Balkinization  

Tuesday, June 05, 2007

Hamdan on the Heels of Khadr

Marty Lederman

Just as in the Khadr case, in the Hamdan case yesterday, Judge Allred dismissed the charges for lack of jurisdiction.

And just as in Khadr, the ground for dismissal was that there has not been the required determination that the defendant is an "unlawful enemy combatant," as that term is defined in section section 948(a)(1)(A)(i) of the MCA. Unlike Judge Brownback in Khadr, however, Judge Allred did not hold that the military commission could not make such a determination. Instead, he appears to have reached the merits of the question, and simply concuded that the government had failed to bear its burden of showing that Hamdan is an unlawful combatant. In particular, the government failed to present any evidence that Hamdan (bin Laden's driver) has engaged in or materially supported hostilities against the U.S. or its allies, as section 948(a)(2)(A)(i) requires. Nor did the government demonstrate that the Pentagon has made a finding of unlawful combatancy, as contemplated in the alternative subsection (948(a)(2)(A)(ii)) of the MCA's definitional provision.

Much more from Bobby Chesney here.

Comments:

What I found interesting in Judge Allred's decision is it implies that the standards set by Congress to define an "unlawful enemy combatant" for the purposes of military commission trial under the MCA are more stringent than the standards otherwise required to simply detain a capture as an unlawful enemy combatant.

Essentially, we now have three potential definitions of "unlawful enemy combatant" which get progressively more strict - the negative definition of combatants who do not fall under the definition those entitled to POWS established by the Geneva Conventions, the standard established by the executive in 2004 for wartime detention and now the 2006 MCA definition for those captures to be tried as war criminals by military commission.

An interesting question is whether the executive (or some future Congress) will amend the standard used for detention by adopting the MCA definition for all proceedings.
 

Bart spake, re: MCA, here: ...then the proper venue for bringing my habeas petition is federal court because the MCA has not stripped my rights as a US citizen.

But then he cut and ran to a new thread, in typical cowardly fashion. Here's the reply he's avoiding:

So you want to take that one for another spin? Any time.

Bart, pray tell, under any scenario, good-faith or the personalized one I had to create in the first place to get you to respond to my initial efforts many months ago, pray tell, once a person is picked up and designated an AUEC under the MCA, pray tell what guarantees that anyone will know the person has been so detained? What part of the MCA prevents the government from, in good faith mistake or as an act of political oppression, picking up anyone, putting them in a hole, without any notice given to anyone? Hmm? Because if the MCA lets the government pick people up and throw them in a hole without telling anyone, which in your own words it does, I don't see how that person gets to challenge habeas in any court at all.

None of which is news to you, you cowardly, lying cheat. You've been presented this one before and you know it. You simply can't accept that your dearly cherished partisans have put in place your dearly cherished MCA and in so doing have effectively created rules fully legalizing the most draconian of political abuses. Grow up. It is what it is, and you are clearly pleased with it. Just stop lying, to us or yourself, that a person picked up under MCA, properly, in good faith mistake, or as an act of political oppression, is guaranteed a chance to contest their designation in any court. You know better. And I keep thinking you can do better. Do I give you too much credit? So it would seem.


You also, troll, owe responses here and here, to name two. It is this kind of intellectual pusillanimity which earns you the adjective "cowardly" and "cheat". Wear them well.
 

There is the exception that the MCA's language gives blanket definition of unlawful enemy combatant to Taliban, Al-Qaeda, and associates. This appeared to be an attempt to shortcut the pre-February 7, 2002 arguments of the Department of State Legal Adviser that at least Taliban had Geneva III Article 4 POW status. Three definitions overlayed with this distinction between Geneva and US law suggests a terribly confusing legal scheme - for what purpose?
Best,
Ben
 

One interesting point that hasn't gotten into general circulation:

The problem of the wording of MCA ("unlawful enemy combatant"), which tripped up the Khadr and Hamdan prosecutions, was not present in the original draft. The original draft was very careful in defining who could be tried, and the essential definition was any "enemy combatant" who had not been classified as a "lawful combatant".

In a later draft, the careful/lengthy definition of the original was abbreviated and changed to "unlawful enemy combatant", a term the CSRT never employed.

It's possible, perhaps likely, that the haste with which Republican Hill staffers tried to push that legislation through caused them to incautiously streamline the original wording and insert "unlawful" out of sheer bungling.

I'll comment on this in more detail at Unbossed if/when I figure out what I think these rulings signify.
 

Robert, et al:

The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.
 

