# Supreme Court issues decisions on Guantanamo and terrorism suspects

**URL:** <https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556>\
**Category:** Great Debates\
**Created:** [June 28, 2004, 3:20pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556 "2004-06-28T15:20:24Z")\
**Posts on this page:** 20\
**Page:** 2

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 2:21am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/21 "2004-06-29T02:21:13Z")

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> [@Mr. B](#):
>
> I’m not sure I understand the “dicta” thing. Hamdi (the plantiff?, err whats the terminology here) is claiming that he is being held illegally since there was no act of congress giving the military the right to hold him. The court responds that congress’s authorization for the administration to use “necessary and appropriate force” implied taking prisoners, and that prisoners could be held until the cessation of hostilities. She then notes that hostilities have not ceased, thus Hamdi’s arguement is moot.

Actually, the narrow questions in front of the court in _Hamdi_ were (a) whether the executive branch has the authority to detain citizens who are “enemy combatants” (Part II of the opinion) and (b) whether a citizen designated as an enemy combatant must be given an opportunity in court to contest the factual basis for his detention (Part III).

In the course of addressing (a), the plurality opinion addresses Hamdi’s argument that the government cannot indefinitely or perpetually detain an enemy combatant. But resolving that _length_ of detention isn’t really necessary to determine the issue of whether the government can detain an enemy combatant at all. Thus, the discussion is dicta, i.e., not necessary to the resolution of the case and not binding on future cases (though clearly calculated to tell the administration to back off its absolutist position on detention of enemy combatants).

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**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\
**Post date:** [June 29, 2004, 2:30am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/22 "2004-06-29T02:30:53Z")

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> [@minty green](#):
>
> You just touched on something very important, **Poly**. The decision in favor of Hamdi (U.S. citizen, held on U.S. soil) rests on his constitutional right to due process. The decision in favor of the Guantanamo detainees (foreign citizens, quasi-foreign soil) rests entirely on the _statutory_ right to habeas corpus. That means all Congress has to do is amend the statute and the Gitmo guys may be stuck there forever, no trials, no charges, no lawyers.

Wouldn’t such a change in the law affecting them be barred by _ex post facto_? Or is that another illusion of mine similar to double jeopardy?

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**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\
**Post date:** [June 29, 2004, 2:34am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/23 "2004-06-29T02:34:10Z")

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> [@minty green](#):
>
> …(though clearly calculated to tell the administration to back off its absolutist position on detention of enemy combatants).

Supreme Court decisions have _subtext_? Is there any post-modernist irony? I’m a big fan of post-modernist irony…

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 2:47am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/24 "2004-06-29T02:47:46Z")

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> [@Revtim](#):
>
> Why is it your legal opinion that these people are outside the Geneva Convention?

The best threads on this topic–a couple of huge debates involving me and **pjen** –were lost a couple years ago in the Winter of Missed Content. The best remaining thread is [this one](http://boards.straightdope.com/sdmb/showthread.php?t=169862). Here’s the relevant discussion:

> [@minty green](#):
>
> There are a myriad of reasons why captured Taliban and Al Qaeda fighters were not afforded the legal protections of POW’s, but the simple answer is that they did not fit any of the definitions described in the GC. The Taliban was never the internationally recognized government of Afghanistan–that honor went to the Northern Alliance. Hence, Taliban troops were not considered members of the armed forces of one of the “High Contracting Parties.” Al Qaeda fighters were simply not members of any structured army at all, and hence never had a chance to qualify under any of the GC’s categories of POWs.
> 
> The Geneva Convention text defining who is a POW is reprinted below:
> 
> > [@](#):
> >
> > Article 4
> > 
> > A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
> > 
> > 1. 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.
> > 
> > 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
> > 
> > 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
> > 
> > 4. 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 annexed model.
> > 
> > 5. 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.
> > 
> > 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.  
> > B. The following shall likewise be treated as prisoners of war under the present Convention:
> > 
> > 7. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
> > 
> > 8. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.  
> > C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

So basically, you’re only a POW if you fall into those categories. Al Qaeda members clearly do not–and I believe even Human Rights Watch conceded as much back when the Gitmo issue first arose–and the Taliban arguably do not, insomuch as they were not the army of the internationally-recognized government of Afghanistan, they didn’t wear uniforms with insignia recognizable at a distance, they appeared not to have formalized command structure, they didn’t necessarily follow the recognized rules of warfare, etc.

