Once a person has been determined to be an enemy combatant, the question is then how long to keep him. Traditionally, a combatant could be released prior to the termination of hostilities if his medical condition indicated that he was no longer combat effective, or (in a simpler time) if he gave his word of honor that he would not take part in further hostilities. Combatants were also traded in prisoner swaps. There is no requirement in international law to release an enemy combatant who is not regarded as a continuing threat, although there is no reason to waste the effort to detain him.

As quoted, the Supreme Court indicates that it is not permissible to detain someone who is not an enemy combatant simply because they have intelligence value. However, once someone is determined to be an enemy combatant, there is no bar to retaining him because he has valuable information.

The quotes you cite don't actually say what you imply. The Supreme Court did not say that intelligence value could not be taken into consideration when deciding who to retain, it simply said that it was not sufficient justification in itself to detain someone in the first place. Any other position would throw away the Constitution and all the principles of justice.

Lets put this another way. Being a really bad person is not sufficient reason to lock someone up. However, character and remorse are considered by judges every day when deciding how long to sentence someone who has been found guilty of a crime. So our justice system is founded on a principle that judges can determine the length of detention based on factors that are not, in themselves, sufficient to detain someone in the first place.
 

Marty:

1) Low level enemy combatants become less dangerous over time as their units are destroyed and they are unable to return to the battlefield against our forces.

Also, foreign governments have volunteered to keep an eye on their released citizens if we release them to their home countries. These paroles over to foreign governments have often been opposed by the CIA and the military because they have evidence that the detainees remain dangerous but their objections are overruled for political reasons.

Consequently, the fact that we have released most of the detainees does not mean that they were rounded up only for intelligence gathering.

2) Since the dawn of organized warfare, one of the primary reasons the military captures and detains the enemy is to gather intelligence. This is hardly anything new and is perfectly legitimate.

The only requirement to hold a capture as a prisoner of war or internee for the duration of the hostilities is that he or she - civilian or combatant - be an enemy belligerent supporting the enemy war effort.

Indeed, the most valuable detainees are often staff and support weenies who are not personally dangerous and will never see the battlefield but have in depth knowledge of enemy operations and dispositions. For example, members of the al Qaeda financial and supply network can be lawfully detained as prisoners of war even if they are not in the least but personally dangerous for the purpose of gathering intelligence to disrupt and destroy al Qaeda logistics. A number of Gitmo detainees fall in this category.

3) The fact that some members of the Court displayed their utter ignorance of standard military operations by making comments like: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized [by the AUMF]" is simply an additional argument why civilian courts lack the knowledge and experience to assume combatant review duties from the military for the first time in Anglo American history.
 

Howard Gilbert:

Once a person has been determined to be an enemy combatant, the question is then how long to keep him.

That kind of falls apart if the decision as to whether someone is an "enemy combatant" is based on whether they're a potential source of "intelligence" information (suitably coerced, of course).

Cheers,
 

"Bart" DePalma:

3) The fact that some members of the Court displayed their utter ignorance of standard military operations by making comments like: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized [by the AUMF]" is simply an additional argument why civilian courts lack the knowledge and experience to assume combatant review duties from the military for the first time in Anglo American history.

Translated from BartSpeak into English: "The U.S. Supreme Court is not competent to rule on U.S. law."

According to "Bart", that's a job for the military.....

Cheers,
 

arne:

Conducting combatant status determinations have always been a military matter and have NEVER been an issue of law ruled upon by civilian courts. The Supreme Court and the lower federal courts are indeed particularly unqualified to make this military determination.
 

Good catch, Prof. Lederman; I guess I'm so inured to the present regime that I read straight through the article without even noticing that point.
 

"if the decision as to whether someone is an 'enemy combatant' is based on whether they're a potential source of 'intelligence' information". That would be true if there were any evidence of it, but the quote in the original post discussed the annual review of someone after he has been found to be an enemy combatant, not the initial finding. I am only commenting on what was actually presented in the post, not on other allegations that some might make.
 

-- the quote in the original post discussed the annual review of someone after he has been found to be an enemy combatant, not the initial finding. --
.

See Parhat v. Gates for what is likely a boundary-line case of an initial finding that a person is, in fact, an enemy combatant.

.

But, once found so (by the military), forever out of reach of civilian courts?
 

Howard Gilbert:

"if the decision as to whether someone is an 'enemy combatant' is based on whether they're a potential source of 'intelligence' information". That would be true if there were any evidence of it, but the quote in the original post discussed the annual review of someone after he has been found to be an enemy combatant, not the initial finding.

So you think that the same minds that came up with this reason to keep someone would decline to detain them in the first place based on similar 'logic'?

Cheers,
 

"Bart" DePalma:

Conducting combatant status determinations have always been [blah-blah=balh...]

As I said, "Bart". We know what your position is. It is that the U.S. Supes aren't capable of determining if "indefinite detention for the purpose of interrogation is not authorized [by the AUMF]". You said that. Your preferred form of gummint is quite plain. You might try your schtick in Islamabad; perhaps it will find more fans....

Cheers,
 

So you think that the same minds that came up with this reason to keep someone would decline to detain them in the first place based on similar 'logic'?

