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.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2

Has this thread been approved by our intertube overlords?

lorien1973 on April 2, 2009 at 2:16 PM

Congress stepping in? Nah, not this congress…

DCJeff on April 2, 2009 at 2:16 PM

This is from the little known “POW penumbra.”

OhEssYouCowboys on April 2, 2009 at 2:16 PM

This ruling is not going to go over well in the New World Order that Brown announced today.

myrenovations on April 2, 2009 at 2:16 PM

American forces will be required to read the Miranda rights to all savages taken prisoner.

Can you imagine fighting WW2 like this?

America is lost.

OhEssYouCowboys on April 2, 2009 at 2:17 PM

Dude – that is a pic of one of the FEMA death camps… how’d you get that Ed?

gatorboy on April 2, 2009 at 2:18 PM

Hmm. Now, I may be a bit of a racist because I read, you know, that old Document known as the Constitution, but I seem to recall something along the lines of “treaties being the supreme law of the land” — subject to the Constitution, of course.

It seems to me that the Genenva Conventions, being a treaty we are subject to, would be the law of the land here, and we can’t override it.

In short, an appeal is easy.

Vanceone on April 2, 2009 at 2:18 PM

So judges use treaties and foreign laws we haven’t ratified as a basis for their rulings on US law but a treaty we did ratify can be ignored?

I’m missing something here. Oh yeah, logic.

Rocks on April 2, 2009 at 2:18 PM

How’s this waffle Obama?

the_nile on April 2, 2009 at 2:19 PM

A detainee is not the same thing as a prisoner of war, Ed.

Proud Rino on April 2, 2009 at 2:20 PM

The POW Public Defender office is gonna be busy.

OhEssYouCowboys on April 2, 2009 at 2:20 PM

This would have been unheard of back in the early 90s, when it was federal judges who were the ones being blown up.

Blake on April 2, 2009 at 2:20 PM

The supremes will need to stomp this turd.

dogsoldier on April 2, 2009 at 2:21 PM

This ruling is not going to go over well in the New World Order that Brown announced today.

myrenovations on April 2, 2009 at 2:16 PM

HA!

I can see we need a bigger, better World Judicial system to replace the outdated Federal courts.

You can’t fight it, its the NWO!

cntrlfrk on April 2, 2009 at 2:21 PM

Proud Rino: (otherwise known as “fascist enabler”): A “detainee” is not a prisoner of war? Then, pray tell me, WHO THE HECK IS a prisoner of war?

I say we go full fleged on the Geneva Convention: Any soldier caught not in uniform is summarily executed. That includes those like Michael Moore, who is no different than Adam Gahdan, really.

Vanceone on April 2, 2009 at 2:22 PM

Does the Geneva Conventions even apply? Do these scum now have uniforms beyond the same underwear the wear for six months straight?

WashJeff on April 2, 2009 at 2:22 PM

The venue of the American courts is, indeed, an impressive thing, nowadays.

OhEssYouCowboys on April 2, 2009 at 2:23 PM

The Judge’s background here

http://www.dcd.uscourts.gov/bates-bio.html

Del Dolemonte on April 2, 2009 at 2:23 PM

Congress needs to step in and stop this ridiculous overreach by the federal judiciary.

ED-it was a problem since, what, 200 years ago?
Elections for Judges? Not a good idea.
Anyone else have a solution to stop the judicial madness?
Maybe the POTUS could actually do his job & tell them to screw off?
Wouldn’t that work if we had a POTUS & Congress with ba!!z to assert their power by the people & obligation to uphold that pesky Constitution?

Badger40 on April 2, 2009 at 2:24 PM

Nuts.

Flyover Country on April 2, 2009 at 2:24 PM

Congress is in the process of acquiring more and more control, be it constitutional or otherwise. Asking them to adhere to Article 84 is mean, like taking candy from a baby. Barney Franks would cry harder and scream louder than anyone. They’re drunk with power, dangerous, and beyond arrogant.

