Federal court rules against the Geneva Convention

posted at 2:14 pm on April 2, 2009 by Ed Morrissey

How ridiculous has the judicial intrusion on military action become?  A federal judge ruled today that terrorists captured on foreign battlefields and held by the military should have access to American courts.  Not only does that arrogantly assume American sovereignty over Afghanistan, but it also violates the Geneva Convention:

A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.

U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.

Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

This is, simply put, a war by the judiciary on American conduct of war.  The Constitution gives the judiciary no role whatsoever in the prosecution of war or in handling the prisoners our military captures.  War powers are explicitly split between the executive and legislative branches.  The practical reading of this order is that the federal courts have some sort of jurisdiction over military activity in Afghanistan, which proceeds from the equally fallacious rulings about Gitmo.

Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention.  Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

We do not try our military personnel in civil court for offenses committed in the service.  Therefore, we do not have the right to try prisoners in our civil courts, either.

What does this order do?  It interferes with military operations by treating captured prisoners as having Constitutional guarantees intended for the maintenance of civil order.  Prisoners now will get the right to habeas corpus, turning soldiers into police officers and key intelligence into discovery material.  No one can fight a war with a Miranda warning in their back pocket, nor should they.

The net effect of this will be to push the military into killing its targets rather than capturing them, or to push renditions instead.  Congress needs to step in and stop this ridiculous overreach by the federal judiciary.

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Romeo13 on April 2, 2009 at 3:45 PM

LOL, then you’re totally full of crap. LOL. You’re an embarrassment. LOL.

Proud Rino on April 2, 2009 at 3:48 PM

And I’m done here for today, I just wanted Romeo the Geneva Conventions Expert to admit he was totally full of crap before I left.

Proud Rino on April 2, 2009 at 3:50 PM

Romeo13 on April 2, 2009 at 3:45 PM

Yeah, Romeo, you ‘quoted’ something from memory. This is the internet and that isn’t good enough – you’ve got to have at least 2 scholarly sources and a bibliography /sarc

gwelf on April 2, 2009 at 3:52 PM

The Messiah voted, “Present….”

DL13 on April 2, 2009 at 3:53 PM

No. I was told that you can murder some people without a trial – “out of hand” was the phrase – even if they’ve surrendered if the laws of that country allow it, and that this was in the Geneva Coventions.

I asked where one might find that provision in the Geneva Conventions, and I’ve gotten lots of interesting answers that are not what I asked for.

Proud Rino on April 2, 2009 at 3:40 PM

I see you Alan Colmes, dont try to disguise yourself with some witty little internet handle

Viper1 on April 2, 2009 at 4:07 PM

so this liberal judge just decided that they ARE unlawful enemy combatants, and the the GC doesn’t apply to them. sweet. have at it boys.

todler on April 2, 2009 at 4:08 PM

Proud Rino: So you support giving terrorists full US Constitutional Rights, correct? I just want to make that clear. In your opinion, these people who behead civilians in the name of a war they are fighting (their term, too) deserve nothing less than being treated as if they had written a bad check, right?

Look, the Geneva Conventions do not have a “Here is where you can shoot people” phrase. But they DO carefully say what people are protected under those conventions. And terrorists do not come under those protections.

Vanceone on April 2, 2009 at 4:08 PM

I seem to recall some confusion in earlier conversations on a possible counter revolution as to whom the patriots would actually be fighting. I consider that question resolved with this post.

Maquis on April 2, 2009 at 4:09 PM

This is asinine. Im thinking all judges are as incompetent as the president.

They all need a refresher course in Constitutional law! ugh

becki51758 on April 2, 2009 at 4:09 PM

It’s going to take some sustained a55 whoopin’ to straighten all of this out.

ronsfi on April 2, 2009 at 4:21 PM

You forget……we are no longer fighting a war in Afghanistan….
It is hereto referred to as “Overseas Contingency Operation”

subbottomfeeder on April 2, 2009 at 4:22 PM

From Genevaconventions.org

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

The Talaban/Al Quada folks aren’t POWs since they willfully break B) C) and D)

Since they don’t meet the guidelines, Article IV applies:
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.