A parole board will fail to release someone who has 10 years left on his sentence for a lot less cause than a judge will sentence someone to 10 years in jail. There are a few people prominently committed to mental institutions (Hinkley) who probably no longer pose any threat to society, but in cases that the public will notice the doctors are a lot more careful than they would be in a normal case and keep him detained "just in case." Jeffrey Skillings certainly poses less of a threat to society than anyone in Guantanamo, but I don't see everyone asking for him to be pardoned from his 24 year sentence just because he isn't likely to take up an AK47 and shoot people.

Again, international law requires that an enemy combatant be released after the entire enemy army surrenders. The US is under no obligation legally or morally to release any of these guys now. So inquiring into why some did not get released makes no sense. A more sensible question is why some do get released, especially when two dozen or so have been recaptured in combat.
 

Howard Gilbert:

[Arne]: So you think that the same minds that came up with this reason to keep someone would decline to detain them in the first place based on similar 'logic'?

A parole board will fail to release someone who has 10 years left on his sentence for a lot less cause than a judge will sentence someone to 10 years in jail.

Perhaps. But the reasons (the "cause") for doing so are usually pretty much prescribed. OTOH, here you have the decision based not on what a person has done, but rather, based on what they (allegedly) know; whether they will make a good "material witness" (the initial reason for holding a fair number of people after 9/11, I'd point out) and might cough up something useful after suitable further 'hospitality'....

Cheers,
 

Howard Gilbert:

Again, international law requires that an enemy combatant be released after the entire enemy army surrenders. The US is under no obligation legally or morally to release any of these guys now....

That's begging the question: You're assuming they are properly "enemy combatants", and not just people being held for the information they are thought to possibly possess.

... So inquiring into why some did not get released makes no sense. A more sensible question is why some do get released, especially when two dozen or so have been recaptured in combat.

Why, when you're right, you're right, Howard!!! Yes, assuming the facts as stated, one might inquire as to why we let people go that were (or at least now are) arguably "terra-ists". Doesn't this cast even more doubt on the rationale for detention? And how do you square this with the GC3 Article 17 prohibitions on coerced extraction of information?

Cheers,
 

Again, international law requires that an enemy combatant be released after the entire enemy army surrenders.

I thought the whole reason they were "enemy combatants" was that they weren't a part of an "army." They would be POWs if in fact there existed an enemy army to surrender.
 

Eric: I thought the whole reason they were "enemy combatants" was that they weren't a part of an "army." They would be POWs if in fact there existed an enemy army to surrender.

Ah, you noticed that, too? Here's an explanation a la Jonah Goldberg: They're "enemy combatants" when treating them like part of a regular army would be inconvenient--in respect to the Geneva Conventions, for example. They're an "enemy army" when treating them like something else would be inconvenient--in respect to the threat prerequisite in the AUMF, or when debating the powers of the President in "wartime."

Goldberg might agree that it's a contradiction, but if you're a true conservative, you should be comfortable with that, at least by his reckoning.
 

eric/pms:

Whether the enemy combatant comes from a regular or irregular military is irrelevant to determining if they qualify for privileged POW status under the GCs. The determining factor is whether they follow the laws of war and the GC.

The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.
 

John Yoo says that the most important aspect of our war against al-Qaida is gathering intelligence. This no doubt informed every decision made by the incumbent and his enablers.
 

"Bart" DePalma:

The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

Please cite to the GC sections that provide that those that "disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death" do not qualify as POWs.

They may be tried for their crimes (and GC3 in fact provides for such trials), but that hardly means the GC do not apply. The idea that we can be "bad" -- because they (allegedly) were -- is a tu quoque argument, and hardly a legal justification.

Cheers,
 

Two things.... one "a dozen or more " of these guys has not shown up "back" on the battlefield...(we refer to this as a gitmo myth) since more than 90% were not even picked up on the battlefield even referring to someone going "back" is wrong (see Seton Hall latest report or my blog) and the CSRT's the initially found these guys to be enemy combatants was a hopelessly corrupt system (see affidavit and testimony of Stephen Abraham)... it was a system that was designed to make sure that the men were found enemies... and when someone like my client was found not to be an enemy in his CSRT they created a new (and more compliant panel) to redo the hearing and then find him an enemy the second time around (disregarding their own rules in the process)...
 

Bart:
Whether the enemy combatant comes from a regular or irregular military is irrelevant to determining if they qualify for privileged POW status under the GCs.

"Member of an army" and "enemy combatant" are mutually exclusive.
 

Arne,

I will provide the sections of GC that counter Bart.

His claim:

The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

Actual GC:

Article 129: "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

OK, we can capture war criminals.

Art. 129, continuing: "In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

Hmm., what do Articles 105 and following say:

Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

...

The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war.

...

Art 106. Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Art. 107.

...

Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise be sent to the prisoners' representative concerned. It shall also be sent to the accused prisoner of war in a language he understands, if the sentence was not pronounced in his presence. The Detaining Power shall also immediately communicate to the Protecting Power the decision of the prisoner of war to use or to waive his right of appeal.

Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting Power a detailed communication containing:

(1) the precise wording of the finding and sentence;
(2) a summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defence;
(3) notification, where applicable, of the establishment where the sentence will be served.

...

Art 108.Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity.

A woman prisoner of war on whom such a sentence has been pronounced shall be confined in separate quarters and shall be under the supervision of women.