Vermont Neighbor on April 2, 2009 at 2:25 PM

Side note: Does anyone else get taken to “Headlines” when clicking on “Home”?
To get back to the main posting page I have to reload HotAir.

right2bright on April 2, 2009 at 2:26 PM

Side note: Does anyone else get taken to “Headlines” when clicking on “Home”?
To get back to the main posting page I have to reload HotAir.

right2bright on April 2, 2009 at 2:26 PM

That happened to me about 90 minutes ago.

WashJeff on April 2, 2009 at 2:27 PM

Proud Rino: (otherwise known as “fascist enabler”): A “detainee” is not a prisoner of war? Then, pray tell me, WHO THE HECK IS a prisoner of war?

Vanceone on April 2, 2009 at 2:22 PM

We have not classified the detainees as POWs because, as Ed astutely noted, they are given certain rights as POWs. We have classified them as ‘unlawful combatants’ in the hopes of never having to bring them to trial, because we don’t have evidence on them even though we know they are mostly bad, bad people.

It might be worth clarifying your post, Ed. You’re not making the distinction very clearly and I’m a little confused as to the point you’re trying to make.

Proud Rino on April 2, 2009 at 2:28 PM

I’m with Vanceone – if we cannot ‘detain’ or ‘imprison’ enemy soldiers then we should exercise the option of executing them (after ‘debriefing’ them of any information they may have).

gwelf on April 2, 2009 at 2:28 PM

Interrogate prisoners on the battlefield if possible and then dispatch them immediately. No more taking prisoners alive. Problem solved.

Guardian on April 2, 2009 at 2:28 PM

That happened to me about 90 minutes ago.

WashJeff on April 2, 2009 at 2:27 PM

It has happened to me about 3 times in the past hour.

right2bright on April 2, 2009 at 2:29 PM

We should be killing these people anyway instead of taking prisoners. If necessary, an on-site interrogation should take place on the battlefield before execution.

jonezee on April 2, 2009 at 2:30 PM

Obama is in London talking to the press right now.

New form of torture: Listening to Obama answer questions to the media without a teleprompter. I feel like barfing right now.

jcheney on April 2, 2009 at 2:30 PM

Super secret message to all our brave men and women in uniform:

ixnay on isonerspray. On’tday orryway outabay ammoay, eway otgay oremay.

rbj on April 2, 2009 at 2:30 PM

if we cannot ‘detain’ or ‘imprison’ enemy soldiers then we should exercise the option of executing them (after ‘debriefing’ them of any information they may have).

gwelf on April 2, 2009 at 2:28 PM

Of course, executing people who have surrendered is against pretty much everything the United States stands for, and we can detain and imprison people, 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

looks like Judge Bates is angling for a Supreme Court spot. if he doesn’t pay his taxes on the 15th, he’ll be a shoe-in.

cpr on April 2, 2009 at 2:31 PM

Called this one when the Supreme Court made that descision… this Judge is just applying that silly ruling as the Supremes wrote it.

You see, we have a problem… we are NOT AT WAR! Congress has never declared war, and these are NOT POWs as they are not uniformed combatants. Even though taken by the Army, we are at best an allied power helping against an armed insurrection… but that calls for prisoners to be turned over to the Host Country… in this case Afganistan… which we don’t want to do because of torture problems.

This legal problem stems from us not following our own rules, by declaring war… and the legal limbo which it creates when fighting an non uniformed insurrection.

Romeo13 on April 2, 2009 at 2:31 PM

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.

He’s right here. And I seem to remember back when SCOTUS ruled this that many of us were saying this exact thing…if Cuban soil is now considered “American Soil” what isn’t?

Law of Unintendeded Consequences strikes again…just like almost every othertime Libs do something.

Rogue on April 2, 2009 at 2:31 PM

This legal problem stems from us not following our own rules, by declaring war… and the legal limbo which it creates when fighting an non uniformed insurrection.

Romeo13 on April 2, 2009 at 2:31 PM

Screw off Paulian…war is war.