Bart said:

You may want to go up to the new thread on the more detailed Hamdan decision.

# posted by Bart DePalma : 1:26 PM


Bart, you invited the posters here, you deal with them here.

(side note, the text verification was bsstraw--probably two of Bart's favorite logic constructions)
 

"Bart" DePalma:

An interesting question is whether the executive (or some future Congress) will amend the standard used for detention....

Yes, an interesting question. Do you think the maladministration will do it through a delayed, retroactive "signing statement", or just by ignoring the law?

Cheers,
 

Bart: go over to this open thread I have set up for that purpose over on my blog.

[crowd roars with derisive laughter]

You really do put the coward in pusillanimity, and this is without a doubt your lowest moment. Challenged repeatedly, followed as you run from thread to thread, the best you can do now is pray to take your drubbing in a smaller, less well lit venue? Coward, coward, coward. I thought you were a soldier. Stand your ground and take your lumps, or get the hell out.

And, for the love of whatever Islamophobic, torture-loving God you worship, don't try to blame your lily-livered yellow streak on our hosts. That's an insult to them and yourself.

It's true, the kind of tactics required to reign in a vandal like you take a strong stomach. Professor Tamanaha alludes to such issues obliquely in his post of March 16, here, but one of the points that came up during that time was the difficulty in dealing with ill-faith vandals such as yourself who are unarguably skilled at giving the appearance of academic exchange but who in truth only engage so as to further some cock-eyed partisan agenda.

So, in short, no, you will have to take your lumps here, and no, you can't claim politeness due our hosts as your reason for turning your craven tail in flight. There's a fair few of us waiting for answers in the venue where you first engaged us, and if you really gave a damn about our hosts you would grow a spine and stop stonewalling when you're on the ropes.
 

Bart: An interesting question is whether the executive (or some future Congress) will amend the standard used for detention by adopting the MCA definition for all proceedings.

Another interesting question is whether there is anything in the text of the MCA which prevents, either in good faith mistake or as an act of political oppression, the "disappearing" of a detainee. That is, is there anything within the text of the MCA to rule out picking up someone off the streets, declaring them an AUEC, letting them sit in a hole without ever convening a commission, and doing so without ever notifying anyone this has been done?

As to the point about never convening a commission to establish the status of a detainee, I quote you, Bart, saying here:

The US can legally hold alien enemy combatants for the duration of the conflict. Given this will most likely be a multi generational conflict like the Cold War, this detention is effectively a life sentence. Thus, the only reason to go through a trial is to impose a death sentence.

Admittedly, your remark above was originally offered in the combined context of MCA discussions and FBI involvement at Guantanamo. But the question remains, what in the MCA precludes detaining a person absent notification of kin or counsel, coercing testimony from them, denying them even Common Article 3 level of humane treatment, denying them the right to confront witnesses or know the evidence against them, then indeed designating them an AUEC? So far no one has been able to find anything in the text of the MCA which prevents it from being used thusly either in good-faith error or as a tool of political oppression. And if your only answer is, "I'm a citizen, I have rights," can you imagine, either in a good-faith error scenario or a political-oppression scenario, just how well that would go over with the agents doing the detaining?
 

To our hosts:

Sorry about my stalkers. I tried.
 

I would disagree with the use of the extent of the defendant's corroboration (collaboration?)with the enemy to determine whether the speech itself is protected under the 1st Amendment. Rather, the questions of fact of whether the defendant intended to provide aid and comfort to the enemy and whether the speech in fact provided such aid and comfort should be left to the jury in a treason trial.

I would suggest that the 1st Amendment should treat propaganda like slander or libel. If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment.

Under this construct, treason would include an American citizen who intentionally broadcasted to two witnesses a statement of fact which he or she knew was false and which he or she knew provided aid and comfort to the enemy.

In sum, treason should include American citizens providing aid and comfort to the enemy on their own initiative. As to the actual damage done by the treason, I do not see the effective difference between the identical enemy propaganda broadcasted by an American citizen on his or her own initiative or in coordination with the enemy. American citizens spreading lies with the intent to destroy the war effort and give victory to the enemy in a war are traitors.

# posted by Bart DePalma : October 13, 2006 9:00 AM


Bart,

You treat Treason as if it is a law enforcement problem. Isn't it best dealt with pursuant to the President's power to perteck uhmerika?

Sorry to be so blunt, but it is impossible to have an adult conversation with you Bart. You are simply wrong in your understanding of basic concepts. Because of that everything you say, valid or invalid, is tainted by your reputation as an unreliable source.

