This piece of shit cannot pass! More foam-flecked Bush bashing.

[Gadarene]

“No law” but the Constitution itself, which is the supreme law of the land. Has SCOTUS ever ruled it does not apply to persons in U.S. military custody outside U.S. territory? Assuming it does apply unless SCOTUS says otherwise would seem to be the safe, default position, would it not?

The D.C. Circuit’s still in the process of resolving conflicting district court opinions on this question. Further argument has been scheduled in light of Hamdan, meaning that it’ll be that much longer before they issue their ruling…and those of us down in the district courts have to continue to deal with the GTMO cases with no real sense of how many, if any, constitutional protections should be afforded the detainees.

[elucidator]

Likely be resolved right about the time the last detainee dies of old age.

[ElvisL1ves]

@Gadarene

those of us down in the district courts have to continue to deal with the GTMO cases with no real sense of how many, if any, constitutional protections should be afforded the detainees.

Is there at least a widespread sentiment there about what the presumption ought to be in the meanwhile?

[Bricker]

@BrainGlutton

“No law” but the Constitution itself, which is the supreme law of the land. Has SCOTUS ever ruled it does not apply to persons in U.S. military custody outside U.S. territory? Assuming it does apply unless SCOTUS says otherwise would seem to be the safe, default position, would it not?

Yes, SCOTUS has previously ruled that full Constitutional guarantees do not apply to military tribunal cases - Ex Parte Quiren.

So the “default position” would be to assume that they don’t apply.

[Diogenes_the_Cynic]

@Bricker

Yes, SCOTUS has previously ruled that full Constitutional guarantees do not apply to military tribunal cases - Ex Parte Quiren.

So the “default position” would be to assume that they don’t apply.

But the default IS that the rules of the GC should apply.

[Bricker]

@Diogenes the Cynic

I read that as an opinion that something can be technically Constututional and still be ethically ahorrent or even be a betrayal of the spirit of the document if not the letter.

Of course.

And this is a good example. The Constitution odes not forbid this proposal. But it would be a terrible idea to enact. It would mean that the likelihood of an innocent person being punished would be unacceptably high, that the verdict of the military tribunal would be unreliable. That’s not what we, as a country, should want to support or stand for.

Has nothing to do with the Constitution. Still an abhorrent and terrible idea.

[Bricker]

@Diogenes the Cynic

But the default IS that the rules of the GC should apply.

Yes, but NOT the POW portion.

[John_Mace]

@Diogenes the Cynic

But the default IS that the rules of the GC should apply.

Depends on which article you’re talking about.

[ElvisL1ves]

@Bricker

Yes, but NOT the POW portion.

Oh, that’s right, those who do your thinking for you call them “detainees”, not prisoners. Care to explain the distinction for us? :dubious:

Sheesh.

[Diogenes_the_Cynic]

@Bricker

Yes, but NOT the POW portion.

The government first would have to prove they’re not POWs. The GC states that if there is any doubt as to status, they’re to be afforded all the protections of the Convention. SCOTUS has already telegraphed (IMO) that the circular tactic of claiming they can be treated as “unlawful combatants” because W has already decreed a priori that they are unlawful combatants is not going to fly. It’s like saying we don’t have to give due process to “guilty” people and then declaring “guilt” by nothing but decree.

[Guinastasia]

All right, fight my ignorance here-why doesn’t the Geneva Convention rules for prisoners of war apply to anyone ever captured? To my mind, that lets in a gigantic loophole for anyone to just label captives “unlawful combatants” or what have you, so you can torture them to your heart’s content.

[John_Mace]

@Diogenes the Cynic

The government first would have to prove they’re not POWs. The GC states that if there is any doubt as to status, they’re to be afforded all the protections of the Convention. SCOTUS has already telegraphed (IMO) that the circular tactic of claiming they can be treated as “unlawful combatants” because W has already decreed a priori that they are unlawful combatants is not going to fly. It’s like saying we don’t have to give due process to “guilty” people and then declaring “guilt” by nothing but decree.

I’m not so sure that’s how it works. I think they have to claim POW status, and then prove that they were, in fact, members of a regular army (or some other provision of the GC that pertains to POW status). Are all of these detainees even claiming that, or are many just saying they aren’t part of any army or resistance at all? In Mr. Hamdan’s case, for example, being ObL’s driver is prima facie evidence of membership in al Qaeda. We needn’t afford any member of al Qaeda POW status.

