Supreme Court Decisions

[Xantar]

From what I understand, the Geneva Conventions don't make any mention of "illegal combatants." So we don't know whether they apply or not. Actually, the term "illegal combatant" was coined by the Bush Administration in order to justify their system of detentions. Otherwise, anybody they detained would have to be either a criminal (in which case they are tried under the normal court procedures) or an enemy combatant (in which case the Geneva Convention does apply).

You also quoted only a small part of the applicable section of the Geneva Convention. The definition of a prisoner of war reads as follows:

Article 4

1. 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:
      • that of being commanded by a person responsible for his subordinates;
      • that of having a fixed distinctive sign recognizable at a distance;
      • that of carrying arms openly;
      • 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.
2. 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.

As you can see, any number of those items can arguably apply to the illegal combatants in question. I'm looking specifically at 1.3 and 2.1 but I'm not actually a lawyer so I don't know what an attorney might argue.

Also, I've read portions of the Supreme Court decision (not all of it because that thing is HUGE), and there are a couple important distinctions I think you've missed. The court did not exactly say that Geneva Conventions must apply to detained terrorists. What it said was that the treatment and prosecuting of detainees in keeping with the President's war powers must follow the Uniform Code of Military Justice since that is what Congress passed. The Geneva Conventions are written into the UCMJ, so when the Executive detains people, it must follow the established procedures (including open court martials and certain rules of evidence and so on). You are correct that the decision of whether and how to apply the standards of the Geneva Convention to illegal combatants is up to the Congress (at the behest of the Executive). However, the Supreme Court's point is that Congress did not make any decision one way or another regarding the Bush Administration's detainment policies. President Bush decided on his own to veer away from the Geneva Conventions and thus the UCMJ, but the Court ruled that just because Congress took no action on the issue doesn't mean that the President can decide it for himself.

So basically, the Supreme Court ruled that President Bush needed to get permission from Congress in order to treat prisoners in ways that were not in accordance with the UCMJ. As far as this decision is concerned, an act of Congress will cure the problem. Of course, then that will probably bring another lawsuit before the court, but we shouldn't speculate about that here.

So in reality, the Court's decision doesn't have anything to do with enacting a treaty between the U.S. and Al Qaeda. Rather, it is a question of balance of powers and who gets to set our policy. I would also note, by the way, that certain parts of the Geneva Accords are considered to be binding treaties between the U.S. and the rest of humanity. The logic is that the U.S. promised most of the other countries of the world that it would treat prisoners in a certain way and in return other countries promised each other and the U.S. that they would treat all of their prisoners in a certain way. Whether Al Qaeda itself was a party to the treaty or not is only relevant to portions of the Accords which specifically say that they apply only to signing parties.

P.S. I miss these discussions.

[Professor S]

I was under the impression that the decision directly referenced the Geneva Convention, but my point still stands because the GC are used in the military rules and are STILL being misinterpreted. BTW, I refer to them as illegal combatants as my own term to describe those that do not fall under the GC. I never meant the say that the term was included in the GC.

I am aware of the entire document, but I only quoted the part that SPECIFICALLY EXCLUDES those detained by our policy because I know no one would want to read the whole thing. These areas that are bullet pointed are put in place for a reason:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.

The fixed distinctive sign and conduct portions exclude most of those that we detain. That said, if we are detaining any that did follow all of the GC rules, then they should be provided the protections. There might be areas in the GC that could be interpreted to protect these illegal combatants... if these bullet points didn't specifically exclude their protection. Now in a document that is a bit ambiguous, don't you think that such specific exclusions were put in place for a reason and with purpose? I have to think that they are full in the spirit of the document.

Also, referring to the contract with humanity, once again I'll bring up the specific exclusions. We signed a treaty with humanity, not terrorists who refuse to follow the codes given. The GC even gives the ability for rebels and resistance fighters to be recognied by its articles, but those that we are fighting ignore them and refuse to operate under insignia or proper conduct. If they refuse to follow the rules of the GC, why should we be expected to operate under a disadvantage and respect their rights under it?

BTW, what are your thoughts about the imminent domain decision to allow private companies to force you to sell your property? Seems like a recipe for extreme corruption and abuse to me, all in the name of higher local government revenues. Dispicable (and I don't use that word often).

