Random political venting/rambling thread:

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I don't consider it protected status, T2Bruno, just categories that determine how they are treated. It's like having two sets of rules - one for soldiers (combatants) and one for civilians (noncombatants or not proven to be combatants). That certainly doesn't mean civilians can't be tried or punished, but simply that such trial and punishment are to be done in an orderly manner, if they are necessary, and without any atrocities. Just as an accused serial rapist/murderer has the right to a free trial, so does an accused terrorist or a member of a partisan band*.

It's good to remember the "accused" part too, btw. Until there is a decent court that reviews all the evidence, there is reasonable doubt whether everyone at Guantanamo is actually a terrorist, and just what that means in his (is there a woman among the detainees?) case.

*: it's not like there were no "combatants" who did not wear uniforms or have a clear command structure until September 11th. Chances are, the framers of the Conventions had a good idea that such irregulars existed and given what the Nazi and the Japanese did in their persecution of partisans, I doubt the people behind the Convention would just omit them. After all, the outrage from these acts was still fresh in 1949, when the 3rd Convention was revised and the 4th adopted.

 

Aldeth, you disagree and yet you appear to support my point with some of your comments. Initially in this thread there was wide agreement that an individual HAD to be EITHER a civilian OR a soldier. And given they HAD to be in one of these categories, they would be covered under one of the Geneva Conventions. I showed examples where that was not true, that some are excluded. Montresor made the point that resistance fighters are not protected by the Geneva Convention -- this is true in some cases, the partisans must openly wear an emblem designating them as a member of the resistance organization and they must openly bear arms. The French Resistance would have been in violation of this and not protected under the Geneva Convention.

TS, the Geneva Conventions are ALL about protection of civilians and combatants from the atrocities that come with war. They define who is protected and who is not. The framework is not complete, it's not all black and white and there is still grey area. Those who do not follow the rules may be simply criminals -- but dealing with criminals under martial law is much different than dealing with them in non-combat environment. The topic of partisans was the center of many heated debates and the requirements I've mentioned (at least to the best of my understanding) was the compromise.

The whole issue of guerrilla warfare is moot here, this is not about militants fighting the US Army. This is about the enemy NOT following the requirements of the Geneva Convention. The members of the Taliban and Al-Qaeda did not have the required emblems denoting themselves as a fighting force, and they often hid their weapons from view when moving as a unit (violating the requirement to openly bear arms).

The US is arguing that terrorists should be excluded from protection, just as the French Resistance would have been. I'm not saying the Bush administration is right or wrong. They have made a reasonable interpretation and acted on it. Whether or not it was the RIGHT interpretation must be determined. I certainly see holes in the US argument -- in particular, those who were detained as the US Forces moved through Afganistan. Civilians ARE allowed to pick up arms and fight an advancing armed force (without the emblems or requirement to openly bear arms). Those civilians MUST be treated as prisoners of war, but those who continued the fight after occupation may not be protected by such status.

My point has been it is NOT up to the US Supreme Court to determine whether the interpretation is right or wrong. In that, I agree with Justice Scalia. Such a determination should be the responsibility of the International Court.

 

Actually I had conceded the larger point you were making in my previous post. If your point was that some people would not be covered by the GC, then I agree - I simply remain unconvinced that the current enemy combatants being held in Gitmo are appropriate examples of this.

OK, if that was your primary point, then we never had an arguement to begin with! To be honest, since the last time you brought up the US SC it was little more than a footnote to what you were saying, that I had forgot that you even mentioned it.

 

Sorry Aldeth, I can get sidetracked a little too easily (one of my wife's big complaints). Losing track of where I am in the forest because I'm too busy looking at the trees....

 

As I said, there never was a presumable third class for people other than civilians and POW after Geneva I-IV and the additional protocols. Now what I have read about quite a couple of times is that those evil people don't deserve Geneva's benefits because of all the bad things they do. Now that sounds plausible only if you're uninformed.

An excerpt of the famous verdict of the International Criminal Tribunal for the Former Yugoslavia in the Celebici judgement explains it very well:

When one hears Bill O'Reilly & Cie one would think that Geneva I-IV puts terrorists in a tourist resort. Unsurprisingly that is

Now how do these privileges look in their application? Civilians and POW alike are protected by being granted a few privileges - at the very least a trial determining their status - and corresponding procedural rights. That does not absolve them from responsibility for their actions.

