# Supreme Court issues decisions on Guantanamo and terrorism suspects **URL:** \ **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:** 3
**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, 2:12pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/41 "2004-06-29T14:12:33Z")
> [@](#): > > None of this guerilla warfare crap We do agree that _US and UK_ forces execute missions which could essentially be described as “guerilla warfare”, don’t we? Is PoW status to be denied those caught in Special Forces missions and the like as well? ---
**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, 2:39pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/42 "2004-06-29T14:39:48Z")
Special Forces types appear to be covered by Article 4(A)(1): “Members of the armed forces of a Party to the conflict . . . .” Nevertheless, it could easily be argued that you lose that status if you don’t wear uniforms and such, so they could be in trouble if they wear civilian clothes as a disguise. ---
**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, 3:06pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/43 "2004-06-29T15:06:49Z")
> [@](#): > > it could easily be argued that you lose that status if you don’t wear uniforms and such This is the nub of my concern. For five decades the civilised world has not sought fit to _weasel out of_ granting initial PoW status to its captured enemies as a matter of course, as is clear from the US Army regulations. This latest development which allows a High Contracting Party to pick out loopholes in the specific wording of the GC in order to summarily decree all enemy combatants in a given location “illegal” is a break with this tradition, and IMO a highly unwelcome one. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 29, 2004, 4:15pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/44 "2004-06-29T16:15:11Z")
> [@minty green](#): > > 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. Not according to my copy of the GC: > [@](#): > > Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a \*\*[competent tribunal](http://www.unhchr.ch/html/menu3/b/91.htm) \*\*. ---
**Author:** ![Xiphos](https://avatars.discourse-cdn.com/v4/letter/x/48db29/32.png) [@Xiphos](https://boards.straightdope.com/u/Xiphos)\ **Post date:** [June 29, 2004, 4:28pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/45 "2004-06-29T16:28:45Z")
I have some problem with the status of “enemy combatants”. If these people are not POWs as given by the GC. Who was the US at war with? Was it a war or an extension of police power? Was Afghanistan an effectively ungoverned/lawless country and was the action justified under the same sort of grounds that the navy might use to fight pirates? But even then wouldn’t a “pirate” be a criminal and entitled to trial? ---
**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, 6:38pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/46 "2004-06-29T18:38:19Z")
> [@sevastopol](#): > > Not according to my copy of the GC I wasn’t quoting the Geneva Convention. I was quoting the Army regs relied upon by SentientMeat. Note also that your quote from the GC only requires a tribunal determination if “doubt arises” as to their status. If there are no facts to cast dount on the status determination, there is no tribunal. ---
**Author:** ![hawthorne](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@hawthorne](https://boards.straightdope.com/u/hawthorne)\ **Post date:** [June 30, 2004, 3:34pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/47 "2004-06-30T15:34:46Z")
> [@minty green](#): > > I wasn’t quoting the Geneva Convention. I was quoting the Army regs relied upon by SentientMeat. > > Note also that your quote from the GC only requires a tribunal determination if “doubt arises” as to their status. If there are no facts to cast dount on the status determination, there is no tribunal. I am surprised to see you run this line, **minty**. Apart from anything else, it contradicts what you’ve already said in this thread: > [@](#): > > 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, […] [emphasis added] and > [@](#): > > 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. Ok, so you could make an argument. But you’d have to, right? And until such time as that argument has been made and won in front of a competent tribunal - where I suspect some of the Guantanamo Bay interned would be found **not** to be POWs - the Conventions state that they have to be afforded the rights of POWs. They haven’t been of course. ---
**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 30, 2004, 5:07pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/48 "2004-06-30T17:07:42Z")
I see no contradiction in my statements. “Doubt” must arise with respect to the status of an _individual_ detainee, and it has to be shown by actual or alleged facts that would place the detainee within the GC categories of POWs. I’m willing to concede that facts may exist in some cases that would create doubt as to the status of individual detainees, and hence entitle them to a tribunal determination under the GC, but ain’t nobody shown any facts so far that would do so. That being the case, I am unimpressed with the claim that these guys are entitled to a tribunal resolution of their states. C’mon, show me the facts that would be capable of demonstrating those guys wore fixed insignia recognizable at a distance, followed the rules and customs of war, had a formal command structure, etc. Near as I can tell, none of those hallmarks of “regular armed forces” were true for the Taliban. ---