Rogue on April 2, 2009 at 2:32 PM

agree with Guardian coerce intel from them then kill them – take no prisoners!

elduende on April 2, 2009 at 2:32 PM

Welcome to post-Constitutional America.

econavenger on April 2, 2009 at 2:33 PM

Simple answer – take no more prisoners, handle them on the battlefield.

katiejane on April 2, 2009 at 2:34 PM

Looks like the left wins another round in their war to destroy America.

johnsteele on April 2, 2009 at 2:34 PM

The court ruled IF we have a detainee….yada yada… Since they wear no uniforms and are aligned with no country, they are an aberration on the battlefield, to be deemed hostile and should be eliminated with extreme prejudice at that time. No prisoners, detainees, or plaintiffs. Problem solved.

HomeoftheBrave on April 2, 2009 at 2:35 PM

That happened to me about 90 minutes ago.

WashJeff on April 2, 2009 at 2:27 PM
It has happened to me about 3 times in the past hour.

right2bright on April 2, 2009 at 2:29 PM

Happening to me too and I posted in another thread, site is loading real slow.

Knucklehead on April 2, 2009 at 2:35 PM

But then again, we all knew this was coming.
Soon our military will be no more than a glorified police force, which I guess, in a way, it already is in some instances.
I agree with others-just make sure they’re dead.
If you need info, get it in the 5 minutes you have before you can blow off their heads.

Badger40 on April 2, 2009 at 2:36 PM

Proud Rino on April 2, 2009 at 2:28 PM

Giving them any kind of classification was being generous. By the Geneva Convention, we should have tortured them for intelligence information, and then shot them.

Count to 10 on April 2, 2009 at 2:36 PM

Interrogate prisoners on the battlefield if possible and then dispatch them immediately. No more taking prisoners alive. Problem solved.

Guardian on April 2, 2009 at 2:28 PM

Well, the troops really can’t do that. But they can capture them, interrogate them and then turn them loose — with a 5 second head start :-)

johnsteele on April 2, 2009 at 2:36 PM

Why do I have this nagging feeling, that if this train wreck continues, one day, it will be ruled ok to behead me for going out on my deck, without a veil and face covering on?

capejasmine on April 2, 2009 at 2:36 PM

Why do I have this nagging feeling, that if this train wreck continues, one day, it will be ruled ok to behead me for going out on my deck, without a veil and face covering on?

capejasmine on April 2, 2009 at 2:36 PM

Relax, that’s at least ten to fifteen years away.

myrenovations on April 2, 2009 at 2:38 PM

Why do I have this nagging feeling, that if this train wreck continues, one day, it will be ruled ok to behead me for going out on my deck, without a veil and face covering on?

capejasmine on April 2, 2009 at 2:36 PM

You slut!

rbj on April 2, 2009 at 2:38 PM

By the Geneva Convention, we should have tortured them for intelligence information, and then shot them.

Count to 10 on April 2, 2009 at 2:36 PM

Um, what?

Proud Rino on April 2, 2009 at 2:39 PM

Screw off Paulian…war is war.

Rogue on April 2, 2009 at 2:32 PM

Hmmm…. interesting… I’m a Paulian?

Hate to tell you, but I used to teach classes on the Geneva Convention, and how it applied to maritime Law, to US Navy Boarding Partys.

War is NOT War, not in a legal definition, until declared.

So, I would suggest you take your own uninformed self, and take your own advice.

Romeo13 on April 2, 2009 at 2:39 PM

Why do I have this nagging feeling, that if this train wreck continues, one day, it will be ruled ok to behead me for going out on my deck, without a veil and face covering on?

capejasmine on April 2, 2009 at 2:36 PM

You’re lucky most American men haven’t figured out what a good deal Islam is for men(not so much for women) or you would be wearing one already.

DFCtomm on April 2, 2009 at 2:40 PM

Has this thread been approved by our intertube overlords?

lorien1973 on April 2, 2009 at 2:16 PM

Great, Internet Security by Mac users.

