if the former, perversely, have more robust rights than the latter, what incentive does that create?

Indeed. If enemy combatants wear uniforms and follow the Geneva Conventions, they end up having less rights than those who don’t wear uniforms and ignore the laws of war.

If I understand the history correctly, the Conventions explicitly wished to remove protections from those violating its norms in order to disincentivize (ugh) violations of the laws.

As the saying goes, subsidize a behavior (if you will), you get more of that behavior.

Although, one must be honest here: If Guantanamo Bay is indeed US territory, then a strong argument can be made that the detainees have habeas rights. Whether the DTA/MCA legislation provided sufficient safeguards for those rights (however prescribed) is another issue.

SteveMG on June 12, 2008 at 7:31 PM

And i think creating a presidence where we can hold people without charge, is a very dangerous one, that we would grow to regret.

Well, we’ve done that for over 200 years with aliens. E.g, WWII we held thousands of German POWs in America without them being charged or having a habeas hearing.

I don’t see the danger that’s emerged.

SteveMG on June 12, 2008 at 7:35 PM

we held German troops during a War with that soverign nation , not indivuals held for crimes against America.

These are not criminals we’re holding. They are enemy combatants captured on the battlefied during a war authorized by Congress. They are not committing crimes; they are committing acts of war. Blowing up a warship or an embassy is not a crime. It’s war.

We also held over 4,000 German and Italian physicists during WWII that we kidnapped.

The US – indeed as I understand it – no Western country in the history of habeas corpus – has extended habeas rights to enemy alien combatants/soldiers captured overseas.

You apparently view these people as criminals; we view them as combatants in a war.

SteveMG on June 12, 2008 at 7:48 PM

that’s perfectly fine. If they are POWs then treat them as POWs, and apply to them whatever laws apply to POWs under the Geneva conventions and U.S law.

That’s what we were doing before the Courts stepped in.

I.e., holding them at Guantanamo with military hearings to ensure that they were indeed combatants.

But the Courts have ruled that that isn’t sufficient.

And here we are.

SteveMG on June 12, 2008 at 8:04 PM

do those million get constitutional rights? Does each one get a trial and a taxpayer funded lawyer?

Before this decision was handed down, I’d say absolutely not. After all, we captured British soldiers during the War of 1812 and didn’t give them trials.

After this ruling, I’m not sure.

SteveMG on June 12, 2008 at 8:25 PM

Isn’t the obvious answer to detain them off of US soil? Why can’t we put them in a secure area in Iraq?

Well, if the Court believes that they have some sort of constitutional habeas rights (full or limited), then it doesn’t matter whether you detain them on the moon. Those rights exist wherever they are held.

I’m unclear as to whether Kennedy argued this point or whether because Gitmo is sovereign US territory that they have these rights.

Maybe a real smart person could step in.

SteveMG on June 12, 2008 at 8:39 PM

I don’t think it’s odd that we have a set of rules for dealing with uniformed soldiers and important assts of a soverign nation.

No, that wasn’t my question.

I’ll rephrase it:

Isn’t it dangerous to afford greater protections to those who violated the Geneva Conventions than to those who don’t violate it?

Aren’t we giving an incentive to ignore the norms of war?

if any uniformed members of the Afgan army were/are captured during conflict, then the Geneva conventions therefore apply to them. If not then who did we fight? A bunch of goat farmers with guns?

Your earlier argument was that it was okay to hold German POWs here in WWII because they came from a soverign nation.

Afghanistan was a sovereign nation; why doesn’t that standard apply?

Your argument is “because they didn’t wear uniforms”.

But they didn’t wear identifying uniforms because they were terrorists who wished to hide among the civilians.

Which are violations of the Geneva Conventions and means – as we come full circle – that we must give them more rights than if they wore uniforms.

We’re chasing our tails. You wish to (broadly speaking) treat these people like criminals and I view them as enemy combatants caught on the battlefield.

And so we wish to give them different rights.

I’d still like to know why you think the military tribunals aren’t sufficient to try these people.

SteveMG on June 12, 2008 at 9:06 PM