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Detention of Enemy Combatants:

U.S. detentions of enemy combatants, some people say, are troublesome because they are potentially of indefinite duration. America held enemy prisoners during World War II and earlier wars, but at least there the wars were over in several years; the war on terror could go on indefinitely. Isn't that unfair to the detainees? Try them or let them go, people say. Note that this argument is independent of the conditions of confinement, or of the argument that some of the detainees may have been seized by mistake; people say this even about prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents.

This argument, I think, is a mistake. Let me briefly explain why.

The purpose of detaining enemy combatants is prevention. An enemy soldier wants to kill our or our allies' soldiers (and often civilians). We normally stop that by killing him. But when he surrenders, we prefer not to kill him: Killing the enemy generally isn't our goal, but just the means to the end of protecting ourselves and our allies — and if we can serve that end by locking a captured enemy soldier up instead of killing him, we do that (and are required to do that by the laws of war).

The thing that makes this logic work, however, is our ability to keep the man locked up. When we release him, he can go right back to killing our soldiers. What's more, it seems quite likely that he will: If he tried to fight us once, why wouldn't he do that again? We release ordinary criminals after some time chiefly because we hope that the term in prison has deterred them from repeating their crimes. But someone who obviously isn't deterred by the risk of being killed (the high risk, when you're a small force fighting the U.S. military) isn't going to be deterred by the risk of repeat incarceration.

Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians. Option 3 strikes me as deeply unsound, and not required either by justice or by international law.

But why not try them, then, some people ask? Well, as to enemy soldiers who were fighting in uniform as part of a disciplined force, there's nothing to try them for: Fighting as a soldier who complies with the laws of war is not a crime. (If one weren't fighting in a war, one would surely be committing the crime of attempted murder, but being a soldier who fights according to the laws of war is actually a good defense against that charge, subject to various caveats.) They aren't being locked up to punish them for a crime; they are being locked up to prevent their engaging in lawful but deadly attacks on us.

Enemy terrorists, spies, saboteurs, and others who were fighting out of uniform, attacking civilians, or otherwise violating the law of wars could be tried for those violations, and imprisoned (perhaps for life) or executed. But we have no obligation to do so: Given that we can hold lawful enemy combatants until the end of the war (which indeed may take a long time), we can at least do the same for unlawful enemy combatants, which are in no better moral or legal position than the lawful combatants are.

Now there may sometimes be pragmatic reasons to release prisoners even before the end of the war. Prisoner exchanges are a classic example. Likewise, prisoners who are very sick or disabled might be released as a humanitarian measure — but the measure is humanitarian precisely because it seems unlikely to endanger our or our allies' soldiers or civilians. (There's little that's humanitarian in helping an enemy fighter in a way that jeopardizes our fighters or noncombatants.) Some prisoners may be turned over for trial by other countries for violation of those countries' laws, if we think such a turnover is politically valuable, and if we think the prisoners will indeed end up being locked up for long enough by those countries. One can imagine other reasons as well.

But as a matter of law and of morality, it's perfectly proper to keep an enemy soldier detained (again, I set aside the separate questions related to conditions of detention, and related to confirming that the person is indeed an enemy soldier) until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

salvage (mail):

people say this even about prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents.


Who says this?
7.7.2005 3:25pm
Paul Gowder (mail):
That assumes that we know whether such a person is an enemy combatant or not. Holding them just on suspicion implicates the danger to our soldiers less seriously.

This also highlights exactly the same error that I was trying to point out in the treason comments: we can't just say that a war is anything we want it to be. The "war on terror" is not a war, in the sense that we've understood the term "war" for centuries.

Your assertion that unlawful enemy combatants can be held forever just like lawful enemy combatants could be held ignores the point that there is no war in the sense that it's two nations fighting to be ended, sooner or later, by a treaty. "War on terror" is a complete misnomer! "Use of troops to enforce the laws against activity that is engaged in by terrorists" would be a more accurate phrase.

I thus submit to you that a "war" against illegal fighters who could be tried does not justify not trying them. If you justify failing to try these enemy combatants on the grounds that (a) they might pose a danger to our soldiers and (b) there's nothing to try them for, and then (b) goes away because there is something to try them for, your justification fails.
7.7.2005 3:31pm
RWS:
To an extent, the post defines away the problem. One of the problems with indefinite detention is that, while a primary purpose is clearly detainment, a side effect of it is also a serious deprivation to the person. Even if there is zero intent to punish, the deprivation nonetheless exists. Now, if that person is clearly dangerous and intends to go out and kill, as many of them have vowed to do, detainment makes a boatload of sense.

However, the problems of a false positive--an innocent person wrongly picked up in a dragnet, or one who might have hung around al Qaeda but was not really too dangerous--are that these people suffer the deprivation of indefinite detention. "Leaving this question aside for the moement" sort of defines away the problem. This matter is inextricably linked to the concerns that many have with indefinite detention.
7.7.2005 3:33pm
Eugene Kontorovich (mail) (www):
Eugene summarizes the major reason for detention very well. But there are some other policies involved.

Other reasons that nations have historically detained enemy combatants are to 1) trade them for our POWs held by the other side; 2) pressure the other side to end the conflict so they can get their boys back.
Obviously, neither rationale applies to the current conflict: i) the terrorists take prisoners only for the purpose of executing them in a barbaric fashion, and ii) they don't give a whit about their compatriots held at Quantanomo. They won't sue for peace to get their boys back; they don't mind a war of indefinite duration.

In other words, some of the traditional rationales have been made less relevant to the present conflict precisely because of the barbarity and inhumanity of the enemy. It would be perverse to adopt a more lenient policy to capture enemy combatants on the grounds that their own savagery has underined some (but not all) traditional purposes of there detention.

As to indefinite war, all wars of the past are only of a definitive length in retrospect. Lets say WWII fell into a stalemate, and dragged on inconclusively for 20 years: would we, 10 yrs. into it, be giving Hitler back the millions of Wehrmacht soldiers we held?
7.7.2005 3:35pm
LG (mail):
I think Professor Volokh's logic is quite sound for those enemy combatants (lawful or "un"lawful) that are indeed definitively considered such combatants. The problem, however, it that many of those detained argue that they are detained for no reason, and are innocent of any anti-American involvement. This is a new problem -- a captured uniformed German soldier in WWII could not make that claim. I imagine that most people's problem with the detentions is the fact that the determination of whether the detainees may truly be innocent and no danger to our troops and civilians is put off indefinitely. I do not believe Professor Volokh addresses this concern, although I can see a plausible argument that during critical times that determination may be expected to take far longer than during other times.
7.7.2005 3:39pm
Paul Gowder (mail):
I don't think my previous comment was clear. You argue that illegal combatants are in no better position, morally or legally, than legal combatants. Fine, I say. But are they in a worse position? Because we're treating them worse. The very nature of this never-ending war, which by definition is conducted against illegal combatants, implies that those captured will be held much longer than captives in all previous wars ever. You have yet to explain why this is just.

"In past ages, a war, almost by definition, was something that sooner or later came to an end, usually in unmistakable victory or defeat... The war is waged by each ruling group against its own subjects, and the object of the war is not to make or prevent conquests of territory, but to keep the structure of society intact. The very word 'war', therefore, has become misleading. It would probably be accurate to say that by becoming continuous war has ceased to exist." George Orwell, 1984.
7.7.2005 3:40pm
Jimbeaux (mail):

The very nature of this never-ending war, which by definition is conducted against illegal combatants,

I don't think I understand this statement. Simply because a group of persons fighting for an entity refuses to comply with the rules of war (uniform, command structure, hiding among civilians, etc), doesn't mean that a war will necessarily be "never-ending." And there's no reason to think this war will be. Further, Al-Qaeda declared war in 1998 -- those who signed up and have been captured know that and have chosen to participate anyway. I wouldn't shed too many tears on someone who gets detained for the rest of his life. If that were really a problem, then there should be pressure from the rank and file in al-Qaeda demanding that the leadership find a way to settle. Otherwise, they run the risk of ending up enjoying tropical breezes, reading the Koran, and enjoying three meals a day forever.
7.7.2005 3:53pm
Al Maviva (mail):
1. AQ detainees captured fighting on the battlefield probably do not meet the definition of enemy prisoners of war (EPW). They do not answer to a nation, wear uniforms, or follow a rank structure. Nobody has officially declared war here either. Per the Third and Fourth Geneva Conventions, the treatment of such individuals must not be inhumane, but that is about all that is required once their status is established – a function traditionally accomplished by a military officer or panel on or near the battlefield.