So this means we can do whatever the hell we want with them.

The_Livewire on April 2, 2009 at 4:29 PM

The Geneva Conventions sought to protect civilian populations as much as is possible during wartime, but ensuring combatants adhered to the rules of war (e.g. no hiding howitzers in a hospital).

Our courts and the international left have completely undermined these rules, in order to impart some childish notion of “fairness” to underdog terrorists.

In the process, we have more war and more terrorists doing more that will get more innocent civilians killed.

Weak, feckless and stupid liberals cause more war than they prevent.

NoDonkey on April 2, 2009 at 4:32 PM

To be sure, American courts might not have occasion to decide the question whether al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision – the 1950 ruling in Johnson v. Eisentrager – holds that enemy aliens who have not entered the United States are not entitled to access to our courts.

Johan Klaus on April 2, 2009 at 4:48 PM

Proud RINO, why don’t you show us where the Geneva Conventions, that the US of A has agreed to, that gives people not meeting the requirements to be a civilian, or a lawful combatant any protection?

darktood on April 2, 2009 at 4:49 PM

He was a Bush appointee which is sad and frightening. My best guess is that the judge is looking at his future in the next eight years and figures he’ll never get Obama to appoint him to the Circuit Court if he supports Bush policies and/or rules against civilian trials or in favor of rendition. The decision is so logically flawed that I feel sorry for the country to have this man on the bench. Once again Judges have no knowledge of the constitution or separation of powers or the Geneva Convention and just make something up out of ‘fairness’, that is against hundreds of year of tradition and practice and which results in the endangerment of our country. But somehow I doubt this Judge will make Oberjerk’s worst person of the day/week, although he is.

eaglewingz08 on April 2, 2009 at 4:49 PM

This judge should be impeached.

Johan Klaus on April 2, 2009 at 4:52 PM

We need the in-field intel but I can’t say I’m sad about the likelihood certainty of fewer of their boys fighting against us.

macummings on April 2, 2009 at 4:55 PM

Speaking of unconstitutional, violation of the separation of powers, etc., why can’t we haul this “judge” for his misdeed or virtually the entire House and Senate for theirs into court? Is there no one with the know-how and guts to do it?

macummings on April 2, 2009 at 4:58 PM

I highly doubt leftists like “ProudRino” have actually read the Geneva Conventions, the Constitution, or anything of the like, nor does the “ProudRino” seem to care.
EVERY terrorist held at Gitmo should be dead under the Geneva Conventions, taken out and shot, no trial, no hearing and all done UNDER the rules of the Geneva Coventions themselves because under those Conventions, these terrorists recieve no Geneva Convention’s protection.
Don’t expect these narcissistic leftists to actually KNOW that or to have actually READ the Geneva Conventions Protocols.
The same holds true with waterboarding which is LEGAL under the Uniforn Code of Military Justice, thus SERE (Survival, Escape, Resistance, Evasion training) could not be conducted by the military….don’t expect leftists to know this though.
Discussing the Constitution, The Geneva Conventions, the UCMJ or other subjects with a leftist is a waste of time because leftists believe only THEY and the enemy are afforded protection under each…wait, I forgot, leftists ARE the enemy.

nelsonknows on April 2, 2009 at 4:59 PM

And I’m done here for today, I just wanted Romeo the Geneva Conventions Expert to admit he was totally full of crap before I left.

Proud Rino on April 2, 2009 at 3:50 PM

And I have been prooven wrong? Where?

I go to a business meeting, and this tool declares victory and goes away…. LOL..

As if he is the JUDGE in some non existant contest… and a time critical one at that… that I must produce a 150 year old quote on demand, in some nonexistant timeframe…

Sorry tool… I’m not here to proove or disproove a thing… but right back at you… please proove that I am incorrect….

Please, spend your time and effort… in a meaningless internet debate, it that is how you get your jollys…

Romeo13 on April 2, 2009 at 5:01 PM

nelsonknows on April 2, 2009 at 4:59 PM

Pretty much my point.

darktood on April 2, 2009 at 5:02 PM

This judge should be impeached.

