Balkinization  

Thursday, July 05, 2007

Having It Both Ways-- Al Qaeda and the Laws of War

Guest Blogger

David Cole
Georgetown University Law Center

On July 1, 2007, David Rivkin and Lee Casey, intrepid defenders of all things Bush in the “war on terror,” published an op-ed in the Washington Post lambasting the U.S. Court of Appeals for the Fourth Circuit for its decision declaring that the President had unlawfully placed Ali al-Marri, a resident of Peoria, Illinois, into military custody as an enemy combatant. The court held that domestic law did not authorize the detention of a civilian resident of the United States accused of supporting al Qaeda. In sky is falling style, they argued that if the Fourth Circuit’s decision stands, the United States would have no authority to use military force against al Qaeda, and al Qaeda could attack us with “impunity.” Here’s my response.

It is ironic that defenders of an administration that has long sought to avoid the laws of war in its conflict with al Qaeda now decry a federal court for declaring that US law, and not the laws of war, govern how US residents alleged to have conspired to engage in terrorism for al Qaeda are to be punished. David Rivkin and Lee Casey have previously argued that the Geneva Conventions – the modern-day embodiment of the laws of war -- ought not apply at all to al Qaeda. But they now maintain that the laws of war do apply, in an attempt to justify subjecting to indefinite military detention a civilian captured in the United States. In reasoning befitting Vice President Dick Cheney’s arguments that he is the executive when that status gives him legal rights but not the executive when it comes to legal obligations, Rivkin and Casey now invoke the very law they earlier sought to evade.

The case that has provoked their ire concerns Ali al-Marri, a citizen of Qatar residing in Peoria, Illinois. Al-Marri was arrested in December 2001 and charged criminally with credit card and identification fraud. One business day after a federal court scheduled a hearing on a motion to suppress illegally seized evidence, and less than a month before al-Marri’s trial was scheduled to commence, however, the President declared him an enemy combatant and swept him into military custody – where he has remained ever since, without charges or a trial. The government claims he came to the United States planning to engage in terrorism on behalf of al-Qaeda, but has never charged him criminally with any such activity.

The 4th Circuit Court of Appeals ruled that because al-Marri is not a member of any enemy nation’s army, never took up arms with al-Qaeda or the Taliban against the United States, never engaged in direct hostilities with the United States, and was never even present on a battlefield, he cannot be locked up in military detention, but must be tried in a civilian court for his alleged crimes. The court reasoned that under the laws of war that govern conflicts between a state and a non-state actor such as al-Qaeda, persons who conspire to aid enemy forces but are not themselves part of an army are not “combatants.”

Contrary to Rivkin and Casey’s contentions, this does not mean that al-Qaeda supporters have impunity to wage war against the United States; quite the opposite. “Combatants” have a right to fight; criminals do not. It was for that reason that President Ronald Reagan warned in 1987 that granting “combatant status to irregular forces” would “give recognition and protection to terrorist groups.” Accordingly, the laws of war generally do not grant “combatant” status to non-state actors, but leave their detention and punishment to domestic law – which, in the United States, makes any aid to al-Qaeda a federal crime.

The 4th Circuit’s decision follows Supreme Court precedent, which ruled during the Civil War that a resident of Indiana accused of conspiring to aid rebel forces had to be tried as a civilian in criminal court, and could not be detained and tried by the military as long as civilian courts were open.

Rivkin and Casey object that “under the 4th Circuit’s rationale, the United States is not now engaged in a legally cognizable armed conflict with al-Qaeda.” And they claim that unless the laws of war apply, the United States could not lawfully “take the offensive against al-Qaeda.”

Nothing could be further from the truth. To uphold a longstanding distinction between civilians and combatants for purposes of detention and liability does not mean that the United States is not in a legally cognizable conflict, or that it cannot take on al-Qaeda with military force. As the Supreme Court reminded us in its decision last summer in Hamdan v. Rumsfeld, over objections of the Bush administration and Rivkin and Casey, the Geneva Conventions do govern military conflicts between states and non-state actors; they just subject them to a different set of rules. Those rules insist on decent treatment for all detainees, but also draw a distinction between “combatants,” who have a right to fight, and civilians, who do not. In al-Marri’s case, that means a civilian trial is required.

