"Brace yourself for a wave of deeply whacked. " I don't know about that, but......

Makes me wonder how any terrorist or 'freedom fighter' is to be treated? Geneva says they can be intered as long as hostilities exist AND a militribunal takes charge long before a civilian court.
B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
Art 3
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
taken from http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68?OpenDocument

I dunno, Al. Are they prisoners of war that are entitled to Geneva protections or ain't they?
Looks like the Supremes really made a hash out of things. Looks like to me they pulled an 'I know obscenity when I see it' type thing. Does not look like they made all relevant law mesh in any trully rational manner. This ruling seems like it could make things very interesting down the road.
no doubt that it squishes the Bush admin position dead though. No doubt.

Well, clearly the Taliban soldiers were "persons belonging, or having belonged, to the armed forces of the occupied country." I understand this is the greatest part of the Gitmo guests. Especially based on the Article 5 quote. So there is not too much odd about the Supreme Court ruling. This is something Rummy never allowed clearly did and has had his hand slapped properly. Alleged Al Queda may be different but I think you need to explain what you mean by a hash as as far as I can tell it is your executuve branch's hash that has been called out.

But were they wearing uniforms clearly distinguishing themselves from civilians?

Note also that the decision doesn't say the US can't make the same decision that was overturned (in my superficial so far follow), just that the executive branch can't do it by itself.

Of course the Taliban were wearing Taliban approved uniforms. You couldn't walk half a block under that regime in unapproved gear without getting a bullet in the head or have you forgotten why they were deposed. Just because it was not in the nature of a Ugandan dictator or a Peruvian marching band doesn't matter.

And, yes, that is a point. The executive does not have autonomy separate from the legislature and the judiciary. They cannot create a scheme that defeats the Constitution, however, even collectively. But placating that document is so easy to do with a few simple step. But Rummy was to convinced of his own wisdom that he even tripped up on that test. It all merely points to the administration's intellectual weakness as much as anything.

Whatever happened to the "that's what separates us from the bad guys" approach to law, anyway? Did it just go *poof* in a cloud of postmodern hypocricy while I was in the loo, or what? The current US administration has been acting contrary to their country's founding principles whenever it suits them. Unfortunately I don't think it's intellectual weakness more than it is a) a certainty that what they're doing is sanctioned by a higher principle and b) that it isn't necessary to pass any "tests" because i) the people won't catch them and if they do ii) they won't care anyway. The Supreme Court gave the administration a pass six years ago and these assumptions would have continued to hold had Bush's personal approval rating not sunk to Nixonian lows. They didn't see New Orleans coming, that's all. But here it is and they smell blood. Such is my theory, anyway.

I consider a) as well as b) i) and ii) to be forms of intellectual weakness.

Er, well, yes, true, but they're not dumb like somebody who believes in astrology, they're dumb in a different way. Y'know?

I'm not sure if you're kidding or not, Al. It's been a long day for me and I'm a little punchy.
"Of course the Taliban were wearing Taliban approved uniforms. You couldn't walk half a block under that regime in unapproved gear without getting a bullet in the head or have you forgotten why they were deposed." WTF?
I don't know about you, pilgrim, but a djebala exactly like the one every Tom, Dick, and Harry is wearing is not a uniform that distinguishes one from the populace, as is required by Geneva to ensure that the non-combatant populace is protected. As I read Geneva, and I could be wrong, that offense alone disqualifies you from manadatory Geneva protections(meaning we may or may not extend Geneva protections to you. We aren't beholden to anything anymore.). But, you could be kidding or I could be utterly wrong in my reading; and I don't want to be an ass by accident(when I'm an ass it's typically on purpose).

"I think you need to explain what you mean by a hash as as far as I can tell it is your executuve branch's hash that has been called out." Okitay, I'll try.

Either these men are POWs or they are not. If they are then they should be subject to the entire process set forth in Geneva, including the power of a gov't to try captured fighters in a military tribunal(which is specifically set forth in Geneva). Not by a standard Courts Martial. Not a civilian court. A military tribunal which is what the Bush team was doing. That's straight out of the 1949 iteration of Geneva.
What it seems to me, and again, I could be wrong, is that SCOTUS has said that these men are POWs BUT that they must be tried in civilian court. They decided that Gonzalez and Ashcroft(not Rummy, why are you hitting Rummy over this? Don't want to punch fellow lawyers in the face or something?) dragged their feet in an attempt to deny these men their rights thru bureacratic procedure and pushed to see it moved along; but, in doing so screwed up by blurring the lines between legal combatant and those not mandated to be covered by Geneva. So lead me out of the Scwartzwald on this, Al? What am I not getting?