[Xantar]

Originally Posted by Professor S

I am aware of the entire document, but I only quoted the part that SPECIFICALLY EXCLUDES those detained by our policy because I know no one would want to read the whole thing. These areas that are bullet pointed are put in place for a reason:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.

The fixed distinctive sign and conduct portions exclude most of those that we detain. That said, if we are detaining any that did follow all of the GC rules, then they should be provided the protections. There might be areas in the GC that could be interpreted to protect these illegal combatants... if these bullet points didn't specifically exclude their protection. Now in a document that is a bit ambiguous, don't you think that such specific exclusions were put in place for a reason and with purpose? I have to think that they are full in the spirit of the document.

Those bullet points aren't meant to exclude anything. The overarching paragraph says, "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." Your bullet points describe one of the categories of detainees, but there are many other possible categories which is why I referenced the entire section of the Accords. As I pointed out, detainees arguably belong in one of the other categories which includes, "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Paragraph 2.1 could also be argued to apply although I don't seriously think the Supreme Court would accept that.

Also, referring to the contract with humanity, once again I'll bring up the specific exclusions. We signed a treaty with humanity, not terrorists who refuse to follow the codes given. The GC even gives the ability for rebels and resistance fighters to be recognied by its articles, but those that we are fighting ignore them and refuse to operate under insignia or proper conduct. If they refuse to follow the rules of the GC, why should we be expected to operate under a disadvantage and respect their rights under it?

Because we're better than them. And before you say it, yes I am willing to allow more of us to be killed for that reason. If we are all fighting the war on terror in order to preserve our liberties, we should all be willing to lay our lives on the line to protect those liberties and ideals. And really, I don't mean to be glib, but this war on terror is pretty small potatoes as wars go. And besides that, I don't see how requiring all testimony to be sworn and requiring that every detainee must have a specific charge is going to make another terrorist attack more likely.

But that's a difference in philosophy, and although I think I understand where you're coming from, all of that is not the issue here. As I said before, the Supreme Court did not specifically make a decision about whether the Geneva Conventions apply to detainees under the unlawful combatant label. It said that the decision whether or not to apply those standards is properly made by the Congress. Congress may decide collectively that it agrees with you and that illegal combatants do not receive protections under the Conventions. This is pretty typical of the Supreme Court, actually. Particularly when its members are as divided as they are now, the Supreme Court tends to base its decisions on little procedural issues like this rather than trying to make some kind of ethical statement. I have the feeling that Anthony Kennedy wouldn't have joined into the majority if the decision had been "the camps must go."

BTW, what are your thoughts about the imminent domain decision to allow private companies to force you to sell your property? Seems like a recipe for extreme corruption and abuse to me, all in the name of higher local government revenues. Dispicable (and I don't use that word often).

I have no idea. I've heard nothing about this decision. Is there a link I could look at?

[Professor S]

Originally Posted by Xantar

"Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Paragraph 2.1 could also be argued to apply although I don't seriously think the Supreme Court would accept that.

I still think you are arguing ambiguity against specificity. What government are these insurgents professing allegiance to? Also, what armed forces are these people members of? What specific organization, if not government, are they allied to? Your arguments for including them are based on language which you can literally applyto anyone. You could apply your arguments to organized crime if you worded it right and chose to make that argument. I feel like your taking the Devil's Advocate argument and trying to defend its creation into policy, while ignoring the spirit of the document and intentions of its creators.

Because we're better than them. And before you say it, yes I am willing to allow more of us to be killed for that reason. If we are all fighting the war on terror in order to preserve our liberties, we should all be willing to lay our lives on the line to protect those liberties and ideals. And really, I don't mean to be glib, but this war on terror is pretty small potatoes as wars go. And besides that, I don't see how requiring all testimony to be sworn and requiring that every detainee must have a specific charge is going to make another terrorist attack more likely.

I used to think this way too, after everything I've even and read I just don't think these people care. They are looking for excuses to continue the struggle, just like the Israel situation. The biggest danger to these extremists is the resolution of their fight. The struggle is all they have.