POW can still be tried for crimes and war crimes. Art 82 of Geneva III reads:

and Art 85 Geneva III reads:

That would mean when they are POW they'd be tried after iirc American Uniform Code of Military Justice, just like a US soldier. Which is considering the penalties and crimes listed in there suitable. US soldiers can be prosecuted for war crimes, so can their POW who are held to the same standard.

Civilians can still be tried for crimes and to some extent even for war crimes. Art. 64 of Geneva IV:

And Art. 68 Of Geneva IV:

Now people may say that Saddam's law was so rotten hat it is unusable. That's nonsense. He still punished ordinary murder, and harshly. Also, the Allies kept German law in power, cleansed it of it's distinct Nazi components and applied the rest. Cleansing Iraqi law of it's excesses and applying the rest would be perfectly suitable. The law also would be familiar to the locals. Terrorists would then be prosecuted, tried and sentenced like the ordinary criminals they are.

This thing is about legal status, and for starters it is irrelevant for that whether one subjectively feels that someone one deserves the status or not. That isn't terrorist coddling, because terrorists don't really benefit from these rules:

Consider the case of a plain clothes wearing terrorist triggering a chlorine gas boosted bomb hidden in an ambulance car on a Baghdad market: He'd be arrested by the US military, gets his initial POW status, and accordingly his status trial in which he would be considered a civilian. To minimise the time undeserved privileges are received it is up to the occupying power to organise the process in a way that such people forfeit their privileges as POW as soon as possible.
Under his status as a civilian he is fully responsible for his crimes, and can be prosecuted and punished accordingly. Just to briefly sketch his crimes: He doesn't identify himself as a combatant, means he doesn't fight according to the customs of law and that he does not have POW status. The boosting of a bomb with chlorine is a war crime of use of chemical weapons. A car bomb on a public square is an 'indiscriminate attack' and the use of the ambulance probably constitutes 'perfidity', two more indications for war crimes. It is also probably multiple murders committed and multiple instances of injuries inflicted on the survivors, the triggering of a bomb itself, property damage and so forth - cumulatively allowing for a splendid case for a very harsh punishment reflecting the severity of the crime according to an established and universally accepted legal process.

Whether POW or civilian, nobody can dodge punishment for his crimes. With all that in mind there was and there is no need whatsoever to introduce a third class to address alleged and largely imaginary peculiarities of the 'GWOT'. There was no 'treatment gap' in international law that had to be closed by the Bush folks introducing the 'enemy combatant' or 'unlawful combatant'. Rather, the intent was to pry open a gap to try to justify a treatment outside of universally accepted international norms by introducing this third class.

In my understanding it was mainly to avoid criminal prosecution for already ongoing extralegal and illegal activities especially for the administration architects in the US. The federal US criminal code in my understanding refers to violations of the conventions as a trigger for criminal offences under US law, that means it 'incorporates' those treaties (Geneva I-IV, Convention Against Torture). By the president 'finding' that the conventions didn't apply they could reasonably as ever (hint: being calmly outrageous and speaking with a soft voice doesn't make an argument reasonable) claim that because the conventions are not applicable, so isn't the US criminal code referring to them. And the US right complains about sleazy trial lawyers? The above line of legal argument by far beats any frivolous lawsuit I ever saw in terms of sheer impertinence. It is all about obstructing possible future prosecution. As an added insurance and further obstacle for prosecution they off-shored the place of the actions outside US territory. That in turn implies to me that they were perfectly aware that what they did was not legal, and that they acted with intent and indifference in respect to that.

The 'international law of war is too good for them' tune is (imo intentionally) misleading and appealing to gut feeling - it is a sales line, not an argument. There is no legal basis for these arguments. There also is no factual basis for the claim that the evil nature of the terrorists justifies a different approach because they would get away too good. They don't. And again, no matter what the administration sais, there is no reasonable case for this and if they say otherwise, they're bs-ing their populace (not that that would be a first ...)

In my understanding the JAG corps, largely sharing my rather conservative reading of Geneva I-IV and of the additional protocols, wanted to set up the organisation for such a process by their law books and according to the traditional and internationally consented on understanding of the matter. They were ordered by the Whitehouse not to do it because they wanted it done in a different way for their own reasons.
It appears to be a general trend that in Bush's Whitehouse the law has always been considered subordinate to mainly domestic political considerations and necessities.