What you're missing ry, is that the SCOTUS said Bush doesn't have the power to set up the tribunals but congress does. Again, I'll probably have a more sophisticated opinion later today. It also looks like it's OK to hold the whatevertheyares until the end of hostilities, so they may be getting a extended beach vacation. Other than that, it looks like you're depressingly right.

WCG seems to be under the impression that the GCs were written for the benefit of college students looking to complain they live in a facsist state (and so forth) rather than for the benefit of warring parties. Your theory of American jurisprudence is, um, interesting but historically speaking any American administration up until a few decades ago, Republican or Democrat, would have (rightly) executed most of Gitmo detainees within days of their capture.

More interesting reading here and here, for those who are into it.

And other one here, with a very readable background of the case.

<blockquote>
<p>
Here the court turns to the important work of Colonel William Winthrop, whose treatise on the laws of war describes four pre-conditions for the exercise of jurisdiction by a military commission to try war crimes: 1) it can only assume jurisdiction for offenses committed in the field of command of the convening commander; 2) the offenses must have been committed during the conduct of the war; 3) it may only try those individuals of the enemy (and home) army who have been guilty of illegitimate warfare in discord with the laws of war; and 4) it can only try offenses related to the laws of war or the regulations in which it is fought under.

<p>
The Court characterizes these conditions as the best summary of the common law of military commissions acting in its law of war violation capacity.

<p>
It then concludes that since the bulk of the offenses charged against Hamdan occurred prior to the AUMF [authorized use of military force -- dpj] and, further, since the crime of conspiracy has never been considered an offense related to the laws of war, the military commission as composed to try Hamdan is not in accordance with the law. ...

<p>
Finally, the court adds, Hamdan's military commission was established by a general with no relation to the field of battle and long after the events complained of occurred. The Court thus concludes:

<blockquote>
Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime, but it is not an offense that "by the law of war may be tried by military commissio[n]." 10 U. S. C. 821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court's precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject him to punishment.
</blockquote>
</blockquote>

Note that the court isn't dealing with broad constitutional issues here (read more of this article about the constitutional backing for military trials) but just plain-old application of law.

David is more level headed than I am and speaks to the law. I think, though, that the broadness of a constitutional issue is a dangerous characterization. Military holding camps are acceptable as I understand it if properly done. But camps set up without proper involvement of the legislative process is a core example of one branch (the executive) usurping the role of another (the legislative). Then the executive setting up a phoney judicial process which ignores natural law and international conventions is the usurpation of the role of the judiciary as it pretended to place humans with inalienable rights beyond the reach of the judiciary. So the executive has overstepped its jurisdiction in relation to the legislative branch, the judicial branch and the rights of humans. There is not too much left to tread on. If you are going to love your Constitution - which every citizen in a democracy should place before all - you should reject those who reject its primacy.<p>On ry's comment about the clothes, it poses an interesting cultural question. Must a soldier appear to a western soldier as a western soldier would appear? If there were an Amish army, would we find fault because it is dressed in black with beards? Similarly an orthodox Jewish one. Sure these do not exist but the Taliban did and had its own code of dress. Like discovering on 9/12 that there were under a hundred Arabic speakers in the CIA, the US discovered that it was unable to distinguish a Taliban army. That does not make the soldier a terrorist. Think of the rag tag army of children in some of the very sad African civil wars we have seen in recent years. I acnnot imagine you are suggesting they would not be due the Geneva Convention rights even though they are only dressed in a pair of shorts and a gun. As I said above, the case of a non-state combatant is different.

You're going a little wild in that first paragraph -- the courts found that many things the XB did would have been legal if done by the LB. This sort of bounds settings happens all the times in all realms of law, but in particular, is setting a firm boundary on something that may have been unclear under what powers the XB gets during wartime (which are quite a few). The stuff the court struck down for everyone seems quite reasonable -- i.e. because military tribunals are a pragmatic non-consitutional creation, what they can put to trial is quite limited. The US was attempting to try prisoners for acts they did before the US showed up and the courts said that this isn't the venue for determining whether that is true or not. I.e. wrong, hardly a
"trampling" of human rights or the rights of the judiciary.

"Distinctive" is the word used the GCs for identifying soliders and combatants at quite clearly accepts "equivalents" to western terms for uniform, name, serial #, etc.. Differentiating combatants from non-combatants and establishment of a chain of command are pretty key concepts in the GCs.