FWIW, I note that one of the concurring opinions today–Souter’s concurrence to _Hamdi_, I believe–suggested that the government had conceded the Taliban were covered by the Geneva Convention. I don’t know what the basis of that is, but I’d like to see it.

> [@Revtim](#):
>
> What was different about the Afghanistan invasion that makes it different from other armed conflicts, like, say, Vietnam?

In Vietnam, the North Vietnamese Army were certainly entitled to POW status because they were armed forces of a “Party” (i.e., signatory) to the Convention. [At least, I assume that North Vietnam signed off on the G.C.] Members of the Viet Cong resistance were potentially entitled to POW status, but only if they (a) were commanded by a person responsible for his subordinates; (b) wore a fixed distinctive sign recognizable at a distance; (c) carried their arms openly; and (d) conducted their operations in accordance with the laws and customs of war. I’m just guessing here (I was just a wee little breath mint at the time, even though I was living practically next door in Thailand), but I doubt most Viet Cong fulfilled those criteria. Those who did were entitled to POW status and treatment. Those who did not may have gotten it anyway out of the goodness of our hearts. [Not everyone, however](http://www.treefort.org/~cbdoten/rvntanks/080-4450.htm).

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 2:52am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/25 "2004-06-29T02:52:17Z")

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> [@David Simmons](#):
>
> Wouldn’t such a change in the law affecting them be barred by _ex post facto_? Or is that another illusion of mine similar to double jeopardy?

IAN (with one exception) A criminal L, but my recollection is that the constitutional prohibition on _ex post facto_ laws applies only to substantive laws, not to the procedures applicable in criminal proceedings. And hell, I’m not even sure these are criminal proceedings at all. Nor are these guys (except Hamdi and Padilla) citizens, which even further reduces any claim about _ex post facto_.

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 2:55am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/26 "2004-06-29T02:55:52Z")

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And for a bit of SDMB background, here is a good [a GD thread](http://boards.straightdope.com/sdmb/showthread.php?t=121566) from two years ago, when the Padilla and Hamdi detentions first became an issue.

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**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\
**Post date:** [June 29, 2004, 3:47am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/27 "2004-06-29T03:47:13Z")

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> [@David Simmons](#):
>
> Wouldn’t such a change in the law affecting them be barred by _ex post facto_? Or is that another illusion of mine similar to double jeopardy?

Nope. One of the Dopers-at-Law and I had an interesting exchange on the application of ex post facto to the three-strikes law, but other than that questionable circumstance, jurisprudence dating back before Marbury v. Madison has held that the bar on ex post facto laws relates specifically to criminal laws – you must be tried and convicted for a crime under the law of the time of your alleged offense; the legislature cannot decide in 2004 that something you did legally in 2002 is now a crime back-dated to when you did it, nor can it turn the petty offense you committed then into a felony retroactively and give you a harsher sentence.

But the Writ of Habeas Corpus is a matter of common law and court procedure codes (usually criminal procedure, but there are jurisdictions where it comes under civil law for reasons I don’t grasp at all!). And it’s (IIRC) the sole procedural guarantee in the original pre-Bill-of-Rights Constitution – but Congress does have the right to suspend it when “in Cases of Rebellion or Invasion the public Safety may require it.” And precedent from an _Ex Parte_ case late in the Civil War indicates that the President does not have the official power to suspend it as his sole prerogative – but that he may do so _extra vires_ if the Congress agrees that he did the right thing under the circumstances when they bring it up for a vote. (The second-weirdest opinion Taney ever wrote.)

**Minty** , I’d question whether we have a case of “Rebellion or Invasion” right now – which means that Congress may not suspend the Writ legally. But if they went ahead and did so anyway – how would SCOTUS react?

(It’s important to note that some of the most thorough scholarship on this subject was done by none other than our sitting Chief Justice – he wrote a popular-consumption book entitled _All the Laws But One_ that got into the Great Writ and its uses and abuses in mind-numbing detail, and much of the modern jurisprudence connected with the writ has been from his pen.)