But that's a difference in philosophy, and although I think I understand where you're coming from, all of that is not the issue here. As I said before, the Supreme Court did not specifically make a decision about whether the Geneva Conventions apply to detainees under the unlawful combatant label. It said that the decision whether or not to apply those standards is properly made by the Congress. Congress may decide collectively that it agrees with you and that illegal combatants do not receive protections under the Conventions. This is pretty typical of the Supreme Court, actually. Particularly when its members are as divided as they are now, the Supreme Court tends to base its decisions on little procedural issues like this rather than trying to make some kind of ethical statement. I have the feeling that Anthony Kennedy wouldn't have joined into the majority if the decision had been "the camps must go."

So you're saying that Congress is given the power to determine the fate GITMO and GC interpretation? I'll have to look into that. While this does enter in a little into the Comander and Chief powers, I'm not necessarily against such a ruling.

I have no idea. I've heard nothing about this decision. Is there a link I could look at?

Look it up, lazy. It was a pretty big deal not too long ago.

[Xantar]

I still think you are arguing ambiguity against specificity. What government are these insurgents professing allegiance to? Also, what armed forces are these people members of? What specific organization, if not government, are they allied to? Your arguments for including them are based on language which you can literally applyto anyone. You could apply your arguments to organized crime if you worded it right and chose to make that argument. I feel like your taking the Devil's Advocate argument and trying to defend its creation into policy, while ignoring the spirit of the document and intentions of its creators.

Who knows what the intentions of the creators were? I could just as well say that you place far too much emphasis on a uniform as criteria for whether or not someone should be waterboarded. And maybe the Geneva Conventions were meant to be vague with regard to its definition of a prisoner of war.

I don't know. I'm not a lawyer yet, and I don't claim to be able to read the Supreme Court's mind. But I just don't think that the mere fact that terrorists claim allegiance to a loose network of cells rather than a fully organized government is a reason to throw out several decades of time-tested and formulated law in the form of the UCMJ and Geneva Convention and make up brand new procedures based on a new definition of the enemy. Do our policies have to be modified? Arguably so. But to take a step back from interpreting the Court's decision for a second, I personally think that the Bush Administration went about it totally the wrong way. There was too little debate about their detainment policies and afterwards there was too little information being given about how many people were getting indicted or charged or released. Major decisions like this can't be trusted to one administration, no matter how wise it is.

I used to think this way too, after everything I've even and read I just don't think these people care. They are looking for excuses to continue the struggle, just like the Israel situation. The biggest danger to these extremists is the resolution of their fight. The struggle is all they have.

Well, first of all, if you're right then I don't understand the wisdom of trying to take the fight to their home land. But more importantly, I'm not concerned with how the terrorists see us. As you pointed out, they will see us as the Great Satan regardless. However, with the erosion of global prestige comes vastly decreased diplomatic power. If war is supposed to be the option of last resort, then we should be ensuring that our position of negotiation is as strong as possible. If we want to be the world's policeman, then we should hold ourselves to a higher moral standard than anybody else. Otherwise, who will care to listen to us?

Look it up, lazy. It was a pretty big deal not too long ago.

Oh fine. I was hoping you could at least give me a case caption. Anyway, I assume you're talking about Kelo v. New London. I read a few hastily thrown together opinions by a judge and a professor, so I won't claim to understand what the hell is going on. The issue here is that eminent domain is an established power of the government. And a previous decision established that a local government can in fact seize a property through eminent domain (although as always it must pay the market price for that property) and then give it over to a private company. I think that New London in this case decided on its own to seize some land and develop it for Pfizer. Had Pfizer asked the town to exercise eminent domain, we'd be in a different boat.

But I'm open to changing my mind on that point because, as I said, I don't feel I've read enough about it.

The main point I want to make is it sounds like rather than actually approving of the seizure, the Court refused to nullify it. I don't know what the Court thought about New London's plan as far as its economic merit, but courts generally don't like to flat out rule against a property condemnation. There's too much precedent to do that lightly. And instead of getting the judicial system mired in the details on a case-by-case basis, the Supreme Court simply overruled the challenge. If that means Congress and state legislatures start moving to limit the impact of the decision as much as possible, I don't think that would bother the Court very much.

