids the question of who has the right to assign terminology, or determine lawfulness. *And it didn’t even exist until Cheney started getting criticism about his methods. *But the term does have the PR effect it is intended to have.

[ElvisL1ves]

From your Red Cross cite (good reading, thanks):

In non-international armed conflict combatant status does not exist.

[elucidator]

Are you suggesting that the Bush Admin deliberately chose this semantic smokescreen in order to evade international standards of behavior in wartime?

Gasp!

[ElvisL1ves]

Apparently I hate America. I have no idea why, though.

[CoolHandCox]

@ElvisL1ves

It isn’t, when the necessity actually exists. The problem is claiming necessity when it’s really just convenience.

I get what you’re saying. But military necessity applies in an “armed conflict.” The War against Al Qaeda has been accepted by many to be an armed conflict (namely the Supreme Court), thus, military necessity applies (again, must balance necessity with humanity).

You’ve been remarkably hard to pin down on definitions and actual meanings, my friend.

I’m not trying to be. I’m not even sure what you think I’m being evasive about. re: adequate, appropriate due process. I’m just saying the detainees, today, have ummm good, legal, 1st world, due process. I’m running out of synonyms, though.

[re: Unlawful Combatant] Exactly the point. It’s a word game to avoid Geneva. It is also not defined under the law anywhere else, no matter your claim it to be a “word of art”. Such things do not exist in the law or in treaties.

I don’t think the word tweeting exists, but you know what it means (please don’t point me to a website that defines tweeting). The point is, Geneva requires certain militias to follow certain requirements to get POW status. Someone fighting (a combatant) who does not follow those requirements laid out in Art. 4 of the Geneva Conventions might be considered unlawful (as opposed to lawful). Unlawful combatant is a pretty good word to describe that situation. I would use unprivileged belligerent, and I believe that is the word Obama is now using. It just means that are combatants who do not follow the law of war and are unprivileged of POW status and/or Combatant Immunity.

The opinion Kobal2 linked too basically states, if you’re not a POW, you’re a civilian. “POW” and “civilian” are both defined Geneva terms. That opinion (I haven’t read it, Cotton Bowl n all) probably would not allow an unlawful combatant gap. You wouldn’t come to that conclusion from a strict reading of Geneva, though. It’s filling Geneva gaps through court interpretation.

It also avoids the question of who has the right to assign terminology, or determine lawfulness. *And it didn’t even exist until Cheney started getting criticism about his methods. *But the term does have the PR effect it is intended to have.

The Supreme Court. They are the interpreters of Constitution/laws/treaties. They can be influenced by the ICRC and international court opinions, but none of it is binding on them per the Supremacy Clause. So they could interpret Geneva differently than an opinion from the International Criminal Tribunal for the Former Yugoslavia or the ICC or Spain’s Supreme Court or whoever. I can say, the European Human Rights/Humanitarian law is much more matured than the Americans, and they tend to lead in the way things will move because they’ve been dealing with this stuff much longer than we have.

@ElvisL1ves

From your Red Cross cite (good reading, thanks):

(Welcome). The ICRC is slightly different than the Red Cross. The ICRC is the self proclaimed “guardian of international humanitarian law” (law of armed conflict/law of war). They have been keeping dibs on Iraq War, Afghanistan War, GWOT since day 1. They have a more progressive view of IHL, and likely rightly so, as their job is to protect the victims of war.

[ElvisL1ves]

@CoolHandCox

I get what you’re saying.

Then I wish you’d respond to it, instead of going back to your same point. Maybe I can be clearer: “Military necessity” in the case of the Gitmo kidnap victims is a lie.

I’m not trying to be. I’m not even sure what you think I’m being evasive about.

The problem is that you appear susceptible to the word games Cheney started and that Obama has not ended. The reality is what it is. Calling it something else, or pointing out that some word can mean something, has no effect on reality.

I’m just saying the detainees, today, have ummm good, legal, 1st world, due process.