Contrary to your secret suspicions, you would not be greatly missed.
 

well, i would miss you a little bit, but only because i found your childish refusal to accept reality fascinating see up close.
 

"Bart" DePalma puts on the thin veneer of faux civility:

To our hosts:

Sorry about my stalkers. I tried.


You should apologise to those that you insult by ignoring their arguments and refutations. You don't believe in discourse, and by refsing toengage in such, you in fact destroy threads far more effectively than the occasional Carlinism. Maybe this is your purpose, maybe not, but the effect is the same.

You would serve everyone better by taking your own soliloquies over to your "open thread" where they will serve much the same purpose, while leaving us here to argue actual law and policy.

Cheers,
 

"Bart" DePalma (from Garth's quote):

If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment....

You mean, like this?

Well, maybe we don't have to try "Bart" for treason (or even slander). Maybe we can ask that he simply refrain from clogging bandwidth further until he apologises for his mistakes of fact (and that was only one example of many).

Cheers,
 

Bart: Sorry about my stalkers. I tried.

An interesting diversionary gambit. Suddenly you care about the good-will of your hosts. Maybe getting the boot at Glenn Greenwald's taught you that lesson, even if you only seem to recall its importance when you are trying to weasel your way out of a tight spot. As I said before, if you really gave a damn about your hosts you would grow up and learn the rules of honest academic exchange. I'll give you a hint, chickening out when you are on the ropes isn't part of such exchange. Neither is trying to mask your cowardice with breathless concerns over decorum and the genteel sensibilities of your hosts.

Another nice flourish is the rhetorical thuggery whereby the many people you have treated so shoddily are cast as "stalkers." That would seem to let you off scot-free, as if it's not that you run from the fights you inevitably lose on older threads, it's just that you are too busy and important to follow up on the implied social contract created by engaging someone in conversation. You abuse the asynchronous nature of the medium quite to your advantage, and it is probably quite distressing for you that so many hours have gone by without a new post arriving for you to flee to. Garth, Arne, PMS_Chicago, none of these folks are "stalking" you, they are simply trying to hold you to the level of discourse you pretend to desire. You speak very strongly and derisively...until you are in a losing position. Then you tuck tail and run. These folks, like me, have chosen to disallow that particular trolls-game. Your pathetic mewling above only shows how much you rely on this puerile trick.

So, no, your apology cannot really be taken in good faith, and, no, it isn't the case that you are being unfairly hounded and that you have tried to save the decorum of this venue. It is instead the case that you haven't the moral stamina or intellectual depth to stand up and take what is coming to you. And the truly saddest part is that, and I think I speak for all parties here, you clearly have passion and energy and are an articulate advocate. It would be a blessing to have you truly participate with us. But what you do is not of that nature, and you seem singularly incapable of legitimate discourse.

Pity.

A final thought on the tactics of sophists. It sometimes suffices to goad the opponent into apoplexy while maintaining a calm face. I recall how Bart tried to wield this particular tool to his benefit in his reply to my oft-linked post of January 18 (the "cowardly, lying cheat" rant.) He "apologized" for upsetting me, and probably thought this is how he got off the hook for answering to me at the time. He is, of course, attempting a similar strategy here, returning a meek-seeming handful of words for the several strong paragraphs that have been used to challenge him. I take time to point out this tactic because it truly is formidable. One of the primary tools of a Bill O'Reilly or Sean Hannity is to place their opponent in the double bind of accepting some unacceptable position or calling the foul, to which the sophist replies, "Don't be so sensitive." It's a variation of attack to the person, an age old stand by when one's substantive arguments have run Sahara dry. One would think it no longer effective, but the fact that Bart trots it out so regularly implies it has worked for him at some point sufficient to reinforce it in his behavioral lexicon.

I don't know how one ever outgrows such bad habits of thought.

Meanwhile, we're still waiting for the answers you owe in the venue where you owe them. Man up.
 

Addendum: I trust my esteemed hosts will understand I do not presume to speak for anyone but myself with regards to the acceptability of Bart's apology. That it seems to me naught but a face saving construct in no way prefigures anyone else's response.

Peace.
 

Bart cuts and pastes:
The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.


A cut and past of this message has appeared more than once in just causal readings of the discussions here. He is trolling (postings that lower the caliber of discussions and when confronted with his nonsense, stopping all participation or simply denying) and then advertising for his blog, possibly to increase hits and potential revenue, on this forum. It should be disallowed, and I think blogspot may have a way to report and complain.