Again, I don't know whether I agree with the decision or not. However, what I've read seems to indicate that people in the legal community were not terribly surprised by the decision and that the legislatures and the media were the ones who made a big deal out of it.

[Professor S]

Originally Posted by Xantar

Who knows what the intentions of the creators were? I could just as well say that you place far too much emphasis on a uniform as criteria for whether or not someone should be waterboarded. And maybe the Geneva Conventions were meant to be vague with regard to its definition of a prisoner of war.

You say they were meant to be vague, but in in what I pointed out they WEREN'T. There is NOTHING vague about that criteria. Also, whether or not prisoners are being waterboarded has NOTHING to do with what I'm talking about. I'm talking about who is covered by the GC, and not about any specific violations. What I'm concerned about with this ruling is 1) reduction of executive powrs for political reasons and 2) letting ethnocentric sensibilties hamper us during a brand new war that has less to do with nations and more to do with ideals and ways of life. They are not covered under the GC, they are specifically denied coverage, and id waterboarding one terrorist saves one marines life, waterboard like mad.

I don't know. I'm not a lawyer yet, and I don't claim to be able to read the Supreme Court's mind. But I just don't think that the mere fact that terrorists claim allegiance to a loose network of cells rather than a fully organized government is a reason to throw out several decades of time-tested and formulated law in the form of the UCMJ and Geneva Convention and make up brand new procedures based on a new definition of the enemy.

Yes, it is. This is a brand new kind of war and we can't let DATED regulations that assume civized actions on a war that is half military and half police action. I don't think the writers of the GC had any clue what the war on terrorism would be like or imagined nationless wars with nothing to do with national borders. I do know that they intended to GC to only cover those that represented these things, because it is the only part of the GC that is written in plain english. Whether you sympathize or want to rad it that way is irrelevant to me.

Well, first of all, if you're right then I don't understand the wisdom of trying to take the fight to their home land.

Because if we don't, they will take it to ours. Look at Israel. They tried. They pulled out of Labanon and Gaza and what happened? Plaestine elected Hamas as their government and ATTACKED FROM THE AREAS ISRAEL RETREATED FROM. Lebanon has also attacked from the areas that Israel gave back. Peace is the greatest horror terrorism knows. Over-anlysis of something so black and white as terrorism leads to inaction and inaction allows bigger and more hideous acts to take place. We ignored Osama for years hoping he'd just go away and instead we allowed him to organize the killing of 3,000 US citizens. And I really don't care about the whole "holy land" defense of his actions. Thats an excuse for blind violence, not a reason.

But more importantly, I'm not concerned with how the terrorists see us. As you pointed out, they will see us as the Great Satan regardless. However, with the erosion of global prestige comes vastly decreased diplomatic power. If war is supposed to be the option of last resort, then we should be ensuring that our position of negotiation is as strong as possible. If we want to be the world's policeman, then we should hold ourselves to a higher moral standard than anybody else. Otherwise, who will care to listen to us?

You still think this can all be resolved by talking about it, and dialogue has done nothing for 30 years. Since the West gave the Middle East the means to kill us with oil money, they have been trying to. They've attacked embassies, embassadors, ships and civilians. They've taken hostages and grandstanded for the world media. NOTHING has CHANGED.

I've said this for a while now and there are only two resolutions to this cultural conflict. 1) An Islamic reformation, which it is badly in need of, or 2) A complete subjugation of one people by the other. The cultural war is coming, and its coming soon. My original estimate was in 50 years, and then I ratcheted it down to 10.

Thoughtful discussion and diplomcy normally works, but how has it EVER WORKED IN THE MIDDLE EAST? It never will until the westernized form of it exists. It needs to recognize the separations between the religious and secular. They need to start believeing in NATIONALISM as well as their faith. They also need to honor and respect other faiths and governments other than their own.

But I think its too late for that. The Islam that we've grown to know and hate has reached a tipping point across the world, especially in Western Europe. Doubt me if you wish, oir cal, me a nutbag, but just wait and see. The world is going to have to choose what side they want to support and support it with arms and the blood of their people.

Now I've gone and depressed myself. I'm done talking about it.

[KillerGremlin]

One day Santa will reclaim his place as king of England and the Middle East will bow down to the great and mighty duck people.