- The Cat

MirCat on April 2, 2009 at 2:40 PM

To paraphrase Stalin, just how many troops does U.S. District Judge John Bates have at his disposal to actually implement his order?

GarandFan on April 2, 2009 at 2:41 PM

They’re being caught on the battlefield, not in a uniform of a specific nation, fightin for an ideology-not a nation.
The GI’s called creatures like that spies-and treated them accordingly.

annoyinglittletwerp on April 2, 2009 at 2:42 PM

Of course, executing people who have surrendered is against pretty much everything the United States stands for, and we can detain and imprison people, 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

We’ve been detaining them ‘indefinitely’ because Congress and the Courts have decided that military tribunals/courts are not sufficient and so have stepped in and decided that something else is needed – without actually saying what it should be but apparently it should mirror or actually be civil trials (which would result in most of these creeps being let free).

Also, I believe that it’s lawful to execute un-uniformed combatants.

And what conflict ever has a clearly defined finish line? When Hitler was dead and the Japanese surrendered we were finished waging war on them. When Afghans/Pakistanis stop blowing people up and supporting foreign terrorist groups then we’ll stop waging war on them.

gwelf on April 2, 2009 at 2:42 PM

By the Geneva Convention, we should have tortured them for intelligence information, and then shot them.

Count to 10 on April 2, 2009 at 2:36 PM
Um, what?

Proud Rino on April 2, 2009 at 2:39 PM

Technicly correct… these are non uniformed combatants, spys, or saboteurs… and under Geneva can be shot out of hand, IF the Host country laws allow it…

Romeo13 on April 2, 2009 at 2:42 PM

Oh? We aren’t at war with the Taliban? I seem to recall that EVEN THE UN thought it was A-Ok for us to go in there. We got lots of authorizations of force from Congress for Afghanistan. Not even the liberals complained about this one.

Except for “Proud Rino” and Romeo, who apparently think we shouldn’t do anything other than give people we capture on the battlefield tickets to the Four Seasons and then let them go inside Peoria.

You just shot up a US fire team? But then their buddies showed up behind your back, and you said “I surrender!”? No problem, Libs will make sure you get a ticket on Uncle Sams dime to the lap of luxury! Why, the best thing you can do is try to kill a US soldier nowadays and then surrender–it’s a guaranteed ticket to the good life!

Vanceone on April 2, 2009 at 2:43 PM

If they wear no uniforms, are they not considered spies or unlawful combatants and therefore NOT under the protection of the GC? If they are not US citizens then they are also not protected by the remains of the shredded Constitution or American law.

Sounds to me like the terrorists can be treated pretty much as we deem fit since they literally have no classification.

Bishop on April 2, 2009 at 2:43 PM

To paraphrase Stalin, just how many troops does U.S. District Judge John Bates have at his disposal to actually implement his order?

GarandFan on April 2, 2009 at 2:41 PM

Funny, Lincoln said much the same thing…

Romeo13 on April 2, 2009 at 2:44 PM

Romeo13 on April 2, 2009 at 2:42 PM

Oh, great. Could you point me to the provision of the Geneva Conventions where it tells you you can shoot people who have surrendered?

Proud Rino on April 2, 2009 at 2:49 PM

Funny, Lincoln said much the same thing…

Romeo13 on April 2, 2009 at 2:44 PM

Where/when did Lincoln say that? What was the exact quote? I’ve never heard that one and I am intrigued.

Proud Rino on April 2, 2009 at 2:51 PM

Which Supreme Court Justice are You?

I am Alito…

http://youhavetobethistalltogoonthisride.blogspot.com/2009/04/supreme-test.html

Dr Evil on April 2, 2009 at 2:51 PM

They won’t be happy until there are more of our soldiers in prison then there are of the enemy.

Just A Grunt on April 2, 2009 at 2:52 PM

Vanceone on April 2, 2009 at 2:43 PM

Sigh…. just to inform… US Navy (Ret).

Get off your high horse.