One of the defining features of law is that it simultaneously authorizes and restricts official power. One of the defining characteristics of the Bush administration since September 11 has been its proclivity to invoke legal authority while evading its accompanying restrictions. The 4th Circuit simply said that the administration cannot have it both ways.


Comments:

Professor Cole:

It is ironic that defenders of an administration that has long sought to avoid the laws of war in its conflict with al Qaeda now decry a federal court for declaring that US law, and not the laws of war, govern how US residents alleged to have conspired to engage in terrorism for al Qaeda are to be punished. David Rivkin and Lee Casey have previously argued that the Geneva Conventions – the modern-day embodiment of the laws of war -- ought not apply at all to al Qaeda

The Administration has correctly argued from the beginning that the law of war and not civilian criminal law applies to unlawful enemy combatants as it has since the dawn of the Republic.

The Geneva Conventions are hardly the end all and be all of the Law of War. The fact that the Administration correctly notes that al Qaeda and the Taliban do not fit under the Article 4 definitions of protected parties under the GC hardly means that it has been arguing that these unlawful enemy combatants do not fall under the traditional law of war covering such combatants.

It is the divided panel of the 4th Circuit which entered into radical new territory by arguing that foreign unlawful enemy enemy combatants should be treated a civilians under the criminal law simply because they violated the law of war by disguising themselves as civilians.

The laws of war, not civilian criminal law, apply to a member of our armed forces which works in finance. Consequently, it makes no sense whatsoever that a member of al Qaeda like al Marri which is seeking to finance al Qaeda be treated as a civilian merely because he violated the laws of war by disguising himself as a civilian.
 

The laws of war, not civilian criminal law, apply to a member of our armed forces which works in finance. Consequently, it makes no sense whatsoever that a member of al Qaeda like al Marri which is seeking to finance al Qaeda be treated as a civilian merely because he violated the laws of war by disguising himself as a civilian.

A conventional army relies on the aid of many civilian supporters as well -- people working in defense industries, civilians doing military R&D, civilian government bureaucrats who operate the military budget, ordinary taxpayers, and so forth. Certainly not everyone who participates in financing an army is therefore a soldier.

Al-Marri entered the US on a lawful visa, albeit under false pretenses if allegations against him are true. Many spies have entered the US on lawful visas, though under false pretenses, and been afforded the rights of criminal defendants.
 

Professor Cole comes to a perfectly reasonable conclusion, but from the wrong direction. The government claims that al Marri was a former soldier who volunteered to Bin Laden to be a spy and saboteur. He entered the US on a military mission under the command of Khalid Sheikh Mohammed. It is on that basis that he is held as an enemy combatant.

Al Marri had been a soldier, but appears to have left military service years earlier. Historically, military spies are seldom recruited from the officers and enlisted men of an army. Militia, scouts, and other irregulars are more likely to have the skills to operate undetected behind enemy lines. So the spy is the one type of enemy combatant who does not actually have to enlist in the army. Instead, he becomes a spy by receiving orders directly from an enemy military commander and then, under those orders, by passing through our lines of defense (by entering the US pretending to be an ordinary civilian).

It was important to the Fourth Circuit decision that al Marri would be classified as a "civilian" protected by the Fourth Geneva Convention and not as a POW protected by the Third GC. However, this use of the term "civilian" appears to be locally defined for the purpose of the document itself. Article 5 of the Fourth Convention explicitly mentions spies and saboteurs as "civilains" for whom special rules apply. Yet in other international law, and in US domestic law (Quirin, Padilla) a spy has been classified as an illegal enemy combatant and not as what US law considers a civilian. In particular, a spy or saboteur has been explicitly excluded by the Supreme Court in Quirin from the scope of ex parte Milligan.