2. Much of the civil libertarian left and plain old left insists that the AQ detainees are EPW, a status which necessarily implicates the Geneva Conventions. Assuming, arguendo, that they are EPW, they *cannot* be tried for fighting against the U.S. It would be a violation of the Conventions and a war crime.

3. Minority leader Pelosi insisted last week that US and international law require the trials of the detainees at Gitmo, those held in Iraq and elsewhere.

4. Senator Leahy insisted on June 15th that “rendition” – returning a detainee to a country likely to torture him (pretty much any country of origin for a terrorist or jihadi involved in the WOT) was a patent violation of international and U.S. law.

Frankly, I’m at a loss for what to do with them. Were I still on active duty, if I found myself about to take prisoners I would probably not bother. It’s dangerous to try to capture people on the battlefield, and I wouldn’t risk my life to capture some joker (who was just shooting at me or trying to blow me up) who couldn’t be tried, repatriated, or interrogated. It’s not worth betting your life on a 50/50 situation, where your life and your buddies’ lives are the ante, and there’s no payout if you win the bet and take the guy alive, without dying yourself.

My cynical side says, “let’s give them an “R” visa and release them in Senator Leahy’s neighborhood.” If only.
7.7.2005 3:54pm
Drew (mail):

But we have no obligation to do so: Given that we can hold lawful enemy combatants until the end of the war (which indeed may take a long time), we can at least do the same for unlawful enemy combatants, which are in no better moral or legal position than the lawful combatants are.


I think this is wrong. Lawful combatants presumably have a state that will look out for their interests, that state may be destroyed by the war, but at that point the war is presumably over and they can be realesed. I think this is an important part of the equation that you are overlooking. Without such a state to advocate for them they must be able to advocate for themselves in some meainingful way (such as in a court of law). Denying them any such avenue is , I believe, morally wrong, if not criminal. Additionally the ability to extend this reasoning to include other "enemy combatants" who can be held indefinitely without charge should give us pause.

I would postulate the general principle that if a person, detained by the executive power, may be held indefinitely (or for any extended period of time) based solely upon the perogative of that power then that persons detainment is fundementally immoral and should be unlawful.
7.7.2005 3:59pm
deany:
Professor your statements as to the three options are flawed. I don't understand why they cannot be tried--it seems they are either foreign soldiers subject to the prisoner of war rules, which we should abide by, or they are "illegal combatanats" and thus criminals subject to being tried.

Bottom line, there are myriad technical or legalistic justifications for holding these people indefinitely--and I'm not defending them, I am sure they are scum--the question is: how does this benefit us from a wholistic or political sense?

Whatever safety we gain by locking up these few hundred men, who we cannot truely say are real threats to us as the facts of their detainment are not subject to hearing, I would argue is equaled or less than the safety we lose by presenting a negative political and social position on the world stage.

I think this is a rote argument, yet I will trot it out: to me, it is not an "american" thing to take people, combatants or not, and stick them on a desert island that is conveniently controlled by the government but is not territory of the US for years without a hearing on their alleged crimes or malfeasance -- this is what the turkish or algerians do to their prisoners and it backs up false claims of our abuses and political prisoners, etc...

If these people were trying to hurt us or were creating terror, we should have nothing to lose by subjecting them to our fine system of justice, which embodies the same principles that we are waging costly wars around the globe to promote.
7.7.2005 4:07pm
Tony Dismukes (mail) (www):
Hmmm, I have a few thoughts on this, which may not come out a totally organized fashion.

My first qualm is that it is inaccurate to say the war on terror could go on indefinitely. Better to say it will go on indefinitely. A "war on terror" is like a "war on murder" or a "war on rape" or a "war on lethal weapons". Barring the development of a technology to forcibly re-wire the brains of the entire human race, there's no way that you can ever call any of those "wars" over. Therefore, you are talking about lifetime imprisonment for the captives in question. This should be acknowledged up front as part of the debate. Such an acknowledgment may or may not change your mind about the proper procedures in such a case.

As far as your example of "prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents", I think you are conflating different scenarios.

Members of al-Qaeda are not soldiers. They are criminals, and should be tried as such. Remember that part of why we have trials is that without them, we really don't know that the accused is actually guilty of the crime in question. Serial killers, child rapists, and the like all get trials for that very reason, and so should accused terrorists.

Members of the Taliban are in a different situation. The Taliban was a despicable regime, but they never attacked the United States. We invaded them. We defeated them. We put a new government in power. Any given Taliban prisoner might quite likely have been a foot soldier attempting to defend against a foreigh invader (or possibly just surrendering to the foreign invader before getting blown up - after all, the ones who were captured probably weren't the ones who "weren't deterred by the risk of being killed") The Taliban members should repatriated to Afghanistan. If they committed atrocities against other Afghans during their time in the Taliban, then the current Afghan government can deal with that. Either way, they're likely not going to be a huge risk to the U.S.. (My only uncertainty in this is that we've let remnants of the Taliban escape and survive. There might need to be an assessment of individual prisoners to decide if they are ideologically committed to the Taliban to the extent where they might seek out those remnants and join forces with them. If so, those prisoners might need to be held until the Taliban remnants are totally defeated.)

The Iraqi insurgents should probably be held until the Iraqi insurgency is defeated (which could be a long while), or until the U.S. declares victory and bails out Vietnam-style (in which case the insurgents should be handed over to the Iraqi government as their problem.)

In any case, we need hearings/trial/tribunals/whatever to determine if a given captive really is al-Qaeda/Taliban/Insurgency or just some poor schmoe who got swept up for being in the wrong place at the wrong time. There's no way to justify holding innocent people for a life sentence with no hearing to determine if they are guilty of anything or a danger to anyone.
7.7.2005 4:18pm
Grant Gould (mail):
As has been noted above -- I think this post quite misses the point. Most people concerned with these detentions are not concerned about how actual enemy combatants, uniformed or otherwise, are treated.

Rather, the concern is a simple question of boundaries. The policy that currently exists allows any person anywhere at any time to be swept up by the military and imprisoned forever. No amount of parsing of laws of "combatants" and "war" and "deterrance" can ever justify giving any government such power.

This is not a slippery-slope argument. Your argument does not need to be stretched or extrapolated; it says outright that the military may imprison forever (or indeed, by your argument, kill) anyone at any time. At most you demand a recitation of the mantra, "combatant" -- you yourself say that you mean this to apply as much to actual al Qaeda prisoners as to those swept up by mistake. Unless you can explain the just limits of this power, you are not going to convince anyone that it is a power exercised of right. Rather, it will continue to look like an instrument of tyrrany that merely hasn't been abused yet (at least, as far as we know).

Perhaps a different line of argument is in order: Explain to a reasonable person how he may go about his life so as to not be subject to arbitrary, perpetual military imprisonment. Then explain to us the limits that that answer implies on that power of imprisonment.
7.7.2005 4:22pm
Greedy Clerk (mail):
Talk about having your cake and eating it too. . . . These are legal arguments regarding the imprisonment on Gitmo I have now heard from Prof. Volokh on this blog.

1. The US does not need to comply with the Geneva Convention because those detained at Gitmo were not "soldiers" in uniform as defined by the Geneva Convention.