Technically, this kind of thing borders on "comment spam". Its one thing to have a link in a comment to content elsewhere or to personally invite others to a forum where there is actual relevant content, and another to cut-and-paste postings with the clear intent to drive traffic to a different forum.
 

bitswapper:

[Bart cuts and pastes]:
The professors have been good enough to invite us here and only ask that we stay on topic. If you want to discuss another topic with me, show some consideration and go over to this open thread I have set up for that purpose over on my blog.

A cut and past of this message has appeared more than once in just causal readings of the discussions here. He is trolling (postings that lower the caliber of discussions and when confronted with his nonsense, stopping all participation or simply denying) and then advertising for his blog, possibly to increase hits and potential revenue, on this forum.


The most bizarre part of this spamming is that there's plenty of people that do want to actually discuss things with "Bart" in a reasonable back-and-forth exchange. "Bart" is the one that cuts'n'runs to new threads when it gets too hot, who ignores requests for cites or supporting evidence to back up his all-too-frequent bald assertions, who doesn't even bother to correct outright errors when such are pointed out, and who will never try to see what someone else is trying to say but instead turns such into "straw men" if acknowledged at all.

Yes, we'd like to discuss things. Maybe "Bart" can be convinced to join the party ... but juding from his long history at Greenwald's blog which eventally got him banned, and his history here, I suspect not.

FWIW, I'd note in passing that "Bart" has never apologised to me for lying about what I said, when I told him that such a claim by him was wrong, and asking for an apology. The least civility should begin with such a gesture.

Cheers,
 

Insightful commentary. The rulings do appear to be at odds with each other. Further findings of fact and findings of law would have been much more helpful in the COL Brownback opinion to tease out the source of this "Congressional intent" that "clearly" envisions a bifurcated system.

One would think the mere fact that RMC 905(c)(1) and (2)(B) require the Government -- intra Commission -- to demonstrate jurisdiction by a preponderance of the evidence, evinces Congress' intent that a mini-trial was a contemplated possibility. 905(c)'s context is wholly establishment of "factual issue[s]." If a military member's military status were certain to the Government, but unclear according to the defense, a mini-trial would foreseeably ensue to determine whether or not, for example, the term of enlistment was correctly stated on the charge sheet--a mini-trial which could become quite extensive. COL Brownbeck's opinion doesn't make clear how Congress intended the Commission process to differ from standard courts-martial, other than the self-evident post-2006 CSRT "dispositive" exception. That does not address the second jurisdictional option under the MCA.

Discussion to Rule 202(b) appears to envision the mini-trial state of affairs: "The M.C.A. does not require that an individual receive a status determination by a C.S.R.T. or other competent tribunal before the beginning of a military commission proceeding. If, however, the accused has not received such a determination, he may challenge the personal jurisdiction of the commission through a motion to dismiss." While not binding, it's a reasonable reading of the MCA's lack of requirement of a CSRT determination on the one hand, and a word-for-word reiteration of the MCA's definition of UEC under 10 USC sec 948a(1).

H Lime
http://hlime.wordpress.com
 

Brad imitates Tom Sawyer's expertise in whitewashing --

"What I found interesting in Judge Allred's decision is it implies that the standards set by Congress to define an "unlawful enemy combatant" for the purposes of military commission trial under the MCA are more stringent . . . ."

That's what happens when democracy- and law-rejecting extremists, led by a non-lawyer MD who unethically "disagnoses" without bothering with medical chart or actual examination of the patient, viewing justice not as due process but as vengeance, articulate their notion of "law-'n-order": they invariably blow it because already positioned in opposition to Constitution and rule of law.

And we can rely on lickspittle Bart to attempt to lie anti-Americanism into the most loyal of patriotism.
 

Bart stabs himself in the back, offers himself for hanging --

"I would suggest that the 1st Amendment should treat propaganda like slander or libel. If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment."

That would obviously include the knowingly false propaganda you spew here (and doubtless elsewhere).

I'll agree to exchange your petard by means of which you hoisted yourself for a hanging noose.

"Under this construct, treason would include an American citizen who intentionally broadcasted to two witnesses a statement of fact which he or she knew was false and which he or she knew provided aid and comfort to the enemy."

We have more than two witnesses to your broadcasting of knowingly false propaganda which you know provides aid and comfort to the enemies of the US who currently occupy the executive branch.

"In sum, treason should include American citizens providing aid and comfort to the enemy on their own initiative."

We already knew you weren't under any compulsion to knowingly spew your lies against your country.