 

Ragusa, you make some very good points, many of which I agree with. Your use of the Celebici judgement is an excellent start and one I would hope would be used in this case. Ultimately though, for many of the arguments you present, I still feel this issue must be settled in the International Court of Law. Your initial argument that the US Supreme Court was negligent by letting this happen and that Scalia was a Bush lacky (I'm obviously paraphrasing here) is what I disagree with.

I don't think the Bush administration is right. I see there arguments and believe they are reasonable (albeit wrong) and so this situation must be resolved at a level higher than the US government. I think the real interesting questions are not is the Bush administration right or wrong, but instead: Why has no other country brought this issue to the International court? Why is no one stopping this precedent the US is setting?

 

T2,
both parties must accept the jurisdiction of the court in the case as a reflection of the national sovereignty. This the US will not do. If they initially agree they will withdraw the juristdiction if they're probably going to be sentenced - states can do that - and in the case of Nicaragua the US did just that. And even then the US got something almost as bad as a verdict, a statement by the judges on the legal issue that found them in breach of international law and that became a landmark legal document, a school case on national sovereignty. The Bush administration - some of whose players served then - will not risk that happening again and thus will not agree to jurisdiction.

Now let's imagine the US agree to jurisdiction, and get sentenced. Well, Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. If the judgement is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred after the Nicaragua case, when Nicaragua brought the issue of the US non-compliance with the Court's decision before the Security Council.

The memorable point is, Nicaragua was right and played by the rules, even went and got a court ruling, eventually appealed to the security council and got screwed by the US anyway. Think of the fox guarding the hen house. The US are in a position of impunity. They can (and I think they did and still do) break international law and get away. And the current administration likes it that way, and I am certain the next administration will like it that way, too.

And as for the jurisdiction of the International Criminal Court, famously the US are not a signatory nation, not at least because of the efforts by US conservatives, with the notable contribution of one John Bolton.

Also, no country is willing to provoke the unjustified if self righteous wrath of the Bush administration that will come up in full bully mode as soon as the issue is raised. As a result this legally important and practically highly relevant issue is not being raised because weighed against other issues the fate of some peasants who had the misfortune to have wound up in America's dragnet is of subordinate importance. These people have no lobby, and Americans are afraid of them.

And in the very implausible case that it would make it into international court and that the US would accept the ruling it is pretty clear what John Bolton would make out of the probably inevitable verdict condemning the US: "International law is a weapon of the weak to bind down the hegemon! It has been instrumentalised to undermine US policy and fire cheap political shots at the US! One of the judges is from Venezuela! Venezuela! A conspiracy! Chavez! I gonna get you! Commie pig! Off with his heaaaaaargh .....!!!!!" *incomprehensible noises emerge from his frothing mouth as he lies on the ground in convulsions* What a sight

As for why Scalia deserves harsh criticism anyway, more in the next days.

 

Mostly unrelated tangent: can we please stop pretending that The War on Terror actually means anything, or that terrorism represents a serious risk for Americans?

 

Terror attacks are a risk nearly every country faces, tbh. That doesn't mean a nation's entire policy has to revolve around them. It's like structuring your entire foreign policy with respect to India. As you imply, it appears that much of what goes on in the US that supposedly involves terrorism is actually for purely domestic political purposes.

As far as the War on Terror goes, it's a bombastic phrase with very unclear meaning. Terror is a tactic that everyone can employ and which can manifest in a variety of ways. IMO every action that deliberately plans to create fear for military, political, or social purpose can be defined as an act of terrorism. Sure, I find it as reprehensible and want to see it employed as little as possible, but I find it hard to imagine it being eradicated - especially with military measures.

 

Of course you two are right.

What pisses me off about Scalia is the way he reads the Eight Amendment - allegedly to protect it from distortion. Now what does this great constructionist make out it? Scalia says that the Constitution forbids cruel and unusual punishment, but if torture is not meant as punishment, it may not be unconstitutional. Now let that one sink in.
The argument can be further elaborated like that: Punishment is what happens after the object of justice has incriminated him or herself under torture. Torture is in the .... fact finding phase (as in 'fishing expedition'). What supreme logic! Just what the founders must have had in mind! Ah yes ... We can't know what they thought, we only know what they wrote, even if we need a dictionary!

But certainly Justice Scalia knows that torture is unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441), but hey, this is about the constitution, not federal law!