2. There is nothing wrong with holding those at Gitmo indefinitely because we can't try them. They have done nothing wrong -- they are soldiers complying with the laws of war.

Ahh, isn't this a little bit inconsistent. Either, the people are Gitmo are unlawful combatants -- in which case they should be tried for this in some tribunal to determine if they are in fact who the government says they are. Or the people at Gitmo are legitimate soldiers, in which case we may be able to hold them indefinitely, BUT we have to comply with the Geneva Convention and we have to give them all that stuff that the GC says we have to give them.

Can't have it both ways Professor. . . . .
7.7.2005 4:24pm
Mr. X (www):
The fundamental flaw in your argument appears to be in conflating the 'war on terror' with other wars. There are major differences that make this premise untenable:

1) The 'war on terror' has no victory conditions. A country cannot defeat a tactic (terrorism), especially one that has been around for so long. A country could defeat a particular group of terrorists, but they would need to be defined first. Al-Qaeda is a convenient foil, but there is nothing that indicates that beating Al-Qaeda would end the 'war on terror.'

2) There are no lawful combatants. You've compared American treatment of unlawful combatants with the treatment of unlawful combatants. In the case of the 'war on terror,' I am not aware of any lawful combatants on the other side. While this may be the choice of the other side, it is disingenuous to speak about how well lawful combatants are treated in comparison to unlawful combatants when the former set is empty.

The trap into which you seem to have fallen is extending the analogy of a 'war' beyond its breaking point. To illustrate, it may be helpful to reread your original post substituting 'war on drugs' for 'war on terror.' How much sense would it make to incarcerate drug dealers indefinitely without trial as 'unlawful combatants'?

Yours truly,
Mr. X

...senses a flaw...
7.7.2005 4:25pm
Drew (mail):
In your post you implicitly assume that the hierarchy of punishment is "terrorist > prisoner of war > criminal justice". You use the later inequality to justify the former, in that if prisoners of war ar treated more harshly than criminals, then terrorists should be treated at least as harshly as prisoners of war. I believe this is a fundamental flaw in your argument. In fact the correct inequality should be criminal > prisoner of war.

If prisoners of war were treated as common criminals the least punishment they could expect would be life in prison (and more likely death), for fomenting armed rebilion, terrorism, mass murder (or the intent to commit mass murder) etc. The only reason they are not subjected to the criminal justice system is because the two waring states have a mutual understanding of how to treat prisoners.

I would argue that it would be sound policy to allow any POW to elect to remove his state shield and face justice as if he had commited his acts of war as an individual rather then as an arm of a state. He would almost invariably be worse off but could so choose to get out of unlimited detention.

A terrorist organization lacks such an understanding with the US government and as such its agents are to be treated as individual actors, responsible for the crimes they commit. This treats them more seriously then a POW so I see no conflict in doing so. Indefinite detention would be even harsher still, and a violation of human rights. That a POW could be subject to the same is irrelevant as in a fundamental sense that is thier choice made for them by the express consent of their government for whom they chose to act.
7.7.2005 4:25pm
Al Maviva (mail):
cannot truely say are real threats to us as the facts of their detainment are not subject to hearing,

They have had two administrative hearings by the time they land at Gitmo. Several who have been released, have returned to the battlefield where they have been killed or recaptured by our troops.

As for submitting them to Title III courts, do you really believe that: (1) our soldiers are equipped to observe the bill of rights with respect to non-citizens captured in battle; (2) that battle resembles in any way a policing context, where the cops have time to get warrants, kick down doors, give rights advisements before questioning; (3) that we can or should carry around a passel of defense attorneys to represent captured AQ (don't forget, 72 hours to get them a first appearance and an attorney, or they have to be released); (4) that any court is going to accept evidence seized and confessions heard as the result of a grenade attack, mortaring followed by infantry rush and a buttstroke to the groin; and (5) that the lives of our prosecution witnesses will be a tiny bit too evanescent to be relied upon to provide testimony. I can scarcely imagine a more chaotic process than to try to take a large number of captured AQ fighters from the battlefield, to full scale courts in the S.D. NY or E.D. VA.
7.7.2005 4:26pm
Daniel-San (mail):
Another historical means of ending the danger from combatants has been to release them after they take an oath that the will not combat their captors or the captors' allies. This has been tried with some of the Guantanamo prisoners; a few of those have been recaptured on the battle field in Iraq. I suspect that it was never an ideal method of "incapacitating" prisoners.
7.7.2005 4:26pm
Greg (mail):
I think that part of the reason for releasing lawful enemy combatants after the conflict is the fact that there is a high probability of the combatant being a conscript. Membership in al-Qaeda seems voluntary, which could be a aggravating factor in determining the length of their detention.
7.7.2005 4:38pm
Anderson (mail) (www):
Dismukes: The Taliban members should repatriated to Afghanistan. If they committed atrocities against other Afghans during their time in the Taliban, then the current Afghan government can deal with that. Either way, they're likely not going to be a huge risk to the U.S.. (My only uncertainty in this is that we've let remnants of the Taliban escape and survive. There might need to be an assessment of individual prisoners to decide if they are ideologically committed to the Taliban to the extent where they might seek out those remnants and join forces with them. If so, those prisoners might need to be held until the Taliban remnants are totally defeated.)

I think that handing all Taliban prisoners (against whom we have no "extra" charges) over to the Afghan gov't would be a good idea. Let the Afghans figure out which Taliban they're comfortable releasing &which not; they have as much or more of a stake in this than we do.

Otherwise, I concur with Dismukes &Gowder. This is not a "war." I think we should follow Geneva for human rights' sake, to exemplify our moral standing, not necessarily because these folks qualify. Qaeda captives should be treated as criminals and tried in the U.S., with the same rights and safeguards we would use for a Mafia boss.

Unlike certain high officers of our gov't, I'm quite proud of the American justice system, and I think it can handle whatever challenges the prosecution of Qaeda members may pose to it. People who don't believe in America or its justice system should be looking for new countries in which to live, not erecting concentration camps on Guantanamo Bay.
7.7.2005 4:40pm
von (mail) (www):
I suppose that, once you assume that the detained are committed enemy combatants who will return to the "battlefield" to kill again if they are released, logic compels that we keep them locked up until there is no longer a "battlefield." Of course, this begs the relevant question, which is whether the detained are committed enemy combatants who will return to the battlefiled to kill again if they are released.

With respect, this ain't your strongest work.
7.7.2005 4:41pm
David Hecht (mail):
Drew: the fact that a combatant may become a stateless person does not change his status. I am certainly unaware of either the Germans or the Russians having released the Poles they captured: in fact the Russians notoriously took their Polish captives out to Katyn Forest and gave them each a bullet in the back of the neck. This, BTW, *was* a war crime, and the Germans made the most of it: they even invited the IRC to come out and verify the fact. The Russians, of course, claimed for years it was really the Germans that did it.
7.7.2005 4:41pm
Splunge (mail):
So, just to stake out a quite different position than most of your commenters...

First, let us remember that every single prisoner at Gitmo has had a hearing before a military tribunal. They have had a trial, and yes it has been legally determined that they were on the battlefield and trying to kill Americans.

Of course, the position of the left here is that that "trial" was a kangaroo court sham and its findings of fact worthless, and that the only conceivably proper thing to do is revisit the entire question of the facts de novo in civilian court, where each Islamowhack would have his or her own platoon of taxpayer-funded attorneys to argue the fascinating questions of international habeas corpus and Geneva whatnot all the way up to the Supreme Court.

On contemplation of that potential circus I am almost tempted to see their position as little more than the narcissistic wish for a massive transfer of taxpayer wealth to, and enduring refocus of the public limelight on, the national cadre of defense trial attorneys, each of whom tends (naturally) to think he or she is on the front line of our defense against a descent into barbarism. Would that be questioning their patriotism or their sanity? But I digress.