"As to the actual damage done by the treason, I do not see the effective difference between the identical enemy propaganda broadcasted by an American citizen on his or her own initiative or in coordination with the enemy."

Thank you. Thus it isn't necessary that you spew your knowingly false anti-American propaganda with in accordance with instruction from Bushit, et al.

"American citizens spreading lies with the intent to destroy the war effort and give victory to the enemy in a war are traitors."

Thank you admitting your effort to destroy the "war effort" to bring the treasonous Bushit criminal enterprise to justice.

As for those you lie against, and the Constitution you trash: "Dissent is the highest form of Patriotism." -- Thomas Jefferson.

"Bart DePalma : October 13, 2006 9:00 AM"
 

One point which has thus far gone missing - in Captain Allred's decision, and in the conversation here - is the intersection between the definitions of "enemy combatant," "unlawful enemy combatant" (defined in the MCA), and "prisoner of war" (defined in the Geneva Conventions).

A series of short pieces in the Yale Law Journal have recently addressed this question, and the related question of which kind of non-AIII tribunal is competent to make such determinations.

For anyone who is interested, PDFs are available on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=972356) and directly on the Yale Law Journal webpage (http://www.yalelawjournal.org/pdf/116-3/Blocher.pdf).

A brief critical response, also published by the YLJ, is available here: http://yalelawjournal.org/2007/04/11/corn_jensen_watts.html

In brief, I argue in my original comment that the definitions of "enemy combatant" and "prisoner of war" actually overlap, and thus a finding that someone is an enemy combatant does not disprove - and in fact *supports* - a finding of POW status. Thus the CSRTs's findings (or those of a military commission applying the enemy combatant definition) cannot stand in for the "competent tribunals" referred to in Article V of the Geneva Conventions.

The response to my comment takes issue with whether Article V tribunals are required at all, given the President's characterizations of the conflict and the parties thereto.
 

Joseph: In brief, I argue in my original comment that the definitions of "enemy combatant" and "prisoner of war" actually overlap, and thus a finding that someone is an enemy combatant does not disprove - and in fact *supports* - a finding of POW status.

That promises to be an interesting read and I hope I can get to it today. Perhaps you can point me to a good resource to support casual claims I've heard that Common Article 3 applies regardless of matters such as whether a person was in uniform or not and that under CA3 inhumane treatment is still banned either way? I've had trouble navigating the resources I've found on the Geneva Conventions, so the most basic primer would be in order, with the specific goal of shedding light on that CA3 claim.

Thanks for elevating the level of discourse on this thread.
 

Robert Link [to Joseph Blocher]:

Thanks for elevating the level of discourse on this thread.

Seconded. I'll read the papers; this is the kind of discussion we should be having here, not some petitio principii pronouncements that "of course they're 'unlawful enemy combatants', otherwise what're they doing in Gunantanamo?"....

Cheers,
 

Robert and Anne -

Thanks, I look forward to hearing your thoughts.

Though of course I stand behind my original comment, I think that the response I've linked to presents the legal issues fairly and dispassionately, and I highly recommend it as well. My reply to that response should be up at www.yalelawjournal.org sometime soon.

Robert, you might want to have a look at pages 62-68 (and also 69-72) of slip op version of the Supreme Court's opinion in Hamdan. Here is a link to the pdf: http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf. The Court there addresses the applicability of Common Article 3 to the military tribunals, and does so in a relatively straightforward manner.

Joseph
 

Joseph:

How do you respond to Corn/Jensen/Watts' argument that neither the Taliban nor al Qeada meet the criteria (combatants who wear distinctive insignia, openly carry arms and obey the laws of war) to qualify as protected armed groups under Article 4?

These are arguments which I have posited here previously which proponents of extending Geneva Convention rights have not been able to answer. I would welcome your contribution to this debate.
 

Joseph: Though of course I stand behind my original comment, I think that the response I've linked to presents the legal issues fairly and dispassionately, and I highly recommend it as well.

Careful, you'll get a reputation with that kind of self-assured openness to criticism.

My first thought was your argument seemed simply too easy. I like it, it was appealing, the idea of presumptive and conclusive status. Nor am I for a second dissuaded by the rebuttal to which you linked.

My second thought is, wow, pretty big guns they turned on you. In this corner an up-and-coming clerk in Miami (or so says your SSRN entry), in the other corner a trio of JAG brass, and two of them profs no less. One imagines someone somewhere didn't like the thought of your ideas getting any traction.