**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 30, 2004, 5:10pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/49 "2004-06-30T17:10:07Z")
Also, your quote of my “arguably” statement is rather unfair, given that it deletes the rest of that sentence that clearly explained why they were _not_ qualified for POW status. ---
**Author:** ![hawthorne](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@hawthorne](https://boards.straightdope.com/u/hawthorne)\ **Post date:** [June 30, 2004, 6:12pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/50 "2004-06-30T18:12:53Z")
> [@minty green](#): > > Also, your quote of my “arguably” statement is rather unfair, given that it deletes the rest of that sentence that clearly explained why they were _not_ qualified for POW status. I didn’t mean to be mean. My point was that - good or not - it remains an argument and not a fact. As does the issue of whether Taliban fighters fall under 4 A 1 or whether some other identifier holds sway. I’m not arguing that they do fall under the Conventions. Indeed, I’m not particularly interested in whether they do. My concern is that they should be treated as though they were entitled to such treatment until they are found not to be so deserving by a competent tribunal as required by the Conventions. > [@](#): > > I’m willing to concede that facts may exist in some cases that would create doubt as to the status of individual detainees, and hence entitle them to a tribunal determination under the GC, but ain’t nobody shown any facts so far that would do so. Do I understand you correctly - you are saying that it is up to these people (who are difficult circumstances) to _prove something_ to _create_ doubt? Surely there is doubt until there is evidence - at least \*some \* evidence. I understand it’s your government, but would you take “there’s no doubt in _our_ minds about their status, so we don’t have to have their status reviewed by a tribunal” as a **serious** response from a foreign force holding your troops? ---
**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 30, 2004, 6:39pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/51 "2004-06-30T18:39:17Z")
> [@hawthorne](#): > > My point was that - good or not - it remains an argument and not a fact. As does the issue of whether Taliban fighters fall under 4 A 1 or whether some other identifier holds sway. Sure. Legal conclusions aren’t really “facts” like whether somebody was wearing a uniform when taken prisoner. But legal conclusions are based on facts, which is why I’m referring to them here. > [@](#): > > I’m not arguing that they do fall under the Conventions. Indeed, I’m not particularly interested in whether they do. My concern is that they should be treated as though they were entitled to such treatment until they are found not to be so deserving by a competent tribunal as required by the Conventions. This is not an accurate description of the GC requirement. As stated above, the GC only requires a tribunal “if doubt arises” as to their status. Until you show me facts that establish there _is_ such doubt, you’re jumping the gun on the tribunal requirement. > [@](#): > > Do I understand you correctly - you are saying that it is up to these people (who are difficult circumstances) to _prove something_ to _create_ doubt? That’s correct, although for purposes of this discussion, I’ll be happy to consider any facts that you can demonstrate to create doubt. Please, if you have anything that says the Taliban wore fixed insignia recognizable at a distance, followed the rules and customs of war, and had an organized command structure, I would love to see it. > [@](#): > > Surely there is doubt until there is evidence - at least \*some \* evidence. But there _is_ plenty of evidence that Taliban fighters, at least in general, were basically _ad hoc_ mercenaries in civilian clothes who committed more than their fair share of war crimes and atrocities. My question is where the evidence is that shows these guys did _not_ fit that description. I’ll be happy to consider anything you have on that. > [@](#): > > I understand it’s your government, but would you take “there’s no doubt in _our_ minds about their status, so we don’t have to have their status reviewed by a tribunal” as a **serious** response from a foreign force holding your troops? Nope. But the nice thing about being America is that we can sort those sorts of things out via the 82nd Airborne, if necessary. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 30, 2004, 10:54pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/52 "2004-06-30T22:54:27Z")
> [@minty green](#): > > That’s correct, although for purposes of this discussion, I’ll be happy to consider any facts that you can demonstrate to create doubt. Please, if you have anything that says the Taliban wore fixed insignia recognizable at a distance, followed the rules and customs of war, and had an organized command structure, I would love to see it. > > But there _is_ plenty of evidence that Taliban fighters, at least in general, were basically _ad hoc_ mercenaries in civilian clothes … I refer you again to the GC. The insignia/rules & customs/command struture is merely one of the several headings under which persons are entitled to GC protections. Firstly, the threshold of ‘doubt’ is set low. It clearly cannot be a subjective inquiry into the mind of the US military. My opinion is that it is likely the mere assertion of entitlement to GC protection is sufficient to raise the doubt needed to obligate a tribunal, before those entitlements can be denied. In other words affording GC protection is the default. Practically, this is likely to be a stronger case given the time frames involved and the corresponding lack of ‘heat of battle’ imperatives. Secondly on reference to the GC, there are several headings that base an argument for raising doubt in the case of the Taliban and other captured persons. Many claim not to be combatants of any sort. Considering these factors: The several bases of possible entitlements; the low threshold needed to establish doubt; the practical opportunities to properly establish status; and the diverse character of detained persons. I believe the case for GC conventions to apply is very strong. Certainly a blanket denial at G-bay is unlawful. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [June 30, 2004, 11:05pm UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/53 "2004-06-30T23:05:24Z")