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 4:08am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/28 "2004-06-29T04:08:23Z")

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Beats me, Poly. I just don’t know enough to speak about executive suspension of habeas corpus.

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**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\
**Post date:** [June 29, 2004, 4:37am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/29 "2004-06-29T04:37:31Z")

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> [@Polycarp](#):
>
> > [@David Simmons](#):
> >
> > Wouldn’t such a change in the law affecting them be barred by ex post facto? Or is that another illusion of mine similar to double jeopardy?
> 
> Nope. One of the Dopers-at-Law and I had an interesting exchange on the application of ex post facto to the three-strikes law, but other than that questionable circumstance, jurisprudence dating back before Marbury v. Madison has held that the bar on ex post facto laws relates specifically to criminal laws – you must be tried and convicted for a crime under the law of the time of your alleged offense; the legislature cannot decide in 2004 that something you did legally in 2002 is now a crime back-dated to when you did it, nor can it turn the petty offense you committed then into a felony retroactively and give you a harsher sentence.

Unfortunately I asked two questions. To which one does you “nope” apply, the first “is it barred” or the second “is such a bar just another of my illusions?”

Minty said that _ex post facto_ wouldn’t bar congress changing the law with respect to criminal procedure so it would be no avail to the so-called detainees in this case.

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**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\
**Post date:** [June 29, 2004, 5:29am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/30 "2004-06-29T05:29:55Z")

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> [@](#):
>
> But these guys _were_ (with the exception of Jose Padilla) captured in armed combat against the United States. Since when has the U.S. ever charged and tried such persons, unless they were accused of specific, identifiable crimes?

At the risk of a hijack, this is not particularly true. Many of the people held at Guantanamo were, indeed, resisting the U.S. invasion of Afghanistan (which _should_ have made them POWs if they were associated with the Taliban rather than al Qaida). However, a significant number of them appear to have been people in the wrong place at the wrong time (much like the 70% of the detainees at Abu Ghraib whom the U.S. now acknowledges were probably guilty of no crimes or attacks) or were people who were handed over to the U.S. by our allies in acts of vendetta or to settle personal grudges.

One point to getting them some legitimate representation would be to secure freedom for those who were unjustly (and irrationally) imprisoned.

(It is also interesting to read an account of the actual German “saboteurs” who were rushed through the judicial process early in WWII. A fair reading of their actions would indicate that their “crimes” were also seriously overblown to justify their hasty dispatch rather than being based on an actual threat to the country. As Eugene Debs and the Nisei citizens of California can attest, it is not good to be charged with vague crimes during war time in the U.S.)

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 11:29am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/31 "2004-06-29T11:29:42Z")

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My point was that persons who appear to be combatants who are captured during the course of military operations have, historically, never been afforded criminal charges and trials to justify their detentions. As a practical matter, if you’re taken prisoner in such circumstances, you’re going to be detained until the authorities decide that you’re not worth detaining. Regardless, those prisoners who claim to have merely been in the wrong place at the wrong time will now have an opportunity to challenge their detention. My guess, however, is that if they had any association with armed forces fighting against the U.S. and its allies, the courts will not interfere.

Also, do note that there is a very serious argument that Taliban forces are not, at least generally, qualified for POW status under the terms of the Geneva Convention.

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**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\
**Post date:** [June 29, 2004, 11:42am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/32 "2004-06-29T11:42:48Z")

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I would really like this “enemy combatant” status to be cleared up. It seems that all it needs for the GC to be thrown out of the window is for an ipso facto government not to be _recognised_ as such by an invading force. Anyone who shot back when shot at would then fall into the legal black hole which the GC was _specifically formulated in order to avoid_.

The US Army regulations 190-8 is perfectly clear that **anyone** captured in combat is afforded POW status **until** a tribunal changes their status if there is **evidence** of contravention of the rules of war such as _pretending_ to be a civilian immediately prior to carrying out an act of war. I do not see why this perfectly clear document is being ignored.

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 12:29pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/33 "2004-06-29T12:29:25Z")

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Because the Commander in Chief says to ignore the Army regulation you’re complaining about. Not that difficult a concept, is it?