I sure wish it looked like it.

I don’t think the word tweeting exists, but you know what it means (please don’t point me to a website that defines tweeting).

We’re discussing legal rights. The term “unlawful combatant” has no more legal meaning than the word “tweeting”.

Someone fighting (a combatant) who does not follow those requirements laid out in Art. 4 of the Geneva Conventions might be considered unlawful (as opposed to lawful).

“Might be”? :dubious:

Unlawful combatant is a pretty good word to describe that situation.

Again, there is no legal meaning to the term, and your own Red Cross cite disagrees with you.

I would use unprivileged belligerent

But with no more substance. Like it or not, the laws and treaties (developed over generations of the civilized world’s experience with bloodshed) do apply, and all such conditions are already covered.

The Supreme Court. They are the interpreters of Constitution/laws/treaties.

So far that has not been the case. After nearly a decade they haven’t done squat about this. All we have are assertions by the Gonzalez/Yoo/etc. crew that have been accepted whole by too many people. And even the knowledge that they could take action is the reason the kidnap victims are being held in such a convenient location.

No disagreement at all that we’re behind the rest of the civilized world, most of which got that way by having major wars on “their own soil” followed by, in many cases, years of actual homegrown terrorism. But we’ve had our own good scare now and what it’s revealed hasn’t always been pleasant to contemplate.

[CoolHandCox]

@ElvisL1ves

Then I wish you’d respond to it, instead of going back to your same point. Maybe I can be clearer: “Military necessity” in the case of the Gitmo kidnap victims is a lie.

The problem is that you appear susceptible to the word games Cheney started and that Obama has not ended. The reality is what it is. Calling it something else, or pointing out that some word can mean something, has no effect on reality.

I understand that you think that military necessity regarding Gitmo detainees is a lie. I’m saying, without comment, it’s legal. I can call the death penalty in Texas a lot of things, but one thing I cannot call it is illegal.

In Hamdi v. Rumsfeld the Supreme Court concluded that AQ/terrorists could be lawfully detained under the principle of military necessity because we were at war. Preventive detention is a “necessary incident to war.” When the Supreme Court makes decisions, it’s constitutional. You can not agree with that. You can call that decision many things, but one thing you can’t call preventive detention of enemy combatants, is illegal. That’s all I’m trying to say.

We’re discussing legal rights. The term “unlawful combatant” has no more legal meaning than the word “tweeting”…

Again, there is no legal meaning to the term, and your own Red Cross cite disagrees with you.

But with no more substance. Like it or not, the laws and treaties (developed over generations of the civilized world’s experience with bloodshed) do apply, and all such conditions are already covered.

Here is what the ICRC said in that link (in 2005 to be fair):

Unlawful combatants do not qualify for prisoner of war status. Their situation upon capture by the enemy is covered by the Fourth (Civilian) Geneva Convention if they fulfil the nationality criteria and by the relevant provisions of the Additional Protocol I, if ratified by the detaining power.

This protection is not the same as that afforded to lawful combatants. To the contrary, persons protected by the Fourth Convention and the relevant provisions of Protocol I may be prosecuted under domestic law for directly participating in hostilities.** They may be interned for as long as they pose a serious security threat, and, while in detention, may under specific conditions be denied certain privileges under the Fourth Geneva Convention**. They may also be prosecuted for war crimes and other crimes and sentenced to terms exceeding the length of the conflict, including the range of penalties provided for under domestic law.

Basically, if not a Geneva POW, then a Geneva civilian. Civilians are “interned.” We interned many thousands (25k?) in Iraq. They have now been released or prosecuted. The Gitmo detainees still pose a serious threat to security, so they have not been released. (I’m using ICRC logic, which isn’t necessarily the logic the US uses, ie holding as unlawful combatants, but it would seemingly be justified either way.)