We have Laws, and those laws have consequence. We also have treaties which we must follow…

When those two interact, strange things can happen, especialy when we don’t bother to follow the highest law of the Land, the Constitution.

We are, under common laws of war, an Occupying Foreign invader now supporting a Puppet Government in Afaganistan.

As such, we can either treat these folks under our own laws… or give them back to Afganistan…

Problem is, that we did not declare war, and these are NOT Uniformed Combatants, so our OWN laws, precedents, and Constitution, have to figure out how to deal with them.

When the Supremes decided this last year, CONGRESS needed to step in and clarify it… but they did not.

Don’t blame me for the Legal consequences of incompetence and a lack of communication between the Three Branches of Government.

Romeo13 on April 2, 2009 at 2:52 PM

Oh, great. Could you point me to the provision of the Geneva Conventions where it tells you you can shoot people who have surrendered?

Proud Rino on April 2, 2009 at 2:49 PM

As a matter of fact I can. I believe it is section III where it talks about enemy combatants captured on the battlefield who are not wearing the uniform of a sovereign nation or wearing any distinguishing insignia can be summarily executed.

Just A Grunt on April 2, 2009 at 2:54 PM

Just A Grunt on April 2, 2009 at 2:54 PM

Section III refers to labor of prisoners of war. Try again.

Proud Rino on April 2, 2009 at 2:57 PM

Wherefore art thou with my answers, Romeo?

Proud Rino on April 2, 2009 at 3:00 PM

The net effect of this will be to push the military into killing its targets rather than capturing them, or to push renditions instead.

With the advent of assymetric warfare, this is how victory is acheived. In traditional warfare, you can destroy the enemy’s desire and ability to fight by attacking it’s military forces directly, and by destroying it’s manufacturing, transport, and other logistical targets (food, fuel, communications). When you’re fighting a non-state actor, there is nothing to “attack” except it’s soldiers. Taking a soldier as a POW implies he will be released at some point. Again, the non-state actor can just pick up where he left off and continue the fight as if nothing happened.

BobMbx on April 2, 2009 at 3:02 PM

Proud Rino on April 2, 2009 at 2:51 PM

http://www.lewrockwell.com/orig5/young-andrew7.html

Looking for the exact quote… but it was during the above situation…

Romeo13 on April 2, 2009 at 3:02 PM

This stinks, but if I were the judge I expect I would have found this ruling to be the only way to make sense out of the SCOTUS Gitmo habeas precedent. Scalia’s words ring true today: the “nation will live to regret what the court has done today;” and that Kennedy’s ruling “warps our Constitution.” Kennedy is going to get another shot at it now.

John E. on April 2, 2009 at 3:04 PM

I’m familiar with Ex Parte Merryman. Maybe you could find a more reputable source than “Lewrockwell.com” also, when you find the quote. Thanks.

Also, I’m still waiting on that part from the Geneva Conventions about murdering prisoners being OK.

I’m no expert on Lincoln nor the Geneva Conventions, I’m seriously asking. I can’t wait to see this stuff.

Proud Rino on April 2, 2009 at 3:07 PM

This is, simply put, a war by the judiciary on American conduct of war.

And it is exactly what I predicted would happen last year with the court decision that found that foreign terrorism suspects have a constitutional right to challenge their detentions in U.S. civilian courts.
Once you give someone constitutional rights in just one area, then you have no logical reason to deny them full constitutional rights.

The real purpose of all of this is blatantly clear: the Left is – in effect – trying to destroy the US military’s ability to wage war.

This is unbelievable.

rvastar on April 2, 2009 at 3:08 PM

The net effect of this will be to push the military into killing its targets rather than capturing them, or to push renditions instead.

I saw we just do the first part.

pseudonominus on April 2, 2009 at 3:09 PM

… and we can detain and imprison people, we just can’t detain them indefinitely without charging them with some sort of crime …

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

With what “crime” would you have charged German soldiers in WWII?