I don’t know why you would even want them to be treated like POWs, though. If they’re declared POWs, then we can detain them until the “war on terror” is over. And when will that be? Never.

[John_Mace]

@Guinastasia

All right, fight my ignorance here-why doesn’t the Geneva Convention rules for prisoners of war apply to anyone ever captured? To my mind, that lets in a gigantic loophole for anyone to just label captives “unlawful combatants” or what have you, so you can torture them to your heart’s content.

Quite simple. What if you capture a spy? Surely you know that spies are not afforded POW status, right?

The main issue at hand, though, is whether or not you can interrogate someone. And this isn’t just about torture. If these guys are POWs we couldn’t, for instance, offer better treatment to any of them who rats out terror plots or gives other information about terror organizations. Now, I’m not certain any of these Gitmo detainees has that sort of information, but that’s a function of the way the military captured these guys in the first place. There certainly are folks who have been capture, like Khalid Sheik Mohammed, who could give us valuable info. Again, I’m not endorsing the administrations position on torture, but you needn’t want to torture these guys in order to not want them to be POWs.

[ElvisL1ves]

@John Mace

We needn’t afford any member of al Qaeda POW status.

If they’re prisoners, and we’re at war like Bush claims, then ipso facto.

I don’t know why you would even want them to be treated like POWs, though.

We’re supposed to be better than them. We’re supposed to stand for something. That isn’t enough?

[Diogenes_the_Cynic]

@John Mace

I’m not so sure that’s how it works. I think they have to claim POW status, and then prove that they were, in fact, members of a regular army (or some other provision of the GC that pertains to POW status). Are all of these detainees even claiming that, or are many just saying they aren’t part of any army or resistance at all? In Mr. Hamdan’s case, for example, being ObL’s driver is prima facie evidence of membership in al Qaeda. We needn’t afford any member of al Qaeda POW status.

I don’t know why you would even want them to be treated like POWs, though. If they’re declared POWs, then we can detain them until the “war on terror” is over. And when will that be? Never.

I want them to be treated like civilian non-combatants, as the GC requires in the case of any doubt.

[elucidator]

@John Mace

I’m not so sure that’s how it works. I think they have to claim POW status, and then prove that they were, in fact, members of a regular army (or some other provision of the GC that pertains to POW status)…

They’ve not been afforded a chance to claim, or prove, anything. Some have been released, presumably innocent.

Besides which, shouldn’t Afghan citizens be afforded the presumption of resisting a foreign invasion? Are only uniformed soldiers legitimate?

[BrainGlutton]

@Bricker

Yes, SCOTUS has previously ruled that full Constitutional guarantees do not apply to military tribunal cases - Ex Parte Quiren.

The defendants in Quiren were German saboteurs who had crossed the U.S. border.

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.

The Gitmo prisoners never entered U.S. territory, “during time of war” nor, AFAIK at any other time.

Furthermore, specific charges were brought against the Quiren defendants:

On July 3, 1942, the Judge Advocate General’s Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications:

1. Violation of the law of war.

2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy.

3. Violation of Article 82, defining the offense of spying.

4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.

It was only those specific charges that could be argued to subject them to prosecution before a military tribunal. The Gitmo prisoners haven’t been charged with anything yet. “Violation of the law of war” would not stick without a clear showing we were at war at the time and they were supporting the “enemy.” And the “enemy,” I would argue, would have to be an actual state, not an underground criminal network such as al-Qaeda.

[John_Mace]

@elucidator

They’ve not been afforded a chance to claim, or prove, anything. Some have been released, presumably innocent.

Well, that’s what Congress is trying to do right now-- establish the procedures for the tribunals now that the SCOUTS had ruled that what the administration was doing was not authorized by Congress.

Besides which, shouldn’t Afghan citizens be afforded the presumption of resisting a foreign invasion? Are only uniformed soldiers legitimate?

Not in all cases, and I think you’ll find that not many (most?) of the Gitmo detainees captured in Afghanaistan are not Afghans. There are lots of Saudis, Pakisatanis, Yemenis, etc. at Gitmo.

But here’s the part of the GC that defines who gets to be a POW.

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:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

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:

1. 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.

2. 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.

[John_Mace]

Here’s the list of detainees. You’ll note that most of them are not Afghanis.

[Diogenes_the_Cynic]

How is their nationality relevant to their status?