In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain the benefit of the provisions of Articles 78 and 126 of the present Convention. Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87, third paragraph.

(I skipped portions that dealt only with Protecting Power provisions, as non-state sponsored actors do not have one.)

So basically, under GC3:

1)We can try persons for violations of the GC (confirming Bart).

2)However, such persons still have rights under GC; in fact, they are to be treated at least as well as our own troops who have been convicted of crimes. So even though they are not POWs, they are required to be treated as such in most circumstances, most notably legal representation and humane treatment. Actual POW status, is irrelevant to treatment requirements.

Who here wants to argue that we should treat our own soldiers as we treat the prisoners at Gitmo?
 

John Yoo says that the most important aspect of our war against al-Qaida is gathering intelligence. This no doubt informed every decision made by the incumbent and his enablers.

This gives the war criminals too much credit. They know that almost all of the Guantanamo prisoners are innocent, having been turned over for ransom money. And they know that, even for those who are not innocent, torture does not produce reliable intelligence. As Andrew Sullivan repeats frequently, torture is done for the sake of torture. It is not done merely in misguided good faith.
 

"Member of an army" and "enemy combatant" are mutually exclusive

No, every member of an army is a (lawful) combatant. However, members of an army cannot in general be "unlawful enemy combatants" unless they act as spies or pretend to be civilians.

Jane's estimates that the Taliban army numbered around 45,000 on Sept. 10, 2001 (that included 10,000 Pakistanis and around 1000 al Qaeda front line troops). It is true that the administration does not want to extend GC protection to this force, but whether they are or are not entitled to POW status is different from the question of whether they can be detained by the military.

So far, not a single detainee has asserted his rights under the GC. We know that because the Secretary of the Navy stated that if anyone did this, the CSRT could become the tribunal required under Article 5 of the GC, but then the SecDef failed to write the necessary regulations to describe how this would happen this happen. This almost became a crisis when one detainee discussed his possible POW status with the CSRT, but then at the last minute backed off and did not claim POW status.

A basic requirement of lawful combatant status is that you may not hide or dispute your status. Anyone who uses a CSRT to dispute his status as a combatant cannot subsequently claim to be a POW. Only someone who has always admitted to being a combatant can then make the claim of GC protection.

It seems pretty clear to me that the 45,000 soldiers that represented the Army of Afghanistan on 9/10 would meet at least one of the 6 alternative criteria of GC III Article 4, particularly "3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." However, you can't determine the question without a test case, and so far nobody has stood up to make the claim.
 

The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war

I was a history major back in college, so I'll leave the legal arguments to others, but I can provide some pretty good reasons as to why Bart presents an evil point of view.
Back during the late 90s, early 00s, the "anti-globalizers" (They didn't like the name, but never came up with a better one) came up with a term for this phenomenon. They called it "The race to the bottom." Basically, if there is no legal floor set under members, then everyone will reach for lower and lower standards of behavior (In this case, lower and lower working conditions for their own citizens). If we all start taking the poor behavior of others into account and using their behavior to justify our own, there will very soon be no standards left.
The Irish came up with an even better term, "rack rents." A peasant would pay rent to his landlord by pledging some of his crops. Well, once land got tight, peasants would pledge larger and larger portions of their crops in order to compete with each other. Within a few decades, peasants would pledge such a large portion of their crops that they didn't have anything left for their own survival, let alone enough to sell on the market. So it was kind of like being stretched on a rack. The answer was to set a floor under what a peasant could pledge as rent. Landlords were unhappy with this of course, as this lowered their rents.
I can't see any way to force groups like al Qaeda to observe higher and better standards of behavior. I would just note that the Chinese used to bind the feet of their high-born women. When Europeans noted this, they were horrified and made it clear that civilized people just didn't do such things. My professor told us that they stopped, and that they stopped pretty much entirely due to the noted disapproval of Europeans.
 

Clearly, "intelligence value" is useful only because there is no way to evaluate it. The test is, what things the guy knows that we do not know. Because we do not know, we conclude that the intelligence value exists.

Bart is full of the most preposterous arguments, like "Since the dawn of organized warfare, one of the primary reasons the military captures and detains the enemy is to gather intelligence."

Securing supplies of slaves was also one of the primary reasons for military captures since the dawn of organized warfare. Because POWs cannot be interrogated, keeping them beyond some minimum period has no inteligence justification. But we are not talking about POW, but a never hitherto identified "unlawful combatants".

Who are defined as individuals beyond scope of human laws, so no norms apply in handling them.

To all apologists like bart: if this treatment is so legal, why the detainees are not brought to American soil, where it would be easier to have translators, chaplains, psychologists and other relevant specialists? [Correct answer: because Administration is creating fictional "law free zones" where it breaks laws as it pleases (or deputizes private contractors to do so).]
 

arne & co:

"Bart" DePalma: The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

Please cite to the GC sections that provide that those that "disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death" do not qualify as POWs.

Arne, you are being willfully obtuse and well know that Article 4 of the GC provides the appropriate definitions of a POW for the purposes of the GCs and Article 3 provides the minimum standards for treating captured enemy combatants who do not meet the criterion of POWs. However, I am taking the time to provide a link because it appears several here are unaware of what the GCs actually provide on the subject.
 