But that ICRC quote wouldn’t even apply to Al Qaeda detainees, because the above quote only applies in State v. State wars. Here’s what applies in non-international wars per the ICRC:

In non-international armed conflict combatant status does not exist. Prisoner of war or civilian protected status under the Third and Fourth Geneva Conventions, respectively, do not apply. Members of organized armed groups are entitled to no special status under the laws of non-international armed conflict and may be prosecuted under domestic criminal law if they have taken part in hostilities. However, the international humanitarian law of non-international armed conflict - as reflected in Common Article 3 of the Geneva Conventions, Additional Protocol II to the Geneva Conventions where applicable, and customary international humanitarian law – as well as applicable domestic and international human rights law all provide for rights of detainees in relation to treatment, conditions and due process of law.

Basically, you get Common Article 3 protections. And today, after policy changes as the result of Supreme Court decisions, Gitmo detainees get the required amount of common article 3 due process (likely more).

You may want them to be tried as criminals, but that doesn’t mean holding them sans charges under the law of armed conflict is illegal. You may not want the law of armed conflict to apply because this is not a “war,” but that doesn’t mean the Supreme Court says it is a war and thus the law of armed conflict does apply and you only get Article 3 protections.

No disagreement at all that we’re behind the rest of the civilized world, most of which got that way by having major wars on “their own soil” followed by, in many cases, years of actual homegrown terrorism. But we’ve had our own good scare now and what it’s revealed hasn’t always been pleasant to contemplate.

No disagreement here. But we’re further along than you think. We just had a horrible start.

[Kobal2]

@CoolHandCox

The opinion Kobal2 linked too basically states, if you’re not a POW, you’re a civilian. “POW” and “civilian” are both defined Geneva terms. That opinion (I haven’t read it, Cotton Bowl n all) probably would not allow an unlawful combatant gap. You wouldn’t come to that conclusion from a strict reading of Geneva, though. It’s filling Geneva gaps through court interpretation.

Yes and no. The opinion I quoted is is a court interpretation, however the “you’re either POW or civilian or field doc, period, no exception” quote the interpretation cited is from the official commentary of the convention, which was drawn up by the ICRC and is, for all intents and purposes, part of the convention itself.

[Evil_One]

@Diogenes_the_Cynic

What do you think it “speaks,” dude? I’ve served in the military. Have you?

I have, yes. We were both in the Navy at approximately the same time in the 1980’s.

When I first read your assertion that “there is no anti-military bias on the left”, I literally laughed out loud and initially thought that it would be pointless to respond. If you truly believe that, I think you’re naive. If you’re simply saying it to provide cover and noise for your general beliefs, then you are being disingenuous.

The left has been hostile to the military and what it represents since the Vietnam war. The only bigger villians to lefty loons are “corporations” and the CIA.

You want cites? Examples? The left simply can’t wait to believe the worst of soldiers under combat. Leftist members of congress can’t wait to cut the pentagon budget because they believe it’s the best source of vote buying cash. President Clinton’s quote of “loathing” the military is reflective of the state of mind that is in vogue for thousands of his contemporaries. John Kerry ostentatiously “thowing away his medals” to ingratiate himself to his chosen ideological soulmates.

There is something about the military that gets under the skin of many leftists. Perhaps part of it is that they don’t like to be reminded that there are people that are actually risking their lives to preserve our culture and way of life…while they just talk about esoteric theories of societal reengineering.

Leftists who don’t like the military are the ones that roll their eyes when people stand for the national anthem…and wouldn’t be caught dead at a Veterans Day celebration. They think they’re just a little too cool for ideas like patriotism…and they don’t like to be reminded that there are people who do more for this country by just waking up in the morning than they have done over their entire lives.

I’m proud of my military service. I was almost killed twice and missed the birth of my first child while overseas. I spent two years out of six in harms way at sea. And as much as I’ve risked and done, it doesn’t come close to what other military members have sacrificed for me and this country.

I admire them. Some are shamed by them.