The law in the al Marri case, curiously has nothing to do with al Marri himself or the fact that he was captured inside the US. A spy or saboteur has to be captured inside the US to be a spy, just as a bank robber has to go in a bank to be a bank robber. Assuming the facts as the government alleges, his status depends on the status of his commander Khalid Sheikh Mohammed. If KSM is an unlawful combatant then he lacks the authority of an enemy military commander necessary to make al Marri a spy. KSM has to have been a lawful enemy commander to have the authority to turn a civilian into a spy.

So the conclusion that the government cannot have it both ways is right, but the paradox involves two men not one. In the laws of war, a spy can be a non-soldier civilian, yet also be an enemy combatant. As the Supreme Court points out in Quirin, the act of crossing our border as a spy is itself an act of belligerency (equivalent to armed combat) even though the spy carries no weapon. The paradox occurs when you consider both the alleged spy and his alleged commanding officer. They cannot both be unlawful combatants, as the government currently claims. Of course this argument asserts that the Fourth Circuit was wrong because it assumed, incorrectly, that someone classified as a "civilian" for the purpose of deciding whether the Third or Fourth Geneva Convention applied to him was, as a consequence, an actual civilian for all purposes under international and national law. It needed that definition to bypass Quirin and get to Milligan, but if you look more closely at actual meaning you cannot bypass Quirin in this case.
 

el:

Civilian members of a lawful military are generally treated like POWs. They are not tried as civilian criminals. To do so would violate the GC.

Spies dressed as civilians do not have the rights of POWs. They are in the category of unlawful combatants.
 

Bart,

Your dishonesty is really getting quite disgusting.

Anyone who is not a POW protected Geneva III is a CIVILIAN protected by Geneva IV, art. 4.
 

OK, Bart, I know we've been over this innumerable times before, but let's take it again from the top. Since unlawful combatants do not fall under either the Geneva Conventions protecting the rights of POW's or criminal law protecting the rights of civilian criminals, what law, if any do they come under? What rights, if any, do they have?
 

"Anyone who is not a POW protected Geneva III is a CIVILIAN protected by Geneva IV". Although this is a commonly held view, consider what GC IV Article 4 says: "Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are." Most members of Al Qaeda are nationals of Saudi Arabia, Yemen, or other States neutral in the Afghan war. Therefore, they are not protected by GC IV Part I.

More broadly, the "Geneva Convention relative to the Protection of Civilian Persons in Time of War" actually never defines who is and isn't a civilian. Instead, Article 4 defines "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." The rest of the text is about "protected persons" who happen to mostly be civilians with the addition of a few other categories like Article 5 spies and saboteurs. The percentage of Protected Persons who are civilians is so great that people often assume that every Protected Person is a civilian when a careful reading of the text shows that to the contrary, every civilian is a Protected Person (except for civilian nationals of neutral countries who are partially protected). Everyone who is not entitled to POW status under GC III (and is not entitled to protection under the other GC categories) is a Protected Person under GC IV, but that doesn't actually define them as a civilian. If the people writing the convention had realized how many people would be unable to read more than the title, maybe they would have stopped and even though it sounds bad called it more accurately the "Geneva Convention relative to the Protection of Civilian Persons and A Few Other Small Categories of Persons in Time of War"
 

OK, Bart, I know we've been over this innumerable times before, but let's take it again from the top. Since unlawful combatants do not fall under either the Geneva Conventions protecting the rights of POW's or criminal law protecting the rights of civilian criminals, what law, if any do they come under? What rights, if any, do they have?

# posted by Enlightened Layperson : 10:50 PM

According to "Bart," Bushit, and Cheney, no one other than themselves and "Scooter" Libby has any rights so long as "Bart," Bushit, and Cheney can lie them into non-existence.

Is "Bart" some sort of enemy combatant for constantly lying against the rule of law, both domestic and international? As a supporter of the Guantanomo concentration camp and the non-torture torture of waterboarding, can he be sent there involuntarily so he can report back to us -- if ever allowed by himself, Bushit, and Cheney -- about the wonderful time he is having via "Wish you were here!" type communiques?

Please?
 

