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).
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. Here’s the relevant discussion:
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.
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.
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.
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.)
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.
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.)
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.
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.
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?
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.
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?
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.
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.