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**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\
**Post date:** [June 29, 2004, 12:37pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/34 "2004-06-29T12:37:29Z")

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Of course I _understand_ the concept, just as I would understand the concept of the president ordering the army to ignore the GC in its _entirety_ and not take _any_ PoW’s _ever_. Ignoring the GC solely on the basis that the invading force does not recognise the government is surely a recipe for widespread abuse?

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 12:37pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/35 "2004-06-29T12:37:52Z")

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Additionally, the specific regulation you’re complaining about states as follows: _All persons taken into custody by U.S. forces will be provided with the protections of the GPW until some other legal status is determined by competent authority._ It doesn’t require status to be determined by a tribunal. “Competent authority” certainly includes such authorities as the President and the Secretary of Defense, who made the call here that these guys are not POWs.

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**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 12:39pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/36 "2004-06-29T12:39:26Z")

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> [@SentientMeat](#):
>
> Ignoring the GC solely on the basis that the invading force does not recognise the government is surely a recipe for widespread abuse?

Actually, no government on the planet except for Pakistan and Saudi Arabia recognized the Taliban. So don’t go blaming that on some quirk of the United States.

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**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\
**Post date:** [June 29, 2004, 12:42pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/37 "2004-06-29T12:42:13Z")

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> [@](#):
>
> All persons taken into custody by U.S. forces will be provided with the protections of the GPW until some other legal status is determined by competent authority.

Yes, and section 1-6 describes precisely what that authority entails.

In any case, we agree that the word “ **until** ” requires that every prisoner has PoW _initially_ and that it is changed _later_?

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**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\
**Post date:** [June 29, 2004, 12:45pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/38 "2004-06-29T12:45:28Z")

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> [@](#):
>
> Actually, no government on the planet except for Pakistan and Saudi Arabia recognized the Taliban. So don’t go blaming that on some quirk of the United States.

Yes, I appreciate that. But it seems entirely questionable that one should lose all legal protection simply because one happens to live in a politically turbulent locality. I might not even _know_ that my government was “unrecognised” - what do I do if shot at by an invading force?

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<div class="post-metadata">

**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\
**Post date:** [June 29, 2004, 1:48pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/39 "2004-06-29T13:48:32Z")

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Duck.

Okay, if you mean “What do I do if I want to fight the invading force and still be entitled to legal status as a POW in the unlikely event that I am not blown to smithereens?” then the thing to do is make sure your behavior comports with the requirements of the Convention. There are three options for you.

First, “on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form [yourself] into regular armed units, provided [you] carry arms openly and respect the laws and customs of war.” None of this guerilla warfare crap, or it’s off to Cuba with you.

Second, if your government is a “Party” to the Convention, join up with a militia, volunteer corps, or organized resistance movement in support of your government, so long as you are commanded by a person responsible for his subordinates, wear a fixed distinctive sign recognizable at a distance, carry arms openly, and conducting your operations in accordance with the laws and customs of war.

Third, become a member of “regular armed forces” that profess allegiance to a government or an authority not recognized by the guys who captured you. The key here is to make sure that your outfit qualifies as “regular armed forces.” The term is (unfortunately) not defined by the Convention, but I would strongly suggest that you have a formal command structure, wear a uniform with a fixed insignia, carry arms openly, and respect the laws and customs of war.

And don’t go crying about the Geneva Convention if you don’t fit into one of those categories.

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<div class="post-metadata">

**Author:** ![SentientMeat](https://avatars.discourse-cdn.com/v4/letter/s/43a26b/32.png) [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)\
**Post date:** [June 29, 2004, 2:06pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/40 "2004-06-29T14:06:13Z")

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It would seem that the US could deny PoW status to its captured enemies if invaded, say, most of Africa. If _I_ were an Afghan farmer having been fed all kinds of propaganda about the invading US forces, forgive me if the first thing I think of when the hellfires start raining down is not finding myself an fixed sign or emblem recognisable at a distance.

I certainly think the GC could use some amendment in order to be clearly applied in countries where there is no recognised government. At the very least, do we agree that the burden of proof should be on the capturers to show that a given prisoner _violated_ the laws and customs of war, rather than decree that he violated them simply by dint of his situation? I cannot help thinking that this approach is open to all kinds of abuse.

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