Howard, that is pure balony. I'm well aware of the exceptions, but the pont is that there is NO exception which is based on any spurious third category. GC4 art 4 is quite clear: the basic rule is that anyone who is not protected by GC1-3, is protected by GC4.

Now as to exceptions, it's quite obvious that it is intended to apply to those countries which are not parties (and Geneva now has unversal ratification) or those where the person is protected by normal counsular relation.

And is Saudi Arabia etc a neutral or an ally in Bush's idiotic War on Everything and Nothing?

See Prof. Cole's title.

The bottom line here is plain: everyone, without exception, is entitled to due process of law when accused of a crime -- and under all the endless BS, that is all that any accused "terrorist" is.

And it is a WAR CRIME to deprive them of their rights to due process and a fair trail etc; see 18 USC 2441(c)(2) as it refers to Hague IV Annex art. 23[h], which states:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

That's all the Bush administration has been trying to do from the start, in direct and flagerant violation of our own laws, including Geneva 1949 and the 1945 Charter of the IMT used at Nuremberg.
 

Personally I think Al Qaeda is covered by GC III. There is an argument that they were the "Foreign Legion" of Afghanistan during the war against the Russians and later with the Taliban. Thus they were "Members of the armed forces of a Party to the conflict." However, even if you accept their theological view that they represented all of Islam and not just one secular country, then they are covered as "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." If it just said "government" I might have trouble finding one, but "allegiance to an authority" is general enough to cover an army that owes its allegance to Allah and the whole of Islam.

However, if you disagree with this position (as both the administration and its critics seem to do) then because Al Qaeda consists of nationals of neutrals (or cobelligerents if you insist Saudis are on our side) then they are protected only by GC IV Part II (sick and wounded) and by Common Article 3.

Although it is common to say that the GC's cover everyone, a more accurate statement is that the conventions cover every soldier or national of an enemy country that falls into allied military hands. So to be protected, Al Qaeda members either have to be members of an enemy armed force or else Afghan citizens. The assumition is that others, say US citizens like Padilla, Australians like Hicks, or Canadians like Khadr, are protected by law and friendly diplomatic relations but not by the Conventions.
 

Enlightened Layperson said...

OK, Bart, I know we've been over this innumerable times before, but let's take it again from the top. Since unlawful combatants do not fall under either the Geneva Conventions protecting the rights of POW's or criminal law protecting the rights of civilian criminals, what law, if any do they come under? What rights, if any, do they have?

OK, one more time...

All wartime prisoners have the right to a status hearing under the GC.

If the prisoner is a member of a military organization (regular or irregular) which is at war with the US, he is an enemy combatant and not a civilian.

If the prisoner does not fall under one of the protected categories defined under Article 4 of the GC, then he is an unlawful enemy combatant which falls outside of the GC.

Under traditional laws of war, prisoners who were found to be unlawful enemy combatants could be and were often executed by the military.

However, nothing prevents the US from voluntarily extending additional rights to unlawful enemy combatants not required under the law of war such as military commissions and more elaborate status hearings as the US has done in the past.

Currently, unlawful enemy combatants have the rights which Congress has provided in the DTA and MCA. Realistically, they also have whatever rights the Supremes extra constitutionally legislate from the bench.
 

"If the prisoner does not fall under one of the protected categories defined under Article 4 of the GC, then he is an unlawful enemy combatant which falls outside of the GC."

There simply is no category of unlawful combatants, and it is impossible to read the Geneva Conventions honestly and think that it would not be explicitly defined if there was.

There are four Geneva Conventions; BOTH GC3 AND GC4 apply here, and BOTH have an art. 4 which states who is protected.

If you aren't protected by GC3, then you are protected by GC4.

And you, Bart, are a LIAR.
 

Under traditional laws of war, prisoners who were found to be unlawful enemy combatants could be and were often executed by the military.

Under those same laws of war, of course, such people were supposed to be tried by a courts-martial or military commission prior to execution, and even then only with the approval of the President or chief commander. Al-Marri hasn't even had a CSRT, which would normally be the prerequisite for jurisdiction under the MCA. It's the Government's failure to satisfy the two-step requirement of the MCA that led to the Fourth Circuit's decision.
 