But the real kicker for me? If you have followed my comments you already know how I feel about the "war" on terror. But to hear JAG brass pointing out that the President himself agrees with me about the unsuitability of the Taliban and al Qaeda as entities with whom our nation can reasonably be understood to be at war, well, this was really the sweetest present I've had in ages. Not that I am naive enough to think it will gain me any traction for my own ideas. The administration will continue to call it war in the public eye and deny it in the courts to whatever extent it sees fit. Still, it was a pleasant surprise, and I'll probably be quoting that section at my site. It also seems like a good realm for contemplation, what we can make of this distinction between "war" and "use of military force" in terms of what we have actually authorized the C-in-C to do both at home and abroad.

Peace.

Looking forward to your follow up, here and at YLR.
 

Bart: These are arguments which I have posited here previously...

You really do have a lot of nerve, just even showing your cowardly face, much less trying to pass yourself off as the one who isn't getting his questions answered. Do you really just have no shame? And an endless appetite for self-embarrassment? Amazing. You owe a fair few answers before you will have any right to a voice here, much less to whine about answers you think are due you. And if I haven't the power to de-voice you, to use the old IRC vernacular, I can nonetheless take every well-earned opportunity to lampoon you, as was done here on this self-same thread. Man up, soldier; man up or stand down.
 

Hi Bart -

The Article 4 POW classification issue is, of course, a crucial one. I address it at pages 672-74 of my Comment, but the argument there - and in Corn, Jensen, and Watts' thoughtful response - is really about who is supposed to apply that definition, not whether any particular one of the hundreds of Guantanamo detainees meet it. I argue that Article 5 tribunals should have done this job (or, more specifically, that CSRTs did not do it). Corn, Jensen, and Watts argue that no Article 5 tribunals were ever required, because the executive determined that the conflict was not covered and neither were al Qaeda or the Taliban. So the "merits" question you raise doesn't really enter into our discussion, though of course it'd have to be resolved at some point.

But your question does highlight one of the floating issues in that discussion - an issue which Corn, Jensen, and Watts acknowledge in their footnotes and quite reasonably hold aside. That issue, to over-simplify slightly, is whether the "requirements" you mention are actually required at all. They are listed only in the SECOND subsection of Article 4A. The FIRST subsection of Article 4A covers "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." That's the full text of 4A1 - no mention of the open arms, insignia, etc. It's an awkward bit of textualism, I think, to read the second section backwards into the first.

Anyway, you can check it out for yourself here: http://www.unhchr.ch/html/menu3/b/91.htm

Robert, thanks again for your kind words and for reading the piece. It was really gratifying to read Corn, Jensen, and Watts' well-reasoned engagement with my Comment, and I hope that my reply does justice to theirs.

Joseph
 

"Bart" DePalma:

How do you respond to Corn/Jensen/Watts' argument that neither the Taliban nor al Qeada meet the criteria (combatants who wear distinctive insignia, openly carry arms and obey the laws of war) to qualify as protected armed groups under Article 4?

A bit of slop in the definitions, I know, but the Taliban did wear "uniforms" of a sort, and carried weapons openly too (they were known for their white robes, turbans, and machine guns in the backs of Toyotas). Maybe this doens't meet with "Bart"'s approval for proper "uniforms", but hey, we didn't let them go to West Point to learn the 'proper' Western way of military conduct. And the Taliban were the recognised gummint in Afghanistan; hell, Dubya was even sending 'em money ... before 9/11.

Cheers,
 

Joseph said...

Hi Bart - [Y]our question does highlight one of the floating issues in that discussion - an issue which Corn, Jensen, and Watts acknowledge in their footnotes and quite reasonably hold aside. That issue, to over-simplify slightly, is whether the "requirements" you mention are actually required at all. They are listed only in the SECOND subsection of Article 4A. The FIRST subsection of Article 4A covers "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." That's the full text of 4A1 - no mention of the open arms, insignia, etc. It's an awkward bit of textualism, I think, to read the second section backwards into the first.

I would recommend for your reading the commentary for Article 4.

Article 4(A)(1) refers to the regular armed forces, militias and volunteer corps of states whose governments are recognized by the detaining power.

Article 4(A)(2) refers to partisan forces which do not profess an allegiance to a government.

Article 4(A)(3) refers to regular forces of a government not recognized by the detaining power like the Free French which fought with the Allies.

The commentators noted that the parties to the Geneva Conventions "considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17."

al Qaeda almost certainly falls under Paragraph (A)(2) as a non-governmental irregular force.