Second, I personally believe in nations, and national constitutions, and explicit social contracts. These things have real weight and importance, because outside of them there is no such animal as "law," there are only personal and national interests. "Law" is merely the codified deference we give to others within our own social contract when we suspect them of acting contrary to our interests, id est because of this deference we do not simply kill the neighbor who allows his sheep to graze on our land, we take him to court.

But this is hardly "natural." It is rather a deliberate decision, which we and our neighbors consciously enter into, when we draft a constitution, form a government, and agree to accept the constraints of that "law" on our actions. Law is no more a law of nature, so to speak, than is communicating by speaking English.

People who have not accepted our social contract, indeed, who have explicitly rejected it, are not our legal equals. They are not citizens. They have no legal rights whatsoever. They can (and probably should) simply be killed out of hand whenever they pose or even seem to pose any kind of nuisance whatsoever, and it would be up to they to establish (in order to avoid such a fate) that they do not pose any threat.

That we do not proceed this way is merely an act possibly of grace or charity but more probably an egoistical conflation of The American Way with the natural condition of the Universe, which we may or may not regret in the long run.

Hence while I find Professor Volokh's intricate justification of our actions at Guantanamo Bay interesting, I also find them unnecessary. With people who have forsworn our social contract we simply do what serves our interests, and that is that. The rest is so much verbal onanism.
7.7.2005 5:31pm
Paul Gowder (mail):
Splunge: Wow. I do believe that's an argument that could justify global imperialism, slavery, and genocide. "Kill all the damn dirty foreigners if they look at us funny."
7.7.2005 5:43pm
David M. Nieporent (www):
1. Anderson, I may like the American justice system also, but that doesn't mean I think it's equipped to handle the large-scale prosection of enemies captured on the battlefield. Try to find a fair jury. How about witnesses? Do we call American troops home from combat to testify? How do the accused provide evidence on their behalf? And let's not forget that these people were obviously never Mirandized.

2. This is not like a war on "rape." Whatever it is called, the WoT involves actual military operations, battlefields, etc. Nor is this a war on a "tactic," any more than the Cold War was a war against an economic philosophy. It's a war on Islamic fundamentalists. Bush is just too savvy to say that, so that it doesn't sound like a war on Islam.

3. RWS and von are correct that not everyone who has been captured may be guilty. But I think that misses the point, which is that the standards in war are different than the standards in criminal situations. Not everyone who has been killed on the other side is an enemy soldier, either -- but we recognize that as a sad but inevitable side effect of war. Any people in Gitmo who may be innocent are victims of the war -- but surely less than those civilian casualties.

The world isn't a perfect place; our choice is not between the current situation or treating each person exactly as his individual circumstances warrant. If it were, of course we should choose the latter.

Moreover, the concern about keeping people locked up forever -- because this war theoretically won't end -- doesn't merely apply to non-EPWs, does it? So are people suggesting that _everyone_ at Gitmo should be let out, because the war won't end?
7.7.2005 5:53pm
A.S.:
Greedy Clerk loses me. If I understand correctly, Prof. Volokh is arguing that it is lawful to hold ALL enemy combatants - whether they are lawful or unlawful combatants -- until the conflict is over. There is no need to try any of them (note, also, that those who are lawful combatants are entitled to certain extra protections under the Third Geneva Convention). With respect to those who are unlawful combatants, we can ALSO try them for the war crimes, which trial (and possible punishment upon a guilty verdict) would be in ADDITION TO their being held until the conflict ends.

It's not any either/or situation. It is one or both.

Also, as to the issue of this being a "neverending" war, it seems to me that this is entirely in the terrorists' hands: if they want to end the war, they can surrender. If they don't surrender, too bad for their fighters, who are not lawfully entitled to be freed.
7.7.2005 5:58pm
deany:

So, just to stake out a quite different position than most of your commenters...

First, let us remember that every single prisoner at Gitmo has had a hearing before a military tribunal. They have had a trial, and yes it has been legally determined that they were on the battlefield and trying to kill Americans.



What is the authority for this statement? Are the tribunals subject to review? What law governs these hearings? If you can't answer these questions, you cannot pretend that a true legal determination of their status or guilt has occurred.


Of course, the position of the left here is that that "trial" was a kangaroo court sham and its findings of fact worthless, and that the only conceivably proper thing to do is revisit the entire question of the facts de novo in civilian court, where each Islamowhack would have his or her own platoon of taxpayer-funded attorneys to argue the fascinating questions of international habeas corpus and Geneva whatnot all the way up to the Supreme Court.


Why have any criminal trials then? Just gives the crazy criminals our tax dollars to argue inane legal theories in court. We should be more like China in this regard I suppose, for the sake of efficiency.


On contemplation of that potential circus I am almost tempted to see their position as little more than the narcissistic wish for a massive transfer of taxpayer wealth to, and enduring refocus of the public limelight on, the national cadre of defense trial attorneys, each of whom tends (naturally) to think he or she is on the front line of our defense against a descent into barbarism. Would that be questioning their patriotism or their sanity? But I digress.


Massive transfer of wealth? We're talking about a few hundred inmates--Chicago probably processes more than that on a Monday morning.


Second, I personally believe in nations, and national constitutions, and explicit social contracts. These things have real weight and importance, because outside of them there is no such animal as "law," there are only personal and national interests. "Law" is merely the codified deference we give to others within our own social contract when we suspect them of acting contrary to our interests, id est because of this deference we do not simply kill the neighbor who allows his sheep to graze on our land, we take him to court.


Last time I checked the protections of the Constitution were inalienable and self-evident, not subject to the benevolence of an unwritten "social contract"


But this is hardly "natural." It is rather a deliberate decision, which we and our neighbors consciously enter into, when we draft a constitution, form a government, and agree to accept the constraints of that "law" on our actions. Law is no more a law of nature, so to speak, than is communicating by speaking English.


True--law is a social construct, but one at the core of our society.


People who have not accepted our social contract, indeed, who have explicitly rejected it, are not our legal equals. They are not citizens. They have no legal rights whatsoever. They can (and probably should) simply be killed out of hand whenever they pose or even seem to pose any kind of nuisance whatsoever, and it would be up to they to establish (in order to avoid such a fate) that they do not pose any threat.


How can they establish their innocence without a fair hearing? Are we to blindly trust the military that they will make sure no innocent person is detained--checks and balances?

Sure we don't owe foreigners protections, but what about when we bring them 5000 miles from their homeland--to territory 90 miles from our own, on land our army controls--does this not require us to be cautious and fairminded in our actions?



That we do not proceed this way is merely an act possibly of grace or charity but more probably an egoistical conflation of The American Way with the natural condition of the Universe, which we may or may not regret in the long run.



Something leads me to believe we will regret more our knee-jerk reactions that you appear to condone (ie internment, etc.) than a desire to uphold the very principles we have our soldiers dying for abroad


Hence while I find Professor Volokh's intricate justification of our actions at Guantanamo Bay interesting, I also find them unnecessary. With people who have forsworn our social contract we simply do what serves our interests, and that is that. The rest is so much verbal onanism.


Sure. Why have elections or written laws either. Let's just do what we want to those we don't like.
7.7.2005 6:00pm
Greedy Clerk (mail):
let us remember that every single prisoner at Gitmo has had a hearing before a military tribunal. They have had a trial, and yes it has been legally determined that they were on the battlefield and trying to kill Americans

Huh?!?! Is your exclusive source of news the Corner and PowerLine? I don't think that every single prisoner has had a trial. Give me a break. This is the problem with arguing over some of these issues, some people seem to be living in an alternate reality.