The "intelligence value," in many of these cases, I fear, is not the information that we could gain from them, but the reputed value of not letting the detainees tell the world what U.S. intelligence agents have done to them while they were incarcerated as enemy combatants.

There is a long history of the U.S. of burying merely embarassing information about national security establishment screw ups in the name of national security.
 

Andrew:

We have released hundreds of prisoners knowing full well that many would publish propaganda lies about outlandish "torture" as instructed in the al Qaeda training manual.
 

But by now there cannot be very much intelligence value at Gitmo. These guys have been there five years. How can they know what's going on in AFganistan by now? And our military needs to know where the safe houses are in Baghdad and who is making roadside bombs, not which day falafel is served for lunch.

Gitmo being kept open is all about an army bureaucratic turf war, no general wants to give up his cushy big footprint in the military, with a big budget and lots of men and job security. it's organizational principles and politics at play here , too, not just nefarious treatment of detainees.
 

I just noticed in the Calabresi & Agudo study of 1868 state constitutions (at page 80) that a handful of states prohibited the unreasonable detention of witnesses.
 

We have released hundreds of prisoners knowing full well that many would publish propaganda lies about outlandish "torture" as instructed in the al Qaeda training manual.

Which is why the videotapes had to be destroyed ASAP.....

Of course, those that hadn't had the benefit of a U of AQ education were somewhat at a loss and had to extemporise.

Cheers,
 

Abu Hamza:

Gitmo being kept open is all about an army bureaucratic turf war....

It's about this. Pressure from the top.

Cheers,
 

"Bart" DePalma:

"Bart" DePalma: The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

[Arne]: Please cite to the GC sections that provide that those that "disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death" do not qualify as POWs.

Arne, you are being willfully obtuse and well know that Article 4 of the GC provides the appropriate definitions of a POW for the purposes of the GCs and Article 3 provides the minimum standards for treating captured enemy combatants who do not meet the criterion of POWs.

No, I'm not being willfully obtuse. I'm quite aware of both CA3, the commentary thereon, and Article 4 of GC3. I'd note that none of these support the language you used there. I object in particular to your implicit claim (addressed by Fraud Guy above) that the (alleged) failure of the detainees (or of the organisation/quasi-state that they allegedly belong to) to extend GC rights to their "enemies" (or to follow the more vague "laws of war") relieves us of the responsibility to extend such to them. This in particular is simply false.

I understand that you and others have claimed (in various ways) that there's a "black hole" in the Geneva Conventions, and that the detainees fall into this "black hole" and thus are not protected under the Geneva Conventions. However, this is far from obvious, and requires a Yoo-ey parsing of both the GC and substantive law. In particular, I think that the extension of 'guilt' to a group by decree, and then the assignation of rights (or lack thereof) to all alleged members of that group so designated by one party, contravenes pretty much any fair-minded person's sense of due process, at the very least. Without a particularised determination that a specific individual had thus 'violated' the laws of war (or at the very least, falls outside the provisions [and protection] of GC3 Article 4), this excuse for denying them GC protections fails any test of rationality. Even in WWII, it was not sufficient to hang someone just to 'determine', e.g., that the Nazi SS or the Imperial Japanese Army had 'violated' the laws of war en masse, leaving only for the trial the factual determination of whether any person was in fact a member of said organisations. In the circumstances at bar here, the determination that the detainees were actually "al Qaeda" has been shown to be woefully incorrect.

Cheers,
 

Arne, you are being willfully obtuse and well know that Article 4 of the GC provides the appropriate definitions of a POW for the purposes of the GCs and Article 3 provides the minimum standards for treating captured enemy combatants who do not meet the criterion of POWs.

Bart, it is you who are being willfully obtuse. The sections of GC I have already cited specifically (which are to be found at your link) cover the types of detainees that you claim are not subject to GC because they have violated GC, including those who:

do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death."

That makes them war criminals, which the cited sections cover.
 

"So far, not a single detainee has asserted his rights under the GC. " (geneva conventions...)

oh man... it bugs me to see people write this stuff.. people who have no clue what is being argued in the courts.... many of us have asserted rights under the GC for our gitmo clients... the courts (except the supreme court) are ignoring these arguments...and the supreme court is being ignored by the government... and the lower courts are paralyzed... we are in a legal crisis.
 

arne langsetmo said...

"Bart" DePalma: The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

[Arne]: Please cite to the GC sections that provide that those that "disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death" do not qualify as POWs.

BD: Arne, you are being willfully obtuse and well know that Article 4 of the GC provides the appropriate definitions of a POW for the purposes of the GCs and Article 3 provides the minimum standards for treating captured enemy combatants who do not meet the criterion of POWs.

Arne: No, I'm not being willfully obtuse. I'm quite aware of both CA3, the commentary thereon, and Article 4 of GC3. I'd note that none of these support the language you used there. I object in particular to your implicit claim (addressed by Fraud Guy above) that the (alleged) failure of the detainees (or of the organisation/quasi-state that they allegedly belong to) to extend GC rights to their "enemies" (or to follow the more vague "laws of war") relieves us of the responsibility to extend such to them. This in particular is simply false.

C'mon arne, I know you can read.

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

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...

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

This is precisely what I have posted above.