From the GC > [@](#): > > * * * > > 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… > > 1. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. > > 2. 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… - Plenty of basis for doubt under these headings. None of those requirements for a well-pressed uniform and lint-free banner under headings 1, 3, 4. ---
**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:** [July 1, 2004, 1:13am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/54 "2004-07-01T01:13:19Z")
(1) is inapplicable because the Taliban were not a “Party” to the Convention. (3) requires that they be “regular armed forces.” That requires such features as uniforms, command structures, and following the rules and customs of law (as per subsection 2). The Taliban were not exactly known for those things, so no luck here either. (4) requires an identity card issued by the armed forces, such as the one I had when I was a kid. I have never heard of any such ID cards with the Taliban. (The notion seems somewhat laughable, given that these guys were basically a rabble of illiterate tribesmen from the sticks.) Anyway, ain’t no doubt in this subsection either. Keep trying though. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [July 1, 2004, 1:52am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/55 "2004-07-01T01:52:01Z")
1. Doesn’t require that the Taliban be a party to the convention, merely Party to the _conflict_. In any case, Afghanistan _is_ Party to the GC. 2. Merely **Minty Green’s** unsupported intepretation. The better view is that Afghanistan/The Taliban can constitute their own regular armed forces however they wish. One may disagree, but with nothing like sufficient force to dispense with the “doubt” under consideration. Further, contrary to **Minty Green’s** assertion, the conditions applying in (2) requiring uniforms etc are omitted in (3) clearly indicating they do not apply. Note also that GC protections extend to “Militias & Volunteer Corps” in (1) adding further weight to the view that uniforms etc are not an important consideration in the Convention. 1. Again merely **Minty Green’s** supposition. It may seem laughable to **MG** , but that “seems” plainly allows room for doubt. Also it is the White House position that GC protections do apply to Taliban, although not Al Quaeda, [a position I agree with](http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html) > [@](#): > > In addition, President Bush today has decided that the Geneva Convention will apply to the Taliban detainees, but not to the al Qaeda international terrorists. Sadly however, the interrogation of Taliban at G-Bay is contrary to that Convention, and merits war crimes prosecution. [Another link](http://www.hrw.org/press/2002/01/us012802-ltr.htm) > [@](#): > > However, under the terms of Article 4(A)(2), these four requirements apply only to militia operating independently of a government’s regular armed forces - for example, to those members of al-Qaeda who were operating independently of the Taliban’s armed forces. But under Article 4(A)(1) these four requirements do not apply to “members of the armed forces of a Party to the conflict as well as members of militia … forming part of such armed forces.” That is, this four-part test would not apply to members of the Taliban’s armed forces, since the Taliban, as the de facto government of Afghanistan, was a Party to the Geneva Convention. The four-part test would also not apply to militia that were integrated into the Taliban’s armed forces, such as, perhaps, the Taliban’s “55th Brigade,” which we understand to have been composed of foreign troops fighting as part of the Taliban. Kindly refrain from insolence in future. ---
**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:** [July 1, 2004, 2:19am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/56 "2004-07-01T02:19:50Z")
> [@sevastopol](#): > > 1. Doesn’t require that the Taliban be a party to the convention, merely Party to the _conflict_. “Party” is capitalized, indicating that it is a defined term. In this case, the term indicated is High Contracting Party, which means a country/government that has signed onto the treaty. That’s an inherent part of the treaty, after all–we treat your guys okay, you treat our guys okay. If you _don’t_ agree to treat our guys okay, we don’t have to extend any courtesies to your guys. Note also that reading “Party” as anything other than “High Contracting Party” renders subsection (3) of Article 4 completely redundant of (1). > [@](#): > > In any case, Afghanistan _is_ Party to the GC. Correct. But which “Afghanistan”? The internationally-recognized “Afghanistan” at the time was the Northern Alliance folks, not the Taliban. > [@](#): > > 1. Merely **Minty Green’s** unsupported intepretation. The better view is that Afghanistan/The Taliban can constitute their own regular armed forces however they wish. One may disagree, but with nothing like sufficient force to dispense with the “doubt” under consideration. My