We do not detain combatants — not lawful combatants, anyway — because we’re punishing them for a crime. Lawful combatants have committed no crime. We detain them to keep them off the battlefield, where they can kill our troops. And for this reason, we detain them for the duration of the conflict, however long that might be.

Unlawful combatants are held for the same reason: to keep them off the battlefield. The only difference is that unlawful combatants have violated the rules of war, and have therefore not been entitled historically to certain considerations.

The petitioners in this case have been classified as “enemy combatants” (slip op at 4). Their application for a writ of habeas corpus can have no meaning unless our courts take it upon themselves to make military judgments. The courts would have to decided, in other words, whether the petitioners are in fact “combatants” — a military decision — and then potentially substitute the assessment of judges for the assessment of line officers. Otherwise, when reviewing applications for habeas, our courts will have to show such extreme deference to the military as to make the whole process a farce.

paul006 on April 2, 2009 at 3:10 PM

the Left is – in effect – trying to destroy the US military’s ability to wage war.

7 of the 9 SCOTUS justices were appointed by Republicans.

Proud Rino on April 2, 2009 at 3:10 PM

7 of the 9 SCOTUS justices were appointed by Republicans.

Proud Rino on April 2, 2009 at 3:10 PM

I didn’t realize this was a scotus decision.

lorien1973 on April 2, 2009 at 3:13 PM

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 few problems there, Cap’n:

(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).

(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in teh rest of your excerpt starting with “unless”).

(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.

I don’t at all disagree with your ultimate conclusion that this an unwarranted intrusion into the affairs of the Executive (not to mention just terrible policy), I don’t think there is actually a conflict with the GC, and the SCOTUS has unfortunately made such a ruling inevitable.

MichaelW on April 2, 2009 at 3:14 PM

paul006 on April 2, 2009 at 3:10 PM

Nice post. I understand the argument for why we have enemy combatants and I’m not necessarily disagreeing with it. I don’t know enough about it, honestly.

But I will say that SCOTUS has jurisdiction over military courts like any other court. And anyone who is imprisoned should be able to appeal their decision *somewhere* – if you’re appealing to an American source, eventually it’s going to work it’s way up to federal court and finally SCOTUS.

Proud Rino on April 2, 2009 at 3:14 PM

Hate to tell you, but I used to teach classes on the Geneva Convention, and how it applied to maritime Law, to US Navy Boarding Partys.

War is NOT War, not in a legal definition, until declared.

So, I would suggest you take your own uninformed self, and take your own advice.

Romeo13 on April 2, 2009 at 2:39 PM

Very well Professor Paulian (and yes, you are a Paulian, your quoting of his racist buddy L. Rockwell proves it)

How then exactly are we to treat a un-uniformed, irregular, no-set nationality armed guerrilla? You yourself said it’s a limbo. We CAN’T declare war on a non-conventional enemy in a “legal” sense.

No where in the Constitution does it require that a specific form be filled out in order to declare military action, it may not have the legalese term of “war” on it, but it’s a war.

Rogue on April 2, 2009 at 3:14 PM

paul006 on April 2, 2009 at 3:10 PM

He doesn’t get it. He’s never been subject to UCMJ and doesn’t understand that the military justice system is a completely different animal.

DFCtomm on April 2, 2009 at 3:15 PM

lorien1973 on April 2, 2009 at 3:13 PM

It’s not, the case the other guy was talking about was Boumediene.

Proud Rino on April 2, 2009 at 3:16 PM

Sounds to me like the terrorists can be treated pretty much as we deem fit since they literally have no classification.

Bishop on April 2, 2009 at 2:43 PM

This is the conundrum. The Conventions do not address “terrorists”; the articles were written with the idea of belligerents behaving with honor. Which, with a few notable exceptions, has been the case in conflicts the US has been involved in. Even the German Army (the Wermacht, not the SS) and Luftwaffe treated our prisoners with dignity and IAW the Conventions. The Japanese did not, nor did North Korea or North Vietnam.

I’m surprised no one has suggested appending the Conventions and updating to current world circumstances, which is the ultimate solution to this particular problem.