Arne: I understand that you and others have claimed (in various ways) that there's a "black hole" in the Geneva Conventions, and that the detainees fall into this "black hole" and thus are not protected under the Geneva Conventions.

You understand incorrectly. That is Yoo's position, not mine.

Did you even read my post which you quoted above?

Once again, I stated that captured al Qaeda did not qualify for the Article 4 privileges of POWs under the meaning of the GC, but rather fell under the default minimum standards of Article 3.

I think that the extension of 'guilt' to a group by decree, and then the assignation of rights (or lack thereof) to all alleged members of that group so designated by one party, contravenes pretty much any fair-minded person's sense of due process, at the very least.

That is all well and good, but GC Article 4 above treats captures as members of their parent military organization and conditions eligibility for POW privileges by the activities of the military organizations.

Without a particularised determination that a specific individual had thus 'violated' the laws of war (or at the very least, falls outside the provisions [and protection] of GC3 Article 4), this excuse for denying them GC protections fails any test of rationality.

Even under your proposed standards, these al Qaeda captures at the very least individually knew that they were fighting in civilian clothing without insignia. That alone denies them POW privileges under the GC.

Even in WWII, it was not sufficient to hang someone just to 'determine', e.g., that the Nazi SS or the Imperial Japanese Army had 'violated' the laws of war en masse, leaving only for the trial the factual determination of whether any person was in fact a member of said organisations.

Like Eric, you are arguing about war crimes procedures and penalties. That is not the subject of any of my posts here. My only point is that al Qaeda does not fall under the GC Article 4 definition of a POW and is not entitled to POW privileges while being held during the war. I am not addressing war crimes prosecutions.
 

Like Eric, you are arguing about war crimes procedures and penalties. That is not the subject of any of my posts here. My only point is that al Qaeda does not fall under the GC Article 4 definition of a POW and is not entitled to POW privileges while being held during the war. I am not addressing war crimes prosecutions.

You have yet to address Art. 129, however.
 

"Bart" DePalma:

["Bart"]: Arne, you are being willfully obtuse and well know that Article 4 of the GC provides the appropriate definitions of a POW for the purposes of the GCs and Article 3 provides the minimum standards for treating captured enemy combatants who do not meet the criterion of POWs.

[Arne]: No, I'm not being willfully obtuse. I'm quite aware of both CA3, the commentary thereon, and Article 4 of GC3. I'd note that none of these support the language you used there. I object in particular to your implicit claim (addressed by Fraud Guy above) that the (alleged) failure of the detainees (or of the organisation/quasi-state that they allegedly belong to) to extend GC rights to their "enemies" (or to follow the more vague "laws of war") relieves us of the responsibility to extend such to them. This in particular is simply false.

C'mon arne, I know you can read.

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy...

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...

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

Note the bolded part. Not following the "laws and customs of war" is not an obligatory exclusionary clause, rather, following the "laws and customs of war" is one inclusive clause. It is arguable whether the specific detainees in our custody deserve to be considered POWs (although I still maintain that the maladministration's initial claim -- that anyone alleged to be "al Qaeda" is, by virtue of the maladministration's "designation" of al Qaeda as a Terra-ist organisation, not a POW (or civilian) -- is wrong).

But the claim that that any and all such people are not POWs by virtue of their own alleged failure to follow the "laws and customs of war" is simply wrong; if they should be "members of regular armed forces", for instance, they get this designation regardless of any such alleged behaviour (and that might be reasonably argued for Taliban detainees, for one). Note that this does not make them immune from prosecution for war crimes ... or even theft or rape, should such crimes also be punishable if committed by our soldiers. The POW designation doesn't prevent trial (as Fraud Guy pointed out), albeit GC3 specifies the minimum standards for such trials.

Cheers,
 

"Bart" DePalma:

[Arne]: I understand that you and others have claimed (in various ways) that there's a "black hole" in the Geneva Conventions, and that the detainees fall into this "black hole" and thus are not protected under the Geneva Conventions.

You understand incorrectly. That is Yoo's position, not mine.

Did you even read my post which you quoted above?

Once again, I stated that captured al Qaeda did not qualify for the Article 4 privileges of POWs under the meaning of the GC, but rather fell under the default minimum standards of Article 3.

OIC.

"Article 3

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

"1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

"(b) Taking of hostages;

"(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

"(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Part d). would seem to conflict with your previous assertions that any "illegal enemy combatant" captured may be summarily executed.

As to the other three then, I guess you agree that the maladministration has committed a grave breach of the Geneva Conventions in its flagrant disregard of clauses a). and c). (not to mention its mistaken position that CA3 does not apply to the alleged al Qaeda detainees).

Glad to have you on our side, "Bart". When should we start the war crimes trials?

Cheers,
 

"Bart" DePalma:

[Arne]: I think that the extension of 'guilt' to a group by decree, and then the assignation of rights (or lack thereof) to all alleged members of that group so designated by one party, contravenes pretty much any fair-minded person's sense of due process, at the very least.

That is all well and good, but GC Article 4 above treats captures as members of their parent military organization and conditions eligibility for POW privileges by the activities of the military organizations.

As I pointed out in a previous post, the clauses of GC3 Article 4 are inclusive, not exclusive. This destroys the 'logic' of such a "group determination".