7.7.2005 6:14pm
Seamus (mail):
I think the closest analogy in our history that I can think of is the Indian wars of the 19th century. Sometimes the army was fighting something that pretty much resembled war as generally understood: conflict against organized bands under the command of the leadership of the opposing tribes. Other times, though, it was dealing with freebooters who just decided that it was time someone stopped the pesky white intruders, and with that end in mind went after some settlers, miners, or ranchers. The latter were more like the kind of people we're dealing with in Iraq and Afghanistan. Does anyone know what we generally did with captured Indians of either kind if they fell into the hands of the army? (I know that sometimes we tried them in military courts for war crimes, as in the case of the Sioux in Minnesota who were found guilty and executed for various rapes and murders in 1862. I also know that we kept Geronimo and Chief Joseph as POWs until the end of their lives, even though the Indian wars had ended years before (and even though we probably could have put Geronimo on trial for crimes against civilians). Does anyone know if we had a systematic policy?)
7.7.2005 6:17pm
Greedy Clerk (mail):
AS -- you need to re-read the post. Professor Volokh states in response to the common-sense argument that we should either release these people or try them that we cannot try them because they are legitimate soldiers who have committed no crime. But earlier he stated that the same people are not entitled to the protections of being a POW under the Geneva Convention because they are not legitimate soldiers.



It is an either/or. Either we need to hold them and not try them because we have no legitimate charge to bring against them. Or we can try them because they are unlawful combatants. It seems pretty obvious that Professor Volokh is simply taking a position on these people's status in a manner that will fit the result he wants. He does not want the Geneva Convention to apply so for those purposes he will call them unlawful combatants. He does not want to follow the obvious proposition that we should either try them or let them go so he states that there is nothing to try them for because they are legal soldiers. What about this are you not following?

7.7.2005 6:29pm
grahamc (mail):
Sure we don't owe foreigners protections

This is close to the nub of one of the arguments involved here. The Declaration of Independence says " We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

...but if foreigners are denied these rights then they are not part of the set of "all men" and the truths are obviously not self-evident.
7.7.2005 6:48pm
SimonP (mail) (www):
Can someone help me understand what an unlawful combatant is?

I can think of at least two definitions:

1. An unlawful combatant is someone who is not part of a regular army or organized militia, i.e., the army or militia of a nation-state, who takes action intending to harm US soldiers.

2. An unlawful combatant is someone who is not a part of a regular army or organized militia, but who is acting as a part of a group or organization, who takes action intending to harm US soldiers.

Does anyone know which one is right?


It would seem to me that indefinitely detaining the first type of combatant poses "Uncle Bob" problems, by which I mean this: my "Uncle Bob", faced with foreign troops entering his vicinity, would not hestitate to take whatever action he could to harm them, impede their progress, whatever. Does that mean he should be locked up until the end of the "war against terror," or until combat ceases around his home, or what?
7.7.2005 6:52pm
Houston Lawyer:
Under international law, aren't we entitled to execute unlawful combatants just for being unlawful combatants. If we hold hearings (i.e. a military court martial) for these guys and establish that they are truly unlawful combatants shouldn't we then begin executing them posthaste. Sure, we may want to interrogate them first, to see if they know anything useful. But after that, I see no reason to hold on to them forever, and letting them go is not an option. In prior wars, these guys would have been shot on the battlefield.
7.7.2005 6:56pm
Anonymous Reader:
Al Maviva and Splunge have it exactly right. The detainees held at Guantanamo have had to flow through SEVERAL layers of scrutiny before being determined to warrant the enormous cost of transporting them and housing them at Guantanamo.

In fact, all detainees must pass through certain layers of review before they are incarcerated. Please allow me to roughly explain the process through the use of an example.

A company of Marines captures "a combatant" on the battlefield. This could be the guy who was given up by an informant or who was actually caught burying an IED or firing on coalition troops. So the combatant is reviewed by Bn intelligence officer to determine if he is a viable intelligence asset or a true blue combatant who warrants detention. The determination is reviewed by the Bn Commander and if he is an intel asset or warrants further detention, he is sent up the chain of command to either Regiment or Division HQ's for further review. They in turn review the status of the combatant to determine if they are any sort of intel value or a high level combatant that we don't want on the battlefield. Once that further determination is made, they are once again sent up the chain of command to the combatant commander, GEN Abizaid and his staff to determine whether or not this combatant warrants being sent to Gitmo for further incarceration. And then once at Gitmo, they are again reviewed to determine their status. Initially, they did not receive a Gitmo Review because of the nature of the War on Terror and the fact that there weren't any set procedures in dealing with these types of combatants. Remember, the Geneva Conventions state that illegal combants are allowed to be shot. So once the procedures were set in place, they were reviewed by Gitmo authorities. As you know, several detainees were released. Unfortunately, some of them returned only to fight against the coalition again.

There were several layers of review provided for the detainees to ensure that the US is only holding the hardcore criminals who rated being sent to Gitmo. Remember, there have been several thousand combatants detained throughout the war, but there have been several thousand released as well. Do people actually think that we have the manpower and infrastructure to hold these combants forever if we wanted too? So they determine who the high prority combatants are and then those are the ones who are sitting out the war in Gitmo.

Do not think that we just capture and detain whomever we please. The American fighting men and women deserve a little more respect and consideration than that. The determination is made at the appropriate level and if it doesn't meet the necessary threshold, that combatant is released.

Anonymous Reader
7.7.2005 7:10pm
Humble Law Student:
Greedy Clerk,

You are setting up a completely false dilemma. Obviously, you have not read Volokh's post with the intention of giving due credit to his line of argumentation. You are picking and pulling parts out to set up a false representation of his arguments. Try taking your own advice that you gave to AS.

However, in the spirit of online camaraderie I will help you out.

Volokh says, "Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians."

Those and those alone are the options we realistically face in dealing with the Al-Qaeda/enemy comatants.

You say, "It is an either/or. Either we need to hold them and not try them because we have no legitimate charge to bring against them. Or we can try them because they are unlawful combatants."

This is your false dilemma. It isn't either/or. Volokh is arguing that the unlawful enemy combatants aren't legally entitled to facing official charges of some kind in our courts. We hold them without trial because we are legally entitled to do so.

All that has to be determined for us to do so, is a determination that they are unlawful enemy combatants. The power to do so is in the military chain of command with the President able to make final determinations (as head of the military). However, for pragmatic reasons, that responsibility is delegated to lower levels that are closer to the battlefield. We are under no obligation to make such determinations dependent upon outside (of the military) judicial review.

You seem to get hung up on as well on Volokh speculation about how to try them if they were lawful combatants (because many argue that we should to afford them the greater legal protections). Volokh shows that using that standard is ridiculous because if they were legal combatants (POWS) then you couldn't try them for merely defending their country etc...

So, those who argue for giving them such protections are being foolhardy. Under such conditions (POW) status, no such trials could be conducted.

Its a roundabout explanation for why no trials have to occur (outside of the military tribunals) to determine if the individual is a unlawful combatant or not and further matters. If the individual was a lawful combatant, there is no place for a trial. If they are an unlawful combatant, there is no reason once again as we are not legally obligated to.

As such, the question whether or not to have trials is irrelevant and moot. As such, the only question remains is how long to hold them. That is determined by those in charge.

Consequently, we hold them indefinetely because it is in our national security interest to do so (as determined by those in command, not by any of you armchair generals). Granted, it is open to debate and should be. But, that is an entirely different question.

Needless to say, I think it is better to err on the side of holding them longer than shorter. :side note: it is important to get out of this affliction that many of you have in equating these unlawful enemy combatants with common criminals. We don't (and rightly so) seek to make better citizens of these terrorists as we do criminals. The sole purpose is to prevent them from harming Americans. So, until we are absolutely sure that they won't, there aren't very many good reasons for releasing them earlier rather than later.
7.7.2005 7:14pm
A.S.:
No, Greedy Clerk, I think you need to read a bit more closely.