Johan Klaus on April 2, 2009 at 4:52 PM

Need to go higher… he was just correctly interpreting what the Supremes wrote… and the consequences.

Romeo13 on April 2, 2009 at 5:02 PM

darktood on April 2, 2009 at 4:49 PM

The GCP clearly states that those captured on the battlefield, must meet four criterea to be given protection, those that do not are at the whim of the capturing party but don’t expect leftists to know this or even care.

nelsonknows on April 2, 2009 at 5:04 PM

Discussing the Constitution, The Geneva Conventions, the UCMJ or other subjects with a leftist is a waste of time because leftists believe only THEY and the enemy are afforded protection under each…wait, I forgot, leftists ARE the enemy.

nelsonknows on April 2, 2009 at 4:59 PM

Yeah, would have been funny to have him sit in one of the classes I used to give on Maritime Law, International Law, the Geneva, US Law, and how they interact during boarding actions… especialy in shoot no shoot situations…

But, then again… with the people taking those classes, he may not have lasted long…

Romeo13 on April 2, 2009 at 5:05 PM

The_Livewire on April 2, 2009 at 4:29 PM

Well put, good job but don’t expect leftist to have actually read or to comprehend this.

nelsonknows on April 2, 2009 at 5:08 PM

So this means we can do whatever the hell we want with them.

The_Livewire on April 2, 2009 at 4:29 PM

Problem is…. thats where the courts have stepped in…

Romeo13 on April 2, 2009 at 5:10 PM

Speaking of unconstitutional, violation of the separation of powers, etc., why can’t we haul this “judge” for his misdeed

macummings on April 2, 2009 at 4:58 PM

Hate to say it… but the Judge was bound by prior Supreme Court Precedent… which I’m sorry to say he correctly interpreted.

Part of being a Conservative Judge is READING the law, and precedents, as they are, not how you with them to be (thats a Liberal thing).

Romeo13 on April 2, 2009 at 5:12 PM

Romeo13 on April 2, 2009 at 5:12 PM

Actually, we HAVE seen judges overrule and critique Supreme Court Rulings such as U.S. V Miller, Everson V Board of Education and frankly, the Ninth “Circus” Court does this all of the time. The SCOTUS was overreaching its powers to rule on this matter in the first place, so can an Unconstitutional ruling be upheld? Actually it would have been required by this judges oath to rule AGAINST the SCOTUS.

nelsonknows on April 2, 2009 at 5:32 PM

Ah yes, whatever did happen to clarity?

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers – such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

Sounds like what we call ‘terrorists’, doesn’t it? That was a General Order for quite some time, indeed, over 30 years:


Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

Terrorism, as we call, it has gone by many names over the centuries, and it is covered since the time of Grotius and very explicitly under the Law of Nations, the latter written by de Vattel, and even further by Blackstone looking at the Common Law of England. Both Federalists and Anti-Federalists knew and cited the works of Grotius, de Vattel and Blackstone for helping to found how Nations work not only in peace but in war.

The best summary, and there are many from before the founding but using one that gets to the point, is that of de Vattel in Book III:

§ 67. It is to be distinguished from informal and unlawful war.

Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.

In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

Those were the ‘rules of the road’ for warfare at the founding and is explicitly given in the US Constitution under the Law of Nations penalty area for Congress to utilize (and there are quite a few things that can be examined in this realm beyond just terrorism). When people cite the Law of Nations it is a body of work that extends far back into antiquity, and how we come to understand it is that it describes how governments are formed and what their powers are not only internally but externally, also. Thus, even without having the body of work we can find that the Persian Empire and Sparta were operating under well conceived ideas of what States are, how they interact with each other and what sort of formalities are necessary. Even further you can go to the Trojan War and see it in action and even back then they knew about those we call, today, ‘terrorists’.