[Arne]: Without a particularised determination that a specific individual had thus 'violated' the laws of war (or at the very least, falls outside the provisions [and protection] of GC3 Article 4), this excuse for denying them GC protections fails any test of rationality.

Even under your proposed standards, these al Qaeda captures at the very least individually knew that they were fighting in civilian clothing without insignia....

Which ones, "Bart"? Be specific now. And once again, must I emphasise that GC3 Article 4 says nowhere that those "fighting in civilian clothing without insignia" are necessarily not POWs?

That alone denies them POW privileges under the GC.

Huh? Since when?

[Arne]: Even in WWII, it was not sufficient to hang someone just to 'determine', e.g., that the Nazi SS or the Imperial Japanese Army had 'violated' the laws of war en masse, leaving only for the trial the factual determination of whether any person was in fact a member of said organisations.

Like Eric, you are arguing about war crimes procedures and penalties. That is not the subject of any of my posts here. My only point is that al Qaeda does not fall under the GC Article 4 definition of a POW and is not entitled to POW privileges while being held during the war. I am not addressing war crimes prosecutions.

Do you disagree with the principles inherent in my example?

Cheers,
 

Fraud Guy:

Article 129 deals with penal sanctions against those accused of grave violations of the GCs and the rights of the accused.

Detention of an enemy combatant for the duration of the war is a preventative and not a penal sanction.

Consequently, I do not see how Article 129 applies here.

Do you have some authority that Article 129 applies to combatant status hearings?
 

Arne:

Prior to the GC, unlawful enemy combatants could and were executed under the law of war upon a determination that they were unlawful enemy combatants.

Article III of the GC adopted after WWII changed that and established a higher standard.

My point in making that observation was to rebut the various claims that unlawful enemy combatants had rights extended to civilian criminal suspects.

In fact, they only have the minimal rights extended by Article 3 of the GC.

BTW, I will decline your kind invitation to start another definition of torture argument.
 

"Bart" DePalma:

Prior to the GC, unlawful enemy combatants could and were executed under the law of war upon a determination that they were unlawful enemy combatants.

Article III of the GC adopted after WWII changed that and established a higher standard.

"No matter how learned my correspondent, I do not accept bare assertions as undisputed fact."

My point in making that observation was to rebut the various claims that unlawful enemy combatants had rights extended to civilian criminal suspects.

Ditto last comment.

In fact, they only have the minimal rights extended by Article 3 of the GC.

Ditto last comment.

BTW, I will decline your kind invitation to start another definition of torture argument.

I didn't start any "torture" argument. Yoo did.

We basically know your position. If the maladministration did it, it was not only necessary, it was effective and (therefore) legal. Dose that pretty much sum it up?

Cheers,
 

Question from Bart:

Article 129 deals with penal sanctions against those accused of grave violations of the GCs and the rights of the accused.
Detention of an enemy combatant for the duration of the war is a preventative and not a penal sanction.
Consequently, I do not see how Article 129 applies here.
Do you have some authority that Article 129 applies to combatant status hearings?

Previous statement from Bart:

Whether the enemy combatant comes from a regular or irregular military is irrelevant to determining if they qualify for privileged POW status under the GCs. The determining factor is whether they follow the laws of war and the GC.

The reason why al Qaeda do not meet the GC's definition of privileged POWs is because they do not follow the laws of war when they disguise themselves as civilians while mass murdering civilians and do not extend GC rights to our soldiers when they torture them to death.

I never stated or asked whether Article 129 applies to combatant status hearings. Such a claim is completely manufactured by you (I accept your apology in advance). I only have argued that, pursuant to Article 129, and the other articles it refers to, that captured accused war criminals (which, by definition, includes suspect or probable Al-Qaeda who violate GC) are covered by GC required levels of treatment.

Please answer that argument, and try to stay on topic.
 

This gives the war criminals too much credit. They know that almost all of the Guantanamo prisoners are innocent, having been turned over for ransom money. And they know that, even for those who are not innocent, torture does not produce reliable intelligence. As Andrew Sullivan repeats frequently, torture is done for the sake of torture. It is not done merely in misguided good faith.

# posted by Henry : 9:26 AM

Torture is done to terrorize -- to send a message beyond the immediate victims of it.

And as Bart would confirm, only terrorists use torture. Except that when those terrorists are in official positions of gov't power, such as Saddam Hussein, Chairman Mao, Adolph Hitler, Joe Stalin, or George Bush, they are also war criminals in addition to being (state) terrorists.
 

"Bart" claims to be a lawyer, but spit on ehtics and law with every utterance. His claims against those he has already convicted without bothering with the Convention and US requirements of due process, beginning with presumption of innocence, are by analogy simply this:

If a person commits murder, he therefore is not subject to the laws of murder [which should mean he is therefore not subject to prosecution under the laws of murder -- but, we're dealing with Barfin' Bart here], therefore is outside the rule of law, therefore has no rights -- except to be presumed guilty, tortured for confession, and then given a show trial.

As alternative to the stories Bart loves to tell himself and the world about how the US is the paragon of freedom, liberty, democracy, rule of law, justice, and sour apple pie.
 