The US did not recognize the Taliban as a government and placed members of the Taliban in the same category as al Qaeda. However, even if you assume the Taliban was a government and its armed forces a militia, then they still have to meet the uniform requirements to distinguish them from enemy troops and more importantly civilians.

Because al Qaeda and Taliban captures were always in civilian clothing and their organizations never observed the laws of war, there was no real doubt that they fell outside of Article 4 and were unlawful enemy combatants.
 

why is al queda not properly categorized under 4a1:

ARTICLE 4. -- PRISONERS OF WAR
[p.44]


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.


no requirement of insignia here. they are willing to die for their cause and they are certainly volunteers for Allah!
 

Garth:

Go read the commentaries to Article 4 to which I linked above.
 

"Bart" DePalma:

I would recommend for your reading the commentary for Article 4.

You mean like this sentence?: "The four conditions which these Regulations impose on militias and corps of volunteers were reproduced and it was made clear that these conditions apply to militias and corps of volunteers not forming part of the regular armed forces, thus solving one of the most difficult questions -- that of 'partisans'."

The one that recognises that there should be some rules to distinguish "partisans" from "bandits"?

Cheers,
 

"Bart":

The US did not recognize the Taliban as a government....

Really? FWIW, SFW? You open a big can of worms when the Yoo Ess of Effin' Aye gets to decide who's the legitimate gummint of some other country (to illustrate, perhaps we ought to let others -- like say ferinstance Venezuela and Cuba -- decide who won the U.S. elections). They were the de facto gummint, and Dubya was negotiating with them.

Cheers,
 

Arne Langsetmo said...

"Bart" DePalma: I would recommend for your reading the commentary for Article 4.

You mean like this sentence?: "The four conditions which these Regulations impose on militias and corps of volunteers were reproduced and it was made clear that these conditions apply to militias and corps of volunteers not forming part of the regular armed forces, thus solving one of the most difficult questions -- that of 'partisans'."

The one that recognises that there should be some rules to distinguish "partisans" from "bandits"?


Do you have a point you would like to make?
 

"Bart" DePalma:

Yes. For the brain-damaged, I bolded it.

Cheers,
 

arne:

I saw nothing in your bolded passage that differed from my post, thus the question.
 

This comment has been removed by the author.
 

"Bart":

Your blindness or obtuseness is not something I can remedy. But for the benefit of those that want to see just how obtuse you are, I'll forge on.

The bolded part ("...these conditions apply to militias and corps of volunteers not forming part of the regular armed forces") means these conditions apply to people "not forming part of the regular armed forces"). It does not mean that these conditions apply to people "forming part of the regular armed forces". If you want to assert this (as you seemingly do), you'll have to look elsewhere than the ICRC annotations. The conventions assumed that regular armed forces would be identifiable and act as such, and only concerned themseves with the issues of partisans and such in their 4 point list:

"Here the expression "members of the armed forces" replaces the term "army" used in Article 1 Database 'IHL - Treaties & Comments', View '1.Traités \1.2. Par Article' of the Hague Regulations. It refers to all military personnel, whether they belong to the land, sea or air forces, and there is no longer provision for derogations in the case of the two latter branches such as had been provided in Article 1, subparagraph (2) Database 'IHL - Treaties & Comments', View '1.Traités \1.2. Par Article', of the 1929 Convention.
At the Conference of Government Experts, the question arose as to the advisability of giving a more exact definition of armed forces by stating as in the Hague Regulations that the term covers both combatants and non-combatants. It was finally considered that this fact was usually implicit in any general reference to armed forces, and moreover the matter had raised almost no difficulties during the Second World War. Any attempt at a stricter definition might result in restriction (13).
It had been proposed that the mention of militias or volunteer corps forming part of the armed forces should be deleted, as these were covered by the expression "armed forces". The Conference of Government Experts pointed out, however, that certain countries still [p.52] had militias and volunteer corps which, although part of the armed forces, were quite distinct from the army as such. The mention of militias and volunteer corps was therefore maintained as it appears in the Hague Regulations, although strictly speaking it was probably not essential.
The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17."

So, just show your dog tags, if you're in the army....

As the annotations indicate, there was some dispute as to how strict the criteria should be for those that would seek the protection of GC3 as "partisans". See " 2. -- 'Sub-paragraph (2) -- Partisans'" section in the link.

But what is clear is that these four criteria applied to the non-"regular" forces.