However, strict interpretation of the Constitution would conclude that the US Air Force is not subject to Constitutional requirements simply because it never mentions the Air Forces. Why? Because there weren’t any airplanes at the time.

The same logic is being applied to non-state belligerents, and it isn’t working.

I don’t believe the US Justice system has jurisdiction over prisoners at Guantanomo Bay. But I can’t say who does, either. They’re are literally in crack between several sets of rules.

BobMbx on April 2, 2009 at 3:17 PM

I’m surprised no one has suggested appending the Conventions and updating to current world circumstances, which is the ultimate solution to this particular problem.

Bad idea…in the current atmosphere, Israel and the United States would be declared War Crimes automatically ;)

Rogue on April 2, 2009 at 3:19 PM

I got an idea lets just stop taking them prisoner all together. Let the military take them out and to hell with trying to get information. Since obviously we have no hope of getting the information now anyway. As Mark Levin sings in his kumbaya song “Shot them dead my lord, shoot them dead.”

silentMajority on April 2, 2009 at 3:19 PM

Proud Rino on April 2, 2009 at 3:14 PM

No. And sorry, but it’s one of the stupidest things you could say. In essence, you think what an enemy combatant can’t achieve on the field of battle against your own US Military forces; you’ll give them a shot of achieving it in any court of law in the US? Guess we’re kind of wasting our time over there, huh?

hawkdriver on April 2, 2009 at 3:20 PM

hawkdriver on April 2, 2009 at 3:20 PM

I don’t understand the point you’re trying to make.

Still waiting, Romeo, on that Lincoln quote and that part from the Geneva Conventions where it says you can murder prisoners.

Proud Rino on April 2, 2009 at 3:24 PM

Maybe we should just send the Judges (this treasonous idiot in particular) and all the lawyers that want in on this pro trial Lawyers Assn. ruling to Afganistan and let them handle this problem there. Since they don’t like our military, they can do their whole stick outside the wire.

You know, if our system comes apart, at least those visiting retribution will have all the names of the abettors that caused it to come apart. Why are we criticising business men for trying to make a buck. Look at what the judges and lawyers will do for a buck.

Old Country Boy on April 2, 2009 at 3:28 PM

Proud Rino: Let’s walk through this. Assume no Geneva Convention. When you are at war, you can do whatever you want to your enemies, and they are trying to do the same to you. That’s the way war was fought since time immemorial. Your soldiers raped and looted if at all possible. Surrender? Bah–just execute all prisoners, aztec style.

Now, we don’t do that. The Geneva Conventions explicitly lay out who they apply to. In brief, soldiers. Militias, etc. are covered if they successfully show they are a militia group. Civilians are covered. The whole point is to show who is protected. Civilians are to be protected.

Now, you get terrorists and other scum liberals love. They LOOK like civilians–until they throw the grenade. Ergo, why should they be protected? They are endangering the civilian population they are blending with!

So they are not covered persons under the geneva conventions. Thus, they go back to the “old” method of war–summary execution of prisoners, if you want.

Vanceone on April 2, 2009 at 3:31 PM

I hate it when folks can’t do their own research. Here is the protion of the Geneva convention I was refering to in regards to prisoners who are not afforded protection under the Conventions. Nice how liberals like to turn this on and off to suit them.

Protocol I
Art 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Know anybody who fits that description?

Just A Grunt on April 2, 2009 at 3:32 PM

Still waiting, Romeo, on that Lincoln quote and that part from the Geneva Conventions where it says you can murder prisoners.

Proud Rino on April 2, 2009 at 3:24 PM

They can be tried and sentenced (including execution)in a military court; not summarily executed. The lack of a “uniform” when captured removes the rights as a POW under the conventions. In other words, you’re just a common criminal in a war zone. The conventions don’t apply.

A POW cannot be tried or sentenced for being an enemy combatant. However, if a POW commits a crime while in custody, he then is subject to trial and sentencing for that crime only (in a military court).