<i>You're going a little wild in that first paragraph -- the courts found that many things the XB did would have been legal if done by the LB. </i>

You have just abandoned the entire concept of division of powers, which the case is really about and your interpretation of "distinctive" firmly holds to the preconception your brought to the analysis yet does not engage with it. Essentially you are on the Peruvian marching band side of the question.

I'll have to talk to my brother, who has done a few supreme court cases here. In particular, when a constitutional decision is made in your face, is it proper to spike your law books and do a victory dance and say "in your face, mofo, yeah, who's the man now" to the other side?

Because if they do, that would be really cool. But in application to the topic at hand, just because a case doesn't go your way doesn't (necessarily) mean your intent was malicious: it just (may) mean the boundary has now been decided, where it was previously unclear.

I should point out that what the Supreme Court has actually said was that the President can not make the decision <I>by himself</I> to deny people GC rights. This is not really a triumph for Gitmo, it's a triumph against Bush's claims that the executive has, through the signing of the Sept.11th authorization right after the attacks, the right to claim war powers and act independently. The court has set one (1) limit on that. This is a blow against the administration's anti-Constitutionalism and only incidentally about Gitmo.

(for more information, read Glenn Greenwald on this one.)

Exactly. However, I'll take pains to point out there is a lawful way for Bush to achieve much the same result -- i.e. go back to congress and ask for a law to do what he wants. And I'll also note though I admit I was following this issue only superficially until yesterday that the anti-xxx (fill in "xxx" with whatever you please, Bush, GWOT, Hegemonialistism, ...) crowd weren't making a big deal about the US division of powers in the various branches but rather that the entire idea of tribunals were unconstituional and what have you. The courts explicitly said that this isn't true, that there is a way to go about this legally that will end up with much the same result Bush was looking for.

That doesn't, of course, negate my earlier point which was that the administration has been acting against humane principles for years and constitutionalism be damned, there's a right and a wrong thing to do and the spirit of the convention is the treatment of anybody participating in extraterritorial violence. Just because it wasn't constituted to handle religious or guerilla war doesn't mean it shouldn't be applied anyway by a state that can (easily) do so.

You say that, "...Republican or Democrat, would have (rightly) executed most of Gitmo detainees within days of their capture" and I agree they would have, but I disagree that it's right. The Geneva Convention was drafted at a time when war was a gentleman's agreement and suddenly some people weren't behaving like gentlemen, with the recognition that war is the thing where guys go out and kill each other but under <I>these conditions only</I>. When the other guy isn't acting according to those conditions I don't think the answer is to throw out the book, but rather to write another chapter.

David, I think that we are agreeing on that point except I see that as huge. But I do think, correct me if I am wrong, in requiring natural law and international law to be obeyed even if congress approves is a second aspect that is different. Any trials have to actually be trials. So while you can have a detertion camp you can't have exectutive branch detention camps <i>and</i> any camp has to respect process. <p>I know division of powers and procedural rules are not sexy but for a legal geek it is huge. These are the actual safeguardds of democracy as far as I am concerned. These may not be huge to non-lawyers as the substance does not appear to have really shifted but for me it means doing "X" in the right way as opposed to the wrong way.

"On ry's comment about the clothes, it poses an interesting cultural question. Must a soldier appear to a western soldier as a western soldier would appear?"
The quick answer to that is no. They just have to wear some distinctive badge that's somewhat easily seen(can't have a tatoo on your chest, but it doesn't have to be something that makes camoflaguing yourself impossible). They could all wear coonskin caps and that would satisfy Geneva(ask John. I've talked to others and that's the opinion I've been given). One of the things I heard that the insurgents were doing was giving tweeners-teenagers matching Nike tracksuits. So the t-ts would be recognized as having some device that set them apart from the general populace, but the other insurgents would not.
It has nothing to do with wearing black. The black pajamas of the Viet Minh or Viet Cong could be seen as a uniform. Not everyone in Vietnam wore black clothing and that was enough to set them apart.
A black arm band has been deemed sufficient so long as it is a distinctive device.

Al I warn you to seriously look at Geneva on the neccessity of distinctive devices and carrying of arms openly. Then look at what it says about the employment of children under tha age of 15(you can't have them in your army.). I believe that's in the second of the 1970's additionals.

Shorts and a gun is not distinctive enough. If they all, for example, wore red bandanas about their forheads(while the general populace did not) then they would be, as long as they were over 15, legal(assuming other things like chain of command and what not were satisfied as well). Just something that marks them as different than the general populace. Look at Iraq where everyone carries a weapon. Weaponry alone does not a soldier make.