view is better than yours, given that yours eviscerates the plain meaning and obvious implications of the phrase “regular armed forces.” Under your reading, any group of shmucks with a stockpile of arms and a hankerin’ for some killin’ gets to be “regular armed forces,” and that’s just silly. > [@](#): > > Further, contrary to **Minty Green’s** assertion, the conditions applying in (2) requiring uniforms etc are omitted in (3) clearly indicating they do not apply. So therefore, you just ignore the “regular armed forces” requirement altogether? Nope, my reading kicks your reading’s butt. > [@](#): > > Note also that GC protections extend to “Militias & Volunteer Corps” in (1) adding further weight to the view that uniforms etc are not an important consideration in the Convention. Uniforms, etc. are not an explicit requirement for (1), it is true. But it won’t exactly be news to anybody in the military that they can expect to be treated very badly indeed if taken prisoner while not wearing their uniforms. I suspect this has been a rule or custom of warfare for a very long time, and I don’t particularly see anything in the GC that alters it. > [@](#): > > 1. Again merely **Minty Green’s** supposition. It may seem laughable to **MG** , but that “seems” plainly allows room for doubt. > > Also it is the White House position that GC protections do apply to Taliban, although not Al Quaeda, [a position I agree with](http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html) You got suckered by the White House’s weasel words, I’m afraid. Although Ari Fleischer says “the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention,” the sentences immediately following clearly state that they are not POWs within the scope of the GC: > [@the White House](#): > > Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, al Qaeda and Taliban detainees would have to have satisfied four conditions: They would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war. > > The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda. > [@](#): > > Kindly refrain from insolence in future. Fat fuckin’ chance. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [July 1, 2004, 2:23am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/57 "2004-07-01T02:23:46Z")
You’ve lost this one wholesale **Minty Green**. No good swearing at me while you’re pinned on the mat. I’ll let you go now. ---
**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:** [July 1, 2004, 3:41am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/58 "2004-07-01T03:41:55Z")
After all the thrashing around in this thread about definitions, treaties, etc. it would appear that the assessment of the decisions given in the OP is pretty close, based on the analysis by the legal beagles on _The News Hour_ and other places. Experts like Douglas Kmeic of Pepperdine U. stress that the presidential power was upheld while others such as the Dean of Yale School of Law emphasize that the presidential power is subject to judicial review for due process and other considerations. The most extreme arguments of the administration such as the president having inherent power in war based on his consitutional Commander in Chief role appear not to be valid. _I.e._ the president is not the sole determiner of who gets jailed and the definition of why the jailing is OK. It is subject to judicial review and that’s a plus. Furthermore, most of the TV legal experts that I heard strassed that the ruling wasn’t based on the Commander in Chief powers, but on Congressional action which I would susupect is itself subject to judicial review if somebody brings and action to force it. As a plain old US citizen layman in the law I have not serious problems with the decision. Now we just need to see if the administration follows it or whether it pulls and Andrew Jackson. ---
**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:** [July 1, 2004, 3:48am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/59 "2004-07-01T03:48:18Z")
> [@sevastopol](#): > > You’ve lost this one wholesale **Minty Green**. “Declare victory and go home.” ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [July 1, 2004, 4:31am UTC](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556/60 "2004-07-01T04:31:32Z")
> [@minty green](#): > > “Declare victory and go home.” What an appetite for pain. **MG’s** is a losing position for a number of reasons. The main reason is that he has an emotional investment in the outcome. If the GC protections are established, it is likely friends and relatives of him, people he esteems, have acted in contravention and are properly described as war criminals. Conversely, I have no such investment in the outcome, chips fall where they may. So, while staying within the rules of this forum **MB** can hurt but cannot hurt me. To deal with the subordinate issue of the rational content of the argument: Recall that the threshold issue is establishing doubt. **MG’s** position is of academic interest and might be considered arguable. No-one however is plausibly arguing his position is established to the exclusion of “any doubt”. It is like in a criminal trial. **MG** faces the hurdle of proof beyond reasonable doubt. In fact a higher hurdle in this case, as the test is “any doubt.” Conversely, those opposing **MG’s** position need merely establish doubt. An effort that doesn’t raise sweat. As “any doubt” is established, the Guantanamo detainees are entitled to their tribunals to determine status. [Previous page](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556.md?page=2) [Next page](https://boards.straightdope.com/t/supreme-court-issues-decisions-on-guantanamo-and-terrorism-suspects/252556.md?page=4)