Charles Gittings said...


BD: "If the prisoner does not fall under one of the protected categories defined under Article 4 of the GC, then he is an unlawful enemy combatant which falls outside of the GC."

There simply is no category of unlawful combatants, and it is impossible to read the Geneva Conventions honestly and think that it would not be explicitly defined if there was..If you aren't protected by GC3, then you are protected by GC4.And you, Bart, are a LIAR..


Exactly which part of "falls outside of the GC" did you not comprehend? I never said that the GC sets out a category known as unlawful enemy combatants. You may want to watch eating the liar shoe with which you tried to kick me.

There is no catch all provision in the GC which states that any prisoner which does not fall under the definitions of protected Article 4 combatants are defined as civilians under Article 3.

The GC is like any other statutory provision. If you do not fall under the definitions of parties subject to the provision, then the provision simply does not apply to you. This is Statutory Construction 101. Consequently, any prisoner which does not fall under the definitions of civilian or lawful combatant under the GC, falls outside the GC.

A civilian is a non combatant and by definition cannot be defined as a combatant. Therefore, a combatant who does not follow the laws of war as set forth in the definitions of Article 4 falls outside the GC.

The GC encouraged militaries to follow the laws of war by extending privileges to their captured combatants if they followed the law. Thus the term lawful enemy combatant.

To reward a military which does not follow the laws of war with better civilian privileges than are extended to lawful enemy combatants undermines the entire purpose of of the GC.
 

PMS_Chicago said...

BD: Under traditional laws of war, prisoners who were found to be unlawful enemy combatants could be and were often executed by the military.

Under those same laws of war, of course, such people were supposed to be tried by a courts-martial or military commission prior to execution, and even then only with the approval of the President or chief commander.


To the best of my knowledge, we never tried unlawful enemy combatants by courts martial. This was a recent rewriting of the UCMJ by the Supremes which was corrected by the Congress with the MCA.

We have extended the privilege of trial by military commission on specific occasions, but that was not the standard practice. Lincoln did not do so during the Civil War and we generally did not do so in the Indian Wars and the various little wars we engaged in against guerilla groups around the world.

Al-Marri hasn't even had a CSRT, which would normally be the prerequisite for jurisdiction under the MCA. It's the Government's failure to satisfy the two-step requirement of the MCA that led to the Fourth Circuit's decision.

Actually, the only defensible portion of the two judge decision in a split panel of the 4th Circuit was the application of the Patriot Act provision requiring the government to either try or deport terrorists captured in the US. al Marri is accused of being a terrorist, so I do not see how this provision would not apply.

The MCA does not apply to detention as generic prisoners of war for the duration of the conflict as the government claimed it was doing with al Marri. The MCA is the system established by Congress for the Government to try al Marri for war crimes by military commission as a foreign unlawful enemy combatant.
 

Bart,

To say that you are a liar is merely to state a fact, to wit:

"There is no catch all provision in the GC which states that any prisoner which does not fall under the definitions of protected Article 4 combatants are defined as civilians under Article 3."

That is simply FALSE, and I have very hard time seeing how anyone could read the conventions and make such a statement. Howard actually quoted part of the relevant language in GC4 art. 4:

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

What he omitted was the languae that exclude persons proteced by GC1, GC2, and GC3. The only exceptions are based purely on nationality, not the non-existent third category of unlawful combatants.

Under Geneva, everyone is protected as either a POW or a civilian, unless their nationality excludes them from any protection at all (in which case they are still protected by CA3, Hague IV (1907), and the IMT Charter, etc).

You aren't just a liar Bart, you are advocating WAR CRIMES that we once executed German and Japanese war criminals for committing, AND inciting criminal violations of the US Code.
 

Bart,

So we are right back where we started. You argue that criminal law does not apply in the War on Terror and that the Geneva Convention requires only a (rather abreviated) hearing to determine status. Once a finding is made of "unlawful combatant," then no law applied until Congress enacted the DTA and the MCA, and battlefield executions were perfectly lawful.