Volokh said that, as to lawful combatants, we don't try them because there is nothing to try them for. And as to UNlawful combatants, they should not be in a BETTER position than lawful combatants - i.e., entitled to a trial -- as a result of their breaking the laws of war. (Instead, unlawful combatants are in a worse position that lawful combatants, because they are subject to the same detention as lawful combatants AND ALSO subject to trial for their unlawful condut -- as it should be, given the premise that we treat lawful combatants better because they have adhered to the law of war.)
7.7.2005 7:19pm
Anderson (mail) (www):
Anderson, I may like the American justice system also, but that doesn't mean I think it's equipped to handle the large-scale prosection of enemies captured on the battlefield.

Probably not, but I meant to confine this to Qaeda prisoners. I don't believe we have 100's of Qaeda prisoners, though I could be mistaken.

Trial by jury can, I think, be waived; let the defendants decide whether to face a jury or not. As for David's other points, I think they again conflate Taliban and Qaeda. Calling soldiers to testify re: Qaeda prisoners, if needed, doesn't strike me as outrageous.

As Dismukes &Gowder pointed out, the Taliban were enemies after they continued to shelter bin Laden, but that didn't make them criminals.

Regret btw that the tone here, which was quite respectful, has dropped so sharply.
7.7.2005 7:21pm
Humble Law Student:
Graham wrote,

This is close to the nub of one of the arguments involved here. The Declaration of Independence says " We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

...but if foreigners are denied these rights then they are not part of the set of "all men" and the truths are obviously not self-evident.


Come, come now. You can't really be making this argument, but I will humor you.

To show how the setup of your argument is undeniably false, let's just apply it to the many situations we find ourselves facing.

If these "foreigners" are being denied the benefits of these unalienable rights in the manner in which you suggest, then so would anyone that we have killed/captured/wounded anywhere in the world under any conditions. Under your line of argument, there is nothing that one can do to abrogate themselves of their rights. But, as we all know, such rights fall under certain restrictions when we act or behave in certain ways, i.e. kill your neighbor, declare war on the US, etc... The situations are endless.

Your argument is laughable on its face. It fails the prima facie test if anything.
7.7.2005 7:24pm
Wince and Nod (mail) (www):
Are we to blindly trust the military that they will make sure no innocent person is detained

Yes. The American military has a justice system which has been around as long as the Federal courts. It has made the business of war and soldiering its entire focus for that entire time. Most observers think that it, along with the British military justice system (and those of their former colonies) are the best in the world. There are more expert legal minds as regards the laws of war in the American military justice system than anywhere else in the world. Pretending that the American criminal justice system would give superior results seems analgous, to me, as claiming the British courts would do a better job enforcing American law. No one is suggesting that we retry American civilian criminals under the American military justice system, are they?

Question authority, including the authority of your own arguments. It will increase their quality.

Yours,
Wince
7.7.2005 7:41pm
Cold Warrior:

A "war on terror" is like a "war on murder" or a "war on rape" or a "war on lethal weapons". Barring the development of a technology to forcibly re-wire the brains of the entire human race, there's no way that you can ever call any of those "wars" over. Therefore, you are talking about lifetime imprisonment for the captives in question.


Arguments over whether the poorly-named War on Terror is a "real" war (like World War I) rather than a metaphorical war (like the War on Drugs) do nothing to advance our understanding of the legal and ethical requirements that shape the way in which our government prosecutes the war. The current (shall we say) War on Islamist International Terrorist Groups is certainly not like World War I. But neither is it like the War on Drugs. Let's look at a few examples:

— Jose Padilla exits an airplane in New York. Assume we have completely reliable intelligence that he is, in fact, a jihadi on his way back home with instructions to acquire the materials to make a dirty bomb. He is an agent of al-Qaeda, an international organization that does not control any discrete geographic territory but that operates with the tacit or express support of the Taliban, the de facto government of Afghanistan. Al-Qaeda has declared war on the United States, Israel, and their supporters. Padilla sees himself as a soldier operating under Al-Qaeda's command. His intended battlefield? The City of New York. Q. Are U.S. Government agents free to shoot him the moment he exits the plane? I don't believe anyone would answer "yes."

— But what then to do with him? A catch and release policy would result in this:

The report includes the story of one Saudi jihadi captured in Iraq, released, and then killed in a skirmish between U.S. forces and Taliban supporters on the Afghanistan-Pakistan border. I take it the "war" — real or metaphorical — was far from over in his mind.

Of course, the Geneva Conventions and all provisions of humanitarian law were created in a different war environment. We are now in what is called "low-intensity conflict," or "fourth generation warfare." This type of warfare presents us with a hybrid, sometimes best dealt with by traditional criminal laws, but sometimes only responsive to military responses, including detention of combatants in military custody.

And does al-Qaeda think it's involved in a criminal conspiracy or in a war? If a war, what type of war? See this and then tell me whether a criminal law model is adequate.
7.7.2005 8:17pm
Jim Rhoads (mail):
Prof V., Al Maviva, Splunge, Anonymous, Humble Law Student and Wince seem to have taken the same Military Justice courses that I did nearly 40 years ago, or at least they seem to have familiarized themselves with their tenets. From my conversations with colleagues that remained in military service, I don't think that law has changed that much since I was trained and trained others in handling prisoners collected during combat. The concepts described by the above-listed commenters sound mighty familiar to me.

What I hear from the various critics of these posts is not knowledgeable discussion of the application of the actual laws and regulations governing our Uniformed Services (and they are many and detailed, trust me), or of the various treaties to which the US is a party, including the latest iteration of the Geneva Conventions. Rather, they seem to be arguing that the laws and conventions of war need to be changed, because they seem unfair or do not produce the result (trial or freedom) they want for the Gitmo Prisoners.

I would be interested in hearing any specific laws or regulations of the United States or citations to the Geneva Conventions or other treaties to which the US is a party which counter Professor Volokh's post and those individuals whose comments have supported him.

P.S. The Declaration of Independence and Constitution don't count as far as I am concerned.

Jim Rhoads (vnjagvet)
7.7.2005 8:18pm
arbitraryaardvark (mail):
I am insufficiently informed to discuss the law of this topic, so i'll limit my remarks to morality. Just war theory posits that there are a set of moral rules to be followed in mass conflict; the alternative view is that are no rules of just war. Either approach can be criticized, and i'm not taking sides on that here. Just war theory hold that enemy combatants in a declared war can be detained without trial for the duration of the conflict, after which their status is negotiated by diplomatic terms. Eugene analogizes from that to indefinate detention of undefined enemies. I don't think that works. For one thing, i think his a) b) c) leaves out other options - a person can be prevented, or discouraged, from rejoining combat by means short of eternal incarceration. While we get specific deterrence of those being held (assuming arguendo prisoners can't do violence), we don't get general deterrence. Formerly neutral persons would tend to see the usa as an unjust oppressor (the way i once felt about the shah of iran) with results such as the subway bombings. Indefinate detention of enemy combatants, who have a colorable claim to being a citizen militia defending their homes and homelands, risks losing the battle for hearts and minds. It creates an impression, rightly or wrongly, among the unsophisticated, that the US isn't playing by the rules, but is just engaging in might makes right. When a conflict devolves into might makes right, the advantage goes to the player with the least to lose, who can more readily play the game of mutual assured destruction.
On another point, if there have been hearings, what is the status of the hearing transcripts? Classified? Free online? Available at a dolar a page at some office somewhere?
7.7.2005 8:52pm
Jim Rhoads (mail):
AA:

Should we change the existing laws and treaties, and implementing regulations so that those individuals who are not conforming to the laws and conventions of war (either in dress or tactics) which our troops have encountered on the battlefield, are treated to conform more to the expectations of the "unsophisticated" here and around the world than to ensure our troops safety? If so, whose hearts and minds do you think this action will win? Whose will it lose?
7.7.2005 9:11pm
Steve:
This is clearly a case where the law needs to evolve in some direction. The Supreme Court wrestled with this issue in Hamdi; when you have a "war" with no clear ending, does it really follow that you can hold an "enemy combatant" for potentially the duration of their natural life? The Court was clearly troubled by the notion, but wriggled out of it by saying that active hostilities are still taking place in Afghanistan, so the issue is moot for now.