"Since the dawn of organized warfare, one of the primary reasons the military captures and detains the enemy is to gather intelligence. This is hardly anything new and is perfectly legitimate." This statement is grossly inaccurate. I don't know what history books Bart reads, but they're not works on the history of warfare. Prisoners of war, if they were kept alive after a battle, were not detained because of any intelligence they might have, but because of their monetary value. Prisoners of war were were either sold as slaves, or, later when that practice ended, nobles (the high value detainees of history) were ransomed back to the enemy. If a prisoner of war did not have any monetary value (i.e. because they were peasants) they were usually executed because historically armies lacked the wherewithal to house large numbers of captured combatants.
 

L.S.,

@Bart et. al.: Please choose already! If they're POWs, it's the 3rd convention, if they're not POW, they're civilians under enemy control, which means they're covered by the 4th convention.

Either is fine by me, but please stop trying to have your cake and eat it, too.

Just some quotes from GA4:

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. (...)

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitutiOn, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.


Art. 79. The Parties to the conflict shall not intern protected persons, except in accordance with the provisions of Articles 41, 42, 43, 68 and 78.

Art. 80. Internees shall retain their full civil capacity and shall exercise such attendant rights as may be compatible with their status.

Art. 86. The Detaining Power shall place at the disposal of interned persons, of whatever denomination, premises suitable for the holding of their religious services.

Art. 93. Internees shall enjoy complete latitude in the exercise of their religious duties, including attendance at the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining authorities.

Ministers of religion who are interned shall be allowed to minister freely to the members of their community. For this purpose the Detaining Power shall ensure their equitable allocation amongst the various places of internment in which there are internees speaking the same language and belonging to the same religion. Should such ministers be too few in number, the Detaining Power shall provide them with the necessary facilities, including means of transport, for moving from one place to another, and they shall be authorized to visit any internees who are in hospital. Ministers of religion shall be at liberty to correspond on matters concerning their ministry with the religious authorities in the country of detention and, as far as possible, with the international religious organizations of their faith. Such correspondence shall not be considered as forming a part of the quota mentioned in Article 107. It shall, however, be subject to the provisions of Article 112.

When internees do not have at their disposal the assistance of ministers of their faith, or should these latter be too few in number, the local religious authorities of the same faith may appoint, in agreement with the Detaining Power, a minister of the internees' faith or, if such a course is feasible from a denominational point of view, a minister of similar religion or a qualified layman. The latter shall enjoy the facilities granted to the ministry he has assumed. Persons so appointed shall comply with all regulations laid down by the Detaining Power in the interests of discipline and security.

Art. 107. Internees shall be allowed to send and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each internee, the said number shall not be less than two letters and four cards monthly; these shall be drawn up so as to conform as closely as possible to the models annexed to the present Convention. If limitations must be placed on the correspondence addressed to internees, they may be ordered only by the Power to which such internees owe allegiance, possibly at the request of the Detaining Power. Such letters and cards must be conveyed with reasonable despatch; they may not be delayed or retained for disciplinary reasons.

Internees who have been a long time without news, or who find it impossible to receive news from their relatives, or to give them news by the ordinary postal route, as well as those who are at a considerable distance from their homes, shall be allowed to send telegrams, the charges being paid by them in the currency at their disposal. They shall likewise benefit by this provision in cases which are recognized to be urgent.

As a rule, internees' mail shall be written in their own language. The Parties to the conflict may authorize correspondence in other languages.
 

if they're not POW, they're civilians under enemy control, which means they're covered by the 4th convention.

It is a common misconception that GC IV covers everyone not covered by GC III. Read more of Article 4: "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."

Thus GC IV covers only Afghan civilians and civilians in Afghanistan who are citizens of nations with who the US does not have diplomatic relations (Iran, North Korea). They are covered only by Common Article 3, although it is clear that the GC expects their legitimate interests will be represented by the ambassadors of their home countries.
 

L.S.,

@Howardgilbert: Sorry, my mistake, clearly the US is free to torture however many brits it wishes. (Detain them indefinately, rendition them to God only knows where, etc.)
How do you go from the text of the Geneva Conventions to the idea that there is somehow a category of detainees that are neither POWs nor civilians and with whom the detaining power can do as it pleases?
 

martinned,

As I pointed out previously in the thread, persons who do not fall under the category of POWs (GC3), or as civilians (GC4) because they are, in the words of the administration, unlawful enemy combatants (because they do not abide by the GCs), still are covered under many of the GC treatment requirements via GC3, Art. 129.
 

L.S.,

@Fraud Guy: Which side are you trying to argue here? It seems like a very Bart thing to say: "There's a third category, because the administration says there is." As far as I can tell, they just made this whole enemy combattant thing up, because it suited them.
 

The Geneva Conventions control our actions against those with whom we are at war. GC III governs enemy soldiers (not all of whom are citizens of the enemy country) and GC IV governs the other enemy citizens (civilians). The GC assumes that foreign citizens of a neutral or allied country have no need of its protection. The Geneva Convention does not protect Brits who come to visit NYC, or those in research facilities on Antartica, or those on foreign flag ships inside the 12 mile limit. The GC is not the sum total of international law. It governs the relationship of nations at war with each other. Everything else (peace for example) is governed by other arrangements.