You have also made perfectly clear that you regard the Supreme Court decision making the MCA necessary as illegitimate. I have not observed you to criticize the DTA, but nonetheless, you make fairly clear that if Congress had not passed it the War on Terror overseas would be a no-law zone. Furthermore, you say that the same provision would have applied to al-Marri if Congress had not enacted the Patriot Act, requiring him to be criminally charged.

So let me follow where this logically seems to lead us. If Congress had not passed the the DTA and MCA, then once a status hearing determined an overseas "Capture" to be a terrorist, he would be outside the law and battlefield execution would be lawful. If Congress had not passed the Patriot Act requiring terrorists "captured" in the US to be criminally charged, al-Marri would have no more protection than a terrorist taken overseas. It would logically seem to follow that if Congress had not passed these three laws, al-Marri could have been taken from federal court and subjected to a quickie "status hearing." If he was found to be a terrorist, then he would be placed outside all laws and, it would logically seem to follow, a prompt "battlefield" execution would have been lawful (since the entire world is a battleground in this war).

Granted, these are three big "if's," but they lead in a most alarming direction. Please, tell me where my logic is wrong.
 

This discussion has drifted away from al Marri, who was a spy and saboteur (if KSM is an enemy commander) and would therefore have been explicitly covered by GC IV Article 5 except for the fact that has a citizen of neutral or cobelligerent Quatar is not covered. The Forth Circuit decision was wrong in asserting that because he was not covered by GC III as a POW he was therefore a "civilian" in the meaning that the Supreme Court used the term in ex parte Milligan. Rather, he was a spy in the meaning of the term that the Supreme Court used in ex parte Quirin, and Quirin says that Milligan doesn't apply to spies.

However, rejecting the reasoning of the Fourth Circuit decision doesn't answer the question of what to do with al Marri.

That said, both sides arguing here make the mistake of assuming that the Geneva Conventions are the only international law and that if someone "falls thorugh the cracks" of Geneva he is in a lawless territory. This is the Geneva Falicy and it is a very widespread mistake. There are hundreds of years of international law, and very little of it was replaced and non was repealed by Geneva. In al Marri's case, the Annex to the Hague 1907 Regulations on the Laws and Customs of War on Land point out that "Art. 30. A spy taken in the act shall not be punished without previous trial."

The government would also be wise to pull its head out of its ass on this, because the following article states "Art. 31. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage." This specifically negates one of the charges against Omar Khadr "Charge V: Violation of Part IV, M.M.C., Section 950v(27), Spying
Paragraph 34: In that Omar Ahmed Khadr, a person subject to military commission as an alien unlawful enemy combatant, did in Afghanistan, in or about June 2002, collect certain information by clandestine means or while acting under false pretenses ..." since it is undisputed that after any such spying he rejoined the army to which he belongs.
 

Charles Gittings said...

Bart, To say that you are a liar is merely to state a fact, to wit: "There is no catch all provision in the GC which states that any prisoner which does not fall under the definitions of protected Article 4 combatants are defined as civilians under Article 3."

That is simply FALSE, and I have very hard time seeing how anyone could read the conventions and make such a statement. Howard actually quoted part of the relevant language in GC4 art. 4:

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."


My, my you must like swallowing that liar boot.

To start, this provision comes from GC3 (not GC4), Art. 4. The persons to which this provision applies are defined above in GC3, Art. 3 as "Persons taking no active part in the hostilities," which are civilians and wounded enemy combatants who can no longer fight.

GC3 does not apply to enemy combatants taking an active part in hostilities and this provision in no way states that enemy combatants who do not fall under the definitions of GC4 are considered to be "Persons taking no active part in the hostilities." Such a claim is nonsensical.

Try reading for content.

If al Qaeda followed the laws of war, it would fall under GC4, Art. 4, Paragraph 2 - which covers irregular militaries which do not follow a government.

If the Taliban followed the laws of war, it would either fall under Paragraph 2 if you did not consider it a government or Paragraph 3 if it was a government that the US simply did not recognize.