We only have a true dilemma if all of the following are true:

1) All the people we are talking about are legitimately captured enemy combatants;
2) All of these people are determined to attack U.S. interests;
3) There is no point at which these people will lose their determination to attack U.S. interests, notwithstanding the state of play in Afghanistan, Iraq, or anywhere else; and
4) We have absolutely no way of proving 1, 2, or 3 beyond a reasonable doubt.

I'm not convinced that all of these things are necessarily true, although I wouldn't doubt that there are some people who fall into this category. There will always be people in the world who wish us ill. I'm not sure that enables us to declare an unending state of war. There must be a better answer.
7.7.2005 9:21pm
postroad (mail) (www):
If you do some research you will discover that many many captured enemy soldier, in uniforms, were in fact killed rather than being taken back as POW...I know this first hand. But this is clearly a different type of "war," as noted.

Wh7 not a happy compromise? If we do not want to jail them forever and we do not want to let them go, and we do not want to kill them, why not lop off their arms and free them? This makes them less able to be bothersome and additionally makes them easier to spot when boarding planes etc.
7.7.2005 9:51pm
Mark Delles:
Let's see. Illegal combatants captured on the battlefield out of uniform. Why not follow the much vaunted international law and shoot them all? Hey, I'm just a former Marine, but Houston Lawyer has my vote. The thought of Amnesty International having apoplectic fits over this tactic is an added bonus. Oh, and the bodies do not get returned to discourage the others
7.7.2005 10:19pm
Occam's Beard (mail):
Lawful combatants presumably have a state that will look out for their interests, that state may be destroyed by the war, but at that point the war is presumably over and they can be realesed. I think this is an important part of the equation that you are overlooking.


Drew, I think the part you're overlooking is that because they don't have a state that looks out for their interests, and they are not lawful combatants, they forfeit any protection from anyone. Someone please correct me if I am mistaken, but I believe that under international law we'd be perfectly justified, if we were so inclined, in standing every man-jack of them against a wall and shooting him for fighting out of uniform. Their position is much more akin to that of spies and saboteurs (or, in earlier times, to pirates) than it is to prisoners of war.
7.7.2005 10:31pm
triticale (mail) (www):
This entire discussion is just a little bit premature. Why don't we revisit it after we have confirmation of the rumor that a released Gitmo detainee was involved in carrying out the London bombings?
7.7.2005 10:39pm
Moneyrunner (www):
I find Volokh’s argument to be well reasoned and a succinct summation of the issues and alternatives.

I have never understood the rationale behind the desire to try unlawful combatants in a war. It seems to me that those who advocate civil trials really don’t believe that we are in a war, as is evident by some of the posts here. For them, we are using the military in a fairly large scale criminal investigation. And 9/11 was simply a large crime carried out by a finite group headed by Bin Laden. The real goal should have been to arrest Bin Laden and his gang and that would have been the end of the case.

The reality on the ground, the metastizing of Islamofascism, the bombing of Bali, Madrid and London, the murder of Theo van Gogh by the ideological heirs of Bin Laden never seem to penetrate. The reality of militant Islam is simply ignored. We appear to be talking past each other. Sorry it has come to this.
7.7.2005 10:46pm
Occam's Beard (mail):
Apropos this discussion, the Brits have a lovely phrase: "detained at Her Majesty's pleasure."

Entirely appropriate for the Gitmo crew, IMO.
7.7.2005 10:52pm
Jim Rhoads (mail):
Steve:

What is the appropriate forum to decide the questions you pose? SCOTUS? Congress? Treaties among nations? The UN?

Traditionally, it has been, in essence, the Executive Branch (Departments of War and Navy, then the DOD)with the approval of Congress, through statute (the Uniform Code Of Military Justice Title 10 U.S.C. Chapter 47) but in implimentation of treaties among nations.

The Supreme Court's role is relatively minor, inasmuch as the Constitution gives Congress and the President the power to declare and make war.

Even when the country was beset by a civil war and two world wars, it seems to me this division of powers served us pretty well. SCOTUS made a number of important decisions during wartime, but few challenged the status quo as set up by Congress and the Executive.

Are you proposing a change? How do think it might take place politically? I am doubtful Congress or the Executive will change anything, and I don't see SCOTUS making drastic changes in these times.
7.7.2005 11:01pm
Rick Ballard (mail):
Occam's Beard,

I would think those taken in the act of piracy would be closest to it. Their lives have been forfeit since the lawful ascertainment of their status by a duly constituted tribunal. A POW has an honorable status that at times warrants the consideration of parole. Unlawful combatants are not worthy of such consideration. Those incarcerated at Guantanamo are literally living on mercy. I find it strange that it is necessary to even mention that fact.
7.7.2005 11:05pm
JeremyT:
SimonP:

Illegal Combatant

The term has been around for at least 100 years and has been used in legal literature, military manuals and case law. It was introduced into US domestic law in 1942 by a United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
7.7.2005 11:13pm
Jack of Spades:
IANAL, but I've been advocating Rick Ballard's approach since about January 2002. I think the appropriate model for dealing with Al Queda is the Barbary Pirates, who, if I have my history correct, were non-state actors upon whom the United States declared war. (And I'd be amused to see Congress issue Letters of Marque and Reprisal against Al Queda; why not tap a little deeper into the well of private industry? The US was not signatory to the 1856 Declaration of Paris.) In any event, it seems to this layman that terrorist networks are the modern version of pirate bands, and that section of international law might prove useful in figuring out how to handle them.
7.7.2005 11:52pm
JohnAnnArbor:
I'm amazed by some of the comments on this board about how enemies, fighting with no uniform in Afghanistan, are somehow entitled to jury trials in America!

Imagine a Marine corporal reading these convoluted arguments. He will realize that each captured man in Afghanistan just adds to this problem.

Later, he has managed to capture a fighter who just participated in an ambush on American and Afghan forces. The fighter slowly lowers his weapon as he realizes he's caught.

The Marine, rifle pointed at the fighter's chest from five yards away, thinks it over:
1) Capture the guy. As his reward for trying to kill you and your buddies, he goes to tropical Cuba and has all the leftists in the Western world celebrating his cause and vilifying his captors (you and your buddies trying to live and to free Afghanistan of these scum) as Nazi/Soviet/Khmer Rouge/etc. thugs. The process will drag on for years.
2) Pull the trigger. Problem solved.

The fighter sneers just a bit at this moment.

Which choice would the average Marine choose? Furthermore, which choice would he be ENCOURAGED to choose by the leftists who clearly value the lives of commited Islamofascist fighters much more than those of our men and women in uniform?
7.7.2005 11:59pm
texasviolinist:
We have been learning for a long time how to eradicate vermin and pestilences from our physical environment. Its time we recognized that we are not fit to have a culture if we won't eradicate and eliminate the plagues and pestilences that infect our culture and seek to destroy it. Terrorists (non-uniformed combatants and insurgents) can and should be shot either on the battlefield or after a period of interogation. This is a highly moral thing to do. Holding them indefintely, releasing them after a short period or otherwise coddling them is depraved and immoral. Our culture is worth fighting for. It is worth dying for and yes it is worth killing for.

Coercion for information is ok if it is deprivation of some sort (bread and water, darkness, isolation etc). Direct infliction of pain is always immoral. A child who tortures rats before killing them is depraved even if they are rats. A child who kills rats straight-away in a quick and efficient manner is acting morally.
7.8.2005 12:16am
Jim Rhoads (mail):
This article by Andrew McCarthy, a former federal prosecutor contains some further information on the Geneva Conventions and the difference between the version entered into by the United Kingdom and the one ratified by the US:

McCarthy article

While it is in the National Review (I know some of the commenters here might be less than impressed) I have found Mr. McCarthy's work to be pretty accurate.
7.8.2005 12:27am
Jim Rhoads (mail):
Sorry the link didn't work.
7.8.2005 12:29am
Paul Gowder (mail):
What, if I may be inflammatory for a moment, are you all who are against trials so scared of?