On another note, I'd point out that you, on the one hand, seem to be claiming that the Taliban etc. are not an organised force (i.e., they're lawless brigands), but on the other hand seem to be lumping anyone that is a "member" of the Taliban into the category of "outlaws" (or "unlawful combatants"). The two thrusts of your argument seem to be at odds. Are you claiming that we can declare an organisation (regardless of individual behaviour) as "unlawful" de jure? My, what a handy tool to have, if you want to avoid the annoying constraints of the GCs and even law....

Cheers,
 

Arne Langsetmo said...

The bolded part ("...these conditions apply to militias and corps of volunteers not forming part of the regular armed forces") means these conditions apply to people "not forming part of the regular armed forces"). It does not mean that these conditions apply to people "forming part of the regular armed forces". If you want to assert this (as you seemingly do), you'll have to look elsewhere than the ICRC annotations.

I thought that might be your point, but I was curious why you raised it since I was not arguing anything different.

I did not post that all four elements defining a non government Article 4(A)(2) militia equally applied to a government Article 4(A)(1) militia. These two organizations appear to share the requirements of a uniform and compliance with the laws of war, but the other two elements are arguable.

On another note, I'd point out that you, on the one hand, seem to be claiming that the Taliban etc. are not an organised force (i.e., they're lawless brigands), but on the other hand seem to be lumping anyone that is a "member" of the Taliban into the category of "outlaws" (or "unlawful combatants").

I think it is a close question as to whether the Taliban fall under Article 4(A)(1) or (2), but I concluded that the distinction is irrelevant because the Taliban do not follow the requirements of both subsections to dress in uniforms and to obey the las of war.
 

"Bart" DePalma:

I did not post that all four elements defining a non government Article 4(A)(2) militia equally applied to a government Article 4(A)(1) militia. These two organizations appear to share the requirements of a uniform and compliance with the laws of war, but the other two elements are arguable.

No, I don't think that even a "uniform" is necessary; read my prior post.

And why those are 'required' but the other two are not (for Article 4(A)(1) is far from obvious; you ought to explian how you came to such a conclusion.

But you did (implicitly) claim that the Taliban don't meet the Article 4 criteria, apparently for failing both 4(A)(1) and 4(A)(2) criteria:

"Joseph:

How do you respond to Corn/Jensen/Watts' argument that neither the Taliban nor al Qeada meet the criteria (combatants who wear distinctive insignia, openly carry arms and obey the laws of war) to qualify as protected armed groups under Article 4?"


Since you seemingly now acknoweldge that (at least) two of the criteria are not required, whereas the four criteria must be met for those not part of the regular army, why would you ask this question when in fact the implicit distinction would seem to be -- to you -- that the Taliban and al Qaeda are not covered under 4(A)(1), presumably because they are not regular armed forces in your mind?

Then you responded to Joseph's reply thusly:

Hi Bart - [Y]our question does highlight one of the floating issues in that discussion - an issue which Corn, Jensen, and Watts acknowledge in their footnotes and quite reasonably hold aside. That issue, to over-simplify slightly, is whether the "requirements" you mention are actually required at all. They are listed only in the SECOND subsection of Article 4A. The FIRST subsection of Article 4A covers "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." That's the full text of 4A1 - no mention of the open arms, insignia, etc. It's an awkward bit of textualism, I think, to read the second section backwards into the first.

I would recommend for your reading the commentary for Article 4.


I'd note for what it's worth that a "textualist" like you ought to take Joseph's straight quote of 4(A)(1) and distinguishing of it from 4(A)(2) to be dispositive, and I've dealt with the commentary above.

Cheers,
 

Just to make it a little clearer:

[Arne]: On another note, I'd point out that you, on the one hand, seem to be claiming that the Taliban etc. are not an organised force (i.e., they're lawless brigands), but on the other hand seem to be lumping anyone that is a "member" of the Taliban into the category of "outlaws" (or "unlawful combatants"). The two thrusts of your argument seem to be at odds. Are you claiming that we can declare an organisation (regardless of individual behaviour) as "unlawful" de jure? My, what a handy tool to have, if you want to avoid the annoying constraints of the GCs and even law....

If organisations are "criminal" (or "unlawful"), then we should just go and declare (or adjudge) the Mafia (or, perhaps more pointedly, Operation Rescue) as being such an organisation, and then just imprison anyone who we claim or find is a member on that basis. Saves a hell of a lot of court costs.

Under the terms of the DTA/MCA, it is sufficient to be a "member" of the Taliban or al Qaeda, regardless of individual acts, to be classified an "unlawful enemy combatant". "Group guilt", here we come....

Cheers,
 

Post a Comment

Older Posts
Newer Posts
Home