The rules are there to protect the soldier and the general populace by making sure he doesn't fall prey to baseless charges of murder and the populace by not confusing what's a legal target. If he doesn't wear something distinctive he endangers everyone around him. So yes, your ragtag child army isn't filled with people protected by GC because they violate GC in many different aspects. Has nothing to do with 'Western this' or 'Western that'. They could paint some Arabic script on their shirts that I couldn't read, but if the did that and carried their arms openly they would qualify(so long as they were of proper age).

I think it comes down to that as I see Bush wasn't setting up anything wrt the Trubunals. He was following GC protocol(albiet as slow as molasses this past January---justice delayed is justice denied?). So why hue and cry about him 'setting up' something that was demanded be done by the GC? I don't get that Al. So where have I made a mistake here?

You answered it yourself, ry. Four and a half years in carcerated without representation and access to the charge against you. I think you can get that. No wonder some are killing themselves.

<blockquote>
<p>
But I do think, correct me if I am wrong, in requiring natural law and international law to be obeyed even if congress approves is a second aspect that is different. Any trials have to actually be trials. So while you can have a detertion camp you can't have exectutive branch detention camps and any camp has to respect process.

<p>
I know division of powers and procedural rules are not sexy but for a legal geek it is huge. These are the actual safeguardds of democracy as far as I am concerned.
</blockquote>

This is a rather large gulf between our positions, and I'm afraid that I disagree on your points for both natural and international law. Once war is engaged we understand that we are not in a state of legalities, that state actions may and almost certainly will cause civilians and innocents to die and suffer indiginity. This is not the worst choice, but simply the least worst choice. While war is engaged, I expect that the major effort should be bringing the war to a successful close; if excessive legality endangers this, then it is not due.

As per WCG comments, one of the major points of the GC is to induce the other side to conform to the agreements -- "that is, I will do this if you also do this". If an organization/state will not meet their GC _obligations_, then they are not due its _rights_.

Organizations that allow war crimes (such as hiding amongst and targetting civilians) to be standard operating procedure should have their soliders and leaders hunted down like rabid dogs. This is not to say no process is due to them, but it should be little beyond establishing identity, the crime and presence at the scene. Don't forget that we're already in a situation where we are accepting that civilians will die.

I categorically reject the progressive position that Americans -- and minority, usually dark skinnned people -- must pay any price, bear any burden for the frivolous legalities during wartime.

As that neither provides greater security for us or speaks to and of the ethics in our democractic system it is just bad tactic and bad strategy.

Ah, a discussion for another day perhaps.

Peace, baby. Go get dressed up in red and white.

"Four and a half years in carcerated without representation and access to the charge against you. I think you can get that." But that's why I said it's made a mess of things. This ruling was un-necessary. They wanted to chastize for foot dragging or somehow act to hurry it along. That's great, but using the bully pulpit of final arbiters of what the US Con says to make it happen seems like using a full stick of dynamite when trying to carve Rodin's 'The Thinker'. It jacks stuff all up and makes everything unrecognizable.

but, rather than be a jerk and use an argument I can't in good faith use anymore I point to a US Army JAG officer on this. He says I'm very wrong. http://www.mudvillegazette.com/milblogs/2006/07/01/#005884

"As that neither provides greater security for us or speaks to and of the ethics in our democractic system it is just bad tactic and bad strategy."
I think there's people better qualified than I to illuminate why you're wrong Al, and I too find myself wanting to say 'Pax' and be done with this discussion as an adversary like Mr. Janes. So I do so. Pax, Mr. McLeod; and do be wary of the Kurgan.

Do they live near the Klingon? Have a happy Canada Day, ry. Do something Canadian, wouldja.

The Kurgan? Please tell me you've watched the tremendoulsy cheesy flick 'Highlander'? That's why I called you McLeod for the longest time.

I think I did something Canadian today. Took The Wife out. She ate French toast and pancakes with tons of Maple Syrup. Then we went for a drive to look at pretty trees along the Wabash river(okay, so the Wabash ain't the McKenzie, but it's the closest I could get.). Enjoyed natural beauty(the Wide and trees) and ate national product(none of that stuff from Vermont, too pricey).

We McLeods do not take to Hollywood or anyone else taking our otherworldly aspect lightly. Seeing as we also set up Canada as far as I can tell, though, your attempts to commune with a forest have won you big points in the <i>Secret McLeod Rewards Program</i>.