Then, let's return to the constitution - why doesn't this legal giant elaborate on this question in light of the Fifth Amendment protecting witnesses from being forced to incriminate themselves? It would be most fruitful. Now I assume that the Fifth is sort of equal and somehow related with the Eighth? Like, that the Amendments form a 'system'? Or a 'system of systems'?
Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. Originating in England, these protections from self-incrimination was brought to the American shores by Puritans, and were later incorporated into the United States Constitution through its Bill of Rights. But you know, historical context isn't written in the constitution! The word of the constitution is what counts!

So Scalia interprets the Eighth narrowly, and in his argument just skips the Fifth - as if torture could only be seen as 'cruel and unusual punishment'. But he just happens to overlook that it also constitutes coerced self-incrimination - well, I do not think he just forgot that one. He's trying to pull a fast one here. Scalia's a pretty smart guy. My conclusion is that he left it out intentionally because it stood in the way of a policy he supports. I'm just guessing, but as a member of the Federalist Society he pursues maximalist views of Federal powers?

 

I was using the distinction between 'threat' and 'risk' that Schneier makes.

Something along the lines that threat is 'how bad event x would be' while risk is 'how likely it is that event x will occur, weighed against the severity of the threat'.

Terrorism is a low risk.

 

AMaster

 

In-effing-deed. In 2001, more Americans died at the malevolent hands of The Great Satan, Malnutrition, than at the hands of the Lesser Satan, Al-Qaeda. So where's our Global War on Malnutrition?

Oh. Right. That's socialism, and socialism is bad, but dropping a few trillion as a response to losing three thousand lives is the epitome of small government and fiscal responsibility.

On a related note, can we stop pretending that the Republican Party stands for small government and fiscal responsibility? We've all the evidence anyone could possibly require that, well, the Republican Party does not stand for those things.

 

HAHA love it!


Whats with a majority of Americans hating socialism so much anyways? I've never really understood the problem...

(Power to the People WHOO)

 

I think it's part of the Cold War legacy, myself - while many countries were threaneted by the USSR before 1989, the ideological and political struggle was most vicious between the two superpowers. When the US had been in a state of constant hostility with the country that was supposed to be the incarnation of socialism, it's no surprise that the word itself received negative connotation.

Also, socialism never caught on as much in the US as it did in Europe both before and after WWI. I think it had something to do with the availability of resources. The American West allowed those who were discontent with the qualify of life in the big cities a way to acquire land, and thus other resources, in minimal competition. Most European counties did not have this luxury (although some of them were able to do something similar via colonization), so redistribution of existing resources became a much more important issue. Due to concentration in the hands of nobility and/or rich landowners, land was almost unavailable and beyond the abilities of most people to buy; on the other hand, starting industrial ventures was next to impossible without a starting capital . You can imagine why a collectivist ideology would find better reception on this side of the Atlantic.

 

It's less that it never caught on and more that the government & industry did a bang-up job of crushing the movement in the early twentieth century.

 

T2,
another thing about Scalia, and people like Yoo, Bradbury, Gonzales, Bybee, Haynes to name a few notorious memo writers: You may have noticed that I have shown a particular stubbornness in refusing to accept that the legal 'interpretations' brought up by the Bush crowd are 'reasonable'. I did so for a reason, and I think I ought to explain why:

I do not merely think their theses are 'unreasonable'. We are not talking about two sensible persons having reasonable opinions but failing to agree. For instance on the subject of combatant status or torture their opinions are quite simply 'unvertretbar', in the sense that they are flat wrong and indefensible.

In my view the legal opinions on torture like those penned by Yoo, Bradbury, Gonzales, Bybee, Haynes (and ultimately if to a lesser extent as voiced by Scalia) constitute evidence of participation in a criminal conspiracy to introduce a regime of torture as defined in American and international law.

While the law may provide defences for the interrogators who act in misplaced reliance on the Justice Department’s opinions, it provides no shield for those who in bad faith formulate the policies that foment torture. With bad faith I mean that they do know their theses are flat wrong and indefensible, but as heavyweight sophists they just don't care. We're talking about a gang of criminals here operating from behind desks, as 'Schreibtischtäter'. They have no business serving in the Justice Department or in any other public office and should now be the target of a criminal investigation, together with the other policy-level figures who drove the introduction and propagation of this torture regime. But under Bush/ Mukasey it's just not going to happen, just as it didn't happen under Bush/ Gonzales.

 

The Cold War legacy is right on:

The Russian people never believed all the propaganda their government heaped on them; but the Americans have never stopped believing their own propaganda....