After all, these people are guilty, right? They're terrorists, right? We have good reason to believe they're involved in killing Americans, right? Why the hell can't they be tried and why can't we prove it?
7.8.2005 12:34am
JulianKu (mail) (www):
I have a response to McCarthy's piece on my blog at ">.

I think Eugene is basically right, but he doesn't quite deal with the factual problem: what if the "combatants" unlawful or otherwise are not really combatants? A lot of the battling in the U.S. courts has been over whether the U.S. has to at least give detainees the right to challenge their status, per the Geneva Conventions. The U.S. government has resisted even this basic determination. They may be right as a matter of law (I'm not sure) but as a matter of policy, surely there must be some mechanism for correcting the inevitable mistakes that may occur in the war on terrorism?
7.8.2005 12:40am
Rick Ballard (mail):
Here is a primer for creating HTML links for those having difficulty.

Paul Gowder,

I've read through all the comments and I can't find anyone arguing against conducting a trial of the unlawful combatants before a military tribunal. To whom are you referring in your comment?
7.8.2005 1:09am
Humble Law Student:
Paul Gowder wrote

What, if I may be inflammatory for a moment, are you all who are against trials so scared of?

After all, these people are guilty, right? They're terrorists, right? We have good reason to believe they're involved in killing Americans, right? Why the hell can't they be tried and why can't we prove it?


Okay, let me indulge you a bit. Just as a pragmatic matter, it would be horrendously detrimental to our armed forces to do so. So, for every one of these thousands that we capture (the true number that has passed through numbers in the hundreds of thousands, but most are not detained and are released quickly) and hold at one of the several camps, we then have to have the soldiers in the units that captured him/her come and testify before a court? Are you kidding me? You can say goodbye to our armed forces efficiency and morale. The enormous scope of the logistics that would be required when reduce our armed forces frontline fighting ability to nothing.

If anything, you would never anyone captured, the soldier would just sooner blast the guy to pieces than have to fly back to the states to testify on what he was doing.

The idea is just completely impractical, especially because of the number of people held by the US.

I'll leave the legal and moral issues to others much smarter than myself.
7.8.2005 1:15am
SimonP (mail) (www):
Jeremy-

Thanks much. Like I suspected, however, the defintion of enemy combatant you provided does not distinguish between the two types I identified in my post, for which I think there are strong moral and prudential arguments for treating differently.
7.8.2005 8:48am
Paul Gowder (mail):
Humble law student: I'm willing to compromise on that level: they could be tried in the countries they're picked up in, either by local courts or even by U.S. military courts -- REAL millitary courts with real lawyers and evidence and such, rather than secret "military tribunas."

Rick: See Humble Law Student's posts, plus JohnAnnArbor, plus Moneyrunner, plus Mark Delles etc. etc. etc. -- all of whom appear to be rather dramatically against trials and several of whom appear to be in favor of summary field executions.
7.8.2005 9:32am
Wince and Nod (mail) (www):
Paul,

I am not a lawyer either, but as I understand it, secret military tribunals are real military courts under the Geneva conventions. Why the secrecy? The obvious need for security of information. Sorry. Secrecy is requires. Loose lips sink ships. Your position is a deadly one.

Please try to frame your solutions in a manner that will help the military, not harm it - but be aware that if you do so, you will probably end up duplicating most of their work and deciding that Gitmo is rather well run.

Everybody acts as though this stuff is easy, including me. I keep reminding myself it's not.

Yours,
Wince
7.8.2005 10:11am
Paul Gowder (mail):
Wince: here's the thing. I don't think we can justify the utter abandonment of the rule of law, our ideals of justice, etc. under the rubric of "military necessity" in this war. At least not in Iraq. No necessity justification can support the abandonment of the rule of law in Iraq, because the presense of our soldiers in Iraq itself is unnecessary!

We can make reasonable pragmatic compromises to protect the safety of our soldiers, but we have to remember that our leaders chose this war, our leaders sent the troops there, and our leaders can't use their own choices and their own international adventurism as a "necessity" excuse justifying their ignorance of the basic structures of justice and civil society. How can our government claim that their hands are forced into these extrajudicial detentions when it's their own damn joke non-war that caused it in the first place, at least in Iraq?

It makes me absolutely ill that our president can play G.I. Joe with real people and use his childish misbehavior as an excuse to loose a tsunami of oppression on the people of the countries he conquers. He sends the army to conquer some foreign country, leaves the troops there to act as basically an auxiliary police force when the new puppet government is put in place, and then handles the entire populace of that country as if they're all enemy soldiers. Throw a rock at a tank? Indefinite detention!! Be present in the home of an insurgent who has a hidden weapons cache? Indefinite detention! It's barbaric. And don't even hide behind this enemy combatant nonsense. Read this story, instead. "Coalition military intelligence officials estimated that 70% to 90% of prisoners detained in Iraq since the war began last year 'had been arrested by mistake,' according to a confidential Red Cross report given to the Bush administration earlier this year."

If they don't want to take the risk to our soldiers of giving the people -- many of whom may be entirely innocent -- who they capture anything close to legitimate legal process, they have an easy solution. Withdraw the army. Stop spending our peoples' blood, our tax dollars, and the lives of countless innocents abroad on this insane campaign of conquest-under-false-pretenses. Just stop it.
7.8.2005 10:51am
Anonymous Reader:
Paul Growder,

It appears that you have some very strong feelings concerning whether or not we should be in Iraq/Afghanistan or not. That is a moot point; the US and coalition forces are already there. Also, detainees have already been taken.

What you have failed to state is the fact that, yes, there are a lot of prisoners detained, some of whom are detained by mistake. However, those we have no reason to keep are released most expediently; going so far as to return them to their village. Your argument does not mention this extremely important fact. Just as here in the states, the police (under reasonable suspicion) can arrest someone, but after questioning, release that individual. That is roughly, almost the same process with battlefield detainees just as I stated earlier in this discussion.

Numbers and percentages are important. But what's even more important is their context. That 70% to 90% number may indeed be the number of people who are wrongly detained. But more importantly, what's the percentage of people who are DEFINITELY detained in Guantanamo?

The US and coalition forces are doing an excellent job in an extremely challenging environment. If the US followed the exact rule of law, these illegal combatants would find themselves summarily executed for violating the laws of war. So please relax and take a breath. We are in Iraq/Afghanistan. Discuss Prof Volokh's ideas with that in mind.

Anonymous Reader
7.8.2005 12:39pm
Anonymous#2:
Anonymous Reader wrote:
However, those we have no reason to keep are released most expediently


Well, I don't really have a dog in this fight, but the statement above ignores the whole point of the conversation. Is there a well defined process (something in writing) which gets carried out to determine which captives are released and which are detained? Or is it an ad-hoc process, dependent upon the whim of those with the power and authority to do the detaining?
7.8.2005 12:55pm
Steve:
This is a legal blog. You do not have to be a lawyer to post here, obviously, but you should at least be interested in discussing what the law is and what it should be. Prof. Volokh has raised a fascinating question as to how the law should deal with a situation that doesn't quite fit within our historical framework.

The intermittent diatribes about how "liberals care more about the rights of terrorists than our own soldiers" are childish and add nothing to the discussion. The very ISSUE raised by Prof. Volokh is to what extent these "enemy combatants" are entitled to rights. If the question related to the scope of habeas corpus review available to convicted murderers, would anyone whose answer was something other than "none" be a liberal who cares more about the rights of murderers than innocent citizens? It's not treasonous, as far as I'm aware, to attempt to analyze the question presented.

Jim Rhoads asks a good question, above. Who is supposed to make these determinations as to whether we are at war, how we should handle people captured in the course of the war, etc? Well, historically the courts have pretty much deferred to the Executive