Satisfied?

BobMbx on April 2, 2009 at 3:34 PM

Satisfied?

BobMbx on April 2, 2009 at 3:34 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

Judge Bates needs to be charged with ordering a war crime.

LarryD on April 2, 2009 at 3:41 PM

And your point – while basically true (I think), still doesn’t back up the claim that you can shoot people who’ve surrendered. Now, yes, as you quite astutely pointed out, you can execute them after a trial. But that only reinforces my point.

Proud Rino on April 2, 2009 at 3:43 PM

Rogue on April 2, 2009 at 3:14 PM

Hmmmm… you must be new around here…

Because I flipped up an article from the Web, about a situation 150 years ago, that prooves I’m a Paulian?

Your amusing…. stupid, but amusing…

As to what I would have done? As the Supreme Courts have juridiction over lower courts, once this became a problem I would have gotten the Justice Department, a delegation from Congress, and the Supremes together to hammer out a way of doing this that met all the requirments…

But Congress, who had tried to address this twice, did not even attempt to fix it after the last decision by the Supremes, which is why we find ourselves in this problem.

Geneva leaves what happens to non uniformed combatants up to the Host country… Afganistan… or to the Occupying Power (us)…

Its OUR laws which are messing this up… because the Constitution and precedent allows Military Courts to try POWs… but not civilians… and as these are not uniformed combatans, we do not designate them as POWs… but tried to use the non term of Enemy Combatant… even with people taken inside the US.

Hate to say it, but this was ineveitable once the Supremes made the Gitmo decision… amusing that some of us on a blog saw it, when the Government didn’t seem to.

Romeo13 on April 2, 2009 at 3:43 PM

Good.

This means more dead terrorists and less U.S.-supplied Halal meals for these f*cking goat rapists.

omnipotent on April 2, 2009 at 3:43 PM

And anyone who is imprisoned should be able to appeal their decision *somewhere* – if you’re appealing to an American source, eventually it’s going to work it’s way up to federal court and finally SCOTUS.

Proud Rino on April 2, 2009 at 3:14 PM

If that were true, then civilian judges would, of necessity, have to second-guess the decisions of battlefield commanders. What is it, after all, that the combatant is appealing (if not a military judgment), and what, if any, are the rules of the evidence and the rules of appeal? Is the combatant entitled, for example, to confront his accuser, and if so, is the solider who accused him to be recalled from the theatre of operations and place on the witness stand? And since the combatant is not accused of violating any law, what statute will the judge refer to when determining whether the combatant’s detention is “lawful”?

In WWII, the U.S. interned roughly 425,000 Axis soldiers. These soldiers were guilty of no crime, and they were not held as punishment. They were held to get them off the battlefield. Our military could not have prosecuted that war while also carrying the logistical and administrative burden of treating these soldiers as if they were civilian criminals.

Perhaps our courts will regard Boumediene as they regard Bush v. Gore — a decision limited to the “present circumstances,” without presidential value, and issued in a moment of hurried masturbation. If not, our courts are risking great damage to their institutional integrity. In the event, god forbid, of another large war, our government will not adhere to the precedent now being foist upon it.

paul006 on April 2, 2009 at 3:44 PM

Still waiting, Romeo, on that Lincoln quote and that part from the Geneva Conventions where it says you can murder prisoners.

Proud Rino on April 2, 2009 at 3:24 PM

LOL… wait away…. some of us do have lives…

Romeo13 on April 2, 2009 at 3:45 PM

Of course these arguments about the Geneva Conventions are lost on people like Daniel Pearl or fighters in the French Resistance or Americans on the Bataan Death March, but to intellectuals they make good time wasters.
In other words, this is all BS when the knife is at your neck.

Just A Grunt on April 2, 2009 at 3:46 PM

I don’t understand the point you’re trying to make.

Proud Rino on April 2, 2009 at 3:24 PM

Then stick to threads you do understand.

hawkdriver on April 2, 2009 at 3:46 PM

Comment pages: 1 2