When you pick up the sword to attack others without any sovereign grant to do so, you are reclaiming all your liberties, positive and negative, and have stepped away from civilization. Only when civilization becomes decadent do we see trying to treat those who have become red of tooth and claw by their own deeds as ‘civilized’. To do that you must surrender to CIVIL authorities. Captain Morgan is the major case in point, accused of piracy he returned to England to surrender himself to civil authorities to be judged. As he could not know of a peace treaty signed between Spain and England he was CLEARED of the charges (and knighted for his work). If terrorists wanted to ‘surrender’ they would do that to CIVIL authorities: on the battlefield you yield yourself up to martial justice.

Why do terrorists not deserve a hearing in civil court?

They didn’t go to that venue to surrender.

They wanted all their liberties, and now they can pay the price for taking them back. No one forced them into such a primitive state of being: it was a free choice to make. Once made it is very hard to un-make it, save to show you are civilized and give yourself up to civil authority for justice.

We are all created equal.

Some choose to live in harmony with their fellow man and become part of this larger work around us called Nations.

And a very few scorn that to enforce their will on the world by waging war on their own, and they have foresworn all safe havens of civilization by doing so. They have even abrogated the Universal Charter of Human Rights by their actions. That has to say something, when they willfully give up having their human rights respected by their actions. They wanted the justice of the wilds. They had a choice to make and they stand by it by their actions. There are civil means to address their grievances, they choose not to use them.

ajacksonian on April 2, 2009 at 5:49 PM

The U.S. Supreme Court’s ruling that Gitmo scum have the right to legal precedures outside of the military system, in essence “because we are not under invasion” [ignoring the attack by foreign nationals upon the Pentagon, etc.] “or at war“, was an illegitimate and un-Constitutional overstepping of their powers, which DO NOT include deciding WHEN we are at war, or under invasion. That is Congress’ purview. Not the Court’s.

This current idiocy stems from that illegal SCOTUS over-reach.

Damned fools.

All of them.

Since not one of the Justices opposed the Court’s decision on its clearly un-Constitutional grounds.

I looked into a class action lawsuit aginst the Court at that time, but discovered that YOU CANNOT SUE THE SCOTUS, because there is no venue to judge them in.

They should have all been impeached and dismissed for malfeasance and imcompetence.

profitsbeard on April 2, 2009 at 6:33 PM

I’ve only got three words for you;

Shovel, and

Well, maybe that was four or five? You get the point. Can anyone in your worst oxycotton induced hallucinations imagine the Roosevelt era courts trying to stick their noses into way Ike was prosecuting the pasification of Germany after the surrender? Of course, they had a much better solution in how to deal with the “Werewolf’s” they caught doing terrorist acts. They lined them against a wall and shot them. These UN UNIFORMED non-soldiers we’re catching fighting us now should be treated a little better. Fed and bed while being pumped for information. Once dry, a firing squad. Period. They will keep themselves alive only while providing useful information. After that, it’s off to lunch with Allah!
Personally, I think executing the bastards in the field is more effective than any intelligence you could get. Once they watch enough of their flea bitten comrades being tore in half by M60’s, they’ll lose their will to stand in line to be next.

Falconsword on April 2, 2009 at 6:36 PM

we just can’t detain them indefinitely without charging them with some sort of crime, particularly when we’re in a conflict without a clearly defined finish line.

Proud Rino on April 2, 2009 at 2:31 PM

Gosh, I just never knew that the Revolution,Civil War, Spanish-American War, WW1, WW2,the Korean War, Vietnam all had PREARRANGED end dates.Who knew?


journeyintothewhirlwind on April 2, 2009 at 8:25 PM

“The court has made its ruling, let them enforce it” -Andrew Jackson

bookman on April 2, 2009 at 10:49 PM

Okay I have a solution that will make us all happy:

On all US military ammunition and ordinance simply etch or write the standard Miranda “rights” normally read to criminals.

That way they will have their rights given to them by members of the Armed Forces;

“You have the right to remain silent…” takes on a whole new meaning…..

Bubba Redneck on April 3, 2009 at 12:28 AM

hawkdriver on April 2, 2009 at 3:46 PM


Al in St. Lou on April 3, 2009 at 5:18 PM