Now it turns out that 60 years later this leaves a rather big loophole if you do not regard al Qaeda as a unit of the Afghan Army (which I argued above should be true). Bin Laden is a Saudi, Zawahiri is an Egyptian, Padilla was an American, KSM is Pakistani, Khadr is Canadian, and Hicks was an Australian. None of the prominent members of the al Qaeda military force were Afghans, so none are covered by GC IV.

Someone who would be covered by GC III if captured on the battlefield is not covered by it if he is captured as a spy. So while KSM might have been a lawful enemy combatant in Afghanistan, he was captured pretending to be a civilian in Pakistan. Since we are not at war with Pakistan, just because he is a civilian does not mean GC IV should apply.
 

L.S.,

@Howardgilbert: I guess what you're saying is that the drafters of the Geneva Conventions, apparently in error, believed that signatory states would respect the law everywhere that's not the battlefield. Since the current US administration has taken the position that it only has to obey the law in the US, and even that only grudgingly, this "loophole" emerges. Hmmm...
 

ponce & co:

What is all this nonsense about slaves and such?

The primary military use for captured enemy prisoners is intelligence gathering. Except for intelligence gathering, enemy POWs are of no military use and instead drain military resources guarding, sheltering and feeding them.

Are there any veterans who served as infantry or intelligence here? Apparently not. In that case, let me clue you into the basics in handling enemy POWs.

After securing a captured enemy prisoner, the first things you do are segregate the officers from the troops so they cannot come up with cover stories and then you search the prisoners for documents and other items which are immediately turned over to the intelligence section. The intel folks will then interrogate the prisoners in short order seeking actionable intelligence about the dispositions and intentions of the enemy.

The intelligence gathered from enemy prisoners is so valuable that commanders will often send infantry patrols out into enemy lines and lose men just to capture enemy soldiers to interrogate.
 

After securing a captured enemy prisoner, the first things you do are segregate the officers from the troops so they cannot come up with cover stories

Cover stories? Baghdad, you "fought" in Operation Desert Parade. The only "cover story" you heard was "I'm thirsty and sick of having B-52s drop bombs on me".

Of course, that assumes you didn't murder them in cold blood, which I suspect is what really happened.

The intelligence gathered from enemy prisoners is so valuable that commanders will often send infantry patrols out into enemy lines and lose men just to capture enemy soldiers to interrogate.

Many of the prisoners at Gitmo have been there for years. Their value as intel sources is ZERO.
 

Howard Gilbert:

Someone who would be covered by GC III if captured on the battlefield is not covered by it if he is captured as a spy.

Not true. If he's a member of the regular armed forces (and just a dog-tag is probably sufficient to show that), he's a POW. That doesn't free him from being tried as a spy. But he's nonetheless a POW, and needs to be tried consistent with GC3, Chapter III, Section III (Articles 99 et seq.).

Cheers,
 

Why the grunts hate REMFs (know any such around here?):

The intelligence gathered from enemy prisoners is so valuable that commanders will often send infantry patrols out into enemy lines and lose men just to capture enemy soldiers to interrogate.

I suspect that a certain somebody would have gotten fragged in the sh*te bucket we called 'Nam....

Cheers,
 

martinned,

Sorry for the confusion; I was leaving for a ball game and rushed my earlier response.

Basically, the maladministration and its apologists have claimed that terrorists violate the GCs through their terrorist acts (which generally do fall into the war crimes specifically stated in GC3, Art. 130). They further claim that these violators can be denied any protections of the GCs because of that violation (the infamous black hole for unlawful enemy combatants).

My argument is that the GCs do include protections for those who are accused and/or convicted of violating the GCs even though they do not qualify as civilians or regular POWs. The basis for treatment of such criminals (who have violated the laws of war contained in the GCs) derive from GC3, Article 129, which then refers to several other articles for specific protections. All told, many of the protections that a regular POW would receive are also supposed to be supplied to such accused/convicted criminals. This includes proper legal representation, treatment equivalent to that of the Detaining Power's military personnel, and humane treatment.

There is no hole, except in their parsing of the GCs.
 

"What is all this nonsense about slaves and such?"

Bart, you were trying to use a historical argument ("Since the dawn of organized warfare"), stating that traditionally captured enemies were interrogated for useful intelligence.

Basically, commenters here are showing the absurdity of your position, since, for a very long historical time, another use of captured enemies were as a pool of forced labor. This is up to and including WWII. That is why large portions of GC3 deal with appropriate tasks that can be given to POWs, to stop an age old practice that goes back prior to the dawn of organized warfare. The GCs were written and agreed to by most nations because they wanted to stop abuses of those captured in war, regardless of status; so included in those agreed to restrictions were forced labor and torture.

At least the Gitmo detainees are not being enslaved in our factories.
 

At least the Gitmo detainees are not being enslaved in our factories.

# posted by Fraud Guy : 2:52 AM

Don't give them any ideas...
 

Silly Bartbuster, they don't need detainees for that. That's what the tax cuts and mortgage crisis were for. In the words of one Republican:

"I am so proud to be from the state of Minnesota. We’re the workingest state in the country, and the reason why we are, we have more people that are working longer hours, we have people that are working two jobs."1

Who needs actual slavery when you can have wage slavery and declining standards of living for the bottom 80% of the country?

1) Rep. Michelle Bachmann (R-MN)