However, because these military organizations do not follow the laws of war, they do not fall under the definitions laid out for POWs under GC 4.

And because al Qaeda and the Taliban are at war with the US, their members are definitely not ""Persons taking no active part in the hostilities" as civilians are defined by GC3.

You aren't just a liar Bart, you are advocating WAR CRIMES that we once executed German and Japanese war criminals for committing, AND inciting criminal violations of the US Code.

:::sigh:::

The Germans usually executed captured Allied commandoes like the OSS fighting in civilian clothing and none were ever tried as war criminals for this.

Given you demonstrated ignorance in this area, you may want to reconsider you repeated and erroneous use of the liar slander. It makes you look petty and foolish.
 

Enlightened Layperson said...

you make fairly clear that if Congress had not passed it the War on Terror overseas would be a no-law zone.

Folks, the elephant in the room which you are studiously ignoring is that the battlefield between combatants is generally a "law free zone." A soldier can kill another soldier at will without any due process whatsoever. The battlefield is not and never will be a court of law.

The law of war carved out a reciprocal exception to the kill on sight rule for POWs so long as the enemy extended the same courtesies to your POWs. Even under this exception, there is no due process concerning the status of the POW apart from a summary review.

So let me follow where this logically seems to lead us. If Congress had not passed the the DTA and MCA, then once a status hearing determined an overseas "Capture" to be a terrorist, he would be outside the law and battlefield execution would be lawful.

Unless another provision of US law of which I am unaware applies, the answer would be yes.

If Congress had not passed the Patriot Act requiring terrorists "captured" in the US to be criminally charged, al-Marri would have no more protection than a terrorist taken overseas.

That is correct. Why should an unlawful enemy combatant who manages to invade the US be given any additional rights over one captured in Iraq?

It would logically seem to follow that if Congress had not passed these three laws, al-Marri could have been taken from federal court and subjected to a quickie "status hearing."

The military conducts status hearings of prisoners in a war. Civilian courts have no jurisdiction over this determination under the Constitution because foreign enemy combatants do not enjoy constitutional rights.

Granted, these are three big "if's," but they lead in a most alarming direction. Please, tell me where my logic is wrong.

Let me be blunt.

Why is it alarming in the least to execute unlawful enemy combatants who violate every law of war to mass murder civilians and to torture to death any of our soldiers who fall into their hands?

How have these terrorists earned any additional consideration above and beyond the kill on sight general rule of the battlefield?

POW privileges are not rights. They are earned by reciprocal extension of POW privileges to our troops.
 

Gee, Bart, I notice you have avoided answering the ultimate question of my post. You have expressly stated that:

(1) In the absence of the DTA and MCA, an overseas "Capture" determined by status hearing to be a terrorist would be subject to battlefield execution;

(2) Absent provisions in the Patriot Act requiring terrorists taken in the US to be criminally charged, al-Marri would have no greater rights than a terrorist overseas;

(3) Absent this provision, al-Marri would be subject to nothing more than the same military status hearing that takes place overseas.

But you did not answer my question about where these conclusions would lead. In the absence of the DTA, MCA and Patriot Act, [i]f he [al-Marri] was found to be a terrorist, then he would be placed outside all laws and, it would logically seem to follow, a prompt "battlefield" execution would have been lawful (since the entire world is a battleground in this war).

That appears to be the logical conclusion from these other three statements, that absent these three laws, "battlefield" executions of terrorists would be lawful, even in the US. Do you agree or disagree? And, once again, if you disagree, please tell me where my logic is wrong.
 

Bart,

Good grief. Maybe if you weren't so intent on misrepresenting the truth and just READ the conventions...

GC3 art. 4 protects POWs.

GC4 art. 4 protects Civilians, and the basic definition of 'civilian' is ANYONE who is not protected by GC1, GC2, or GC3.

The language I quoted was from GC4 art. 4. The excpetions, such as they are, all have to do with nationality, NOT any spurious third category of detainee such as "unlawful combatants".

The case here is quite simple Bart: 1 + 1 = 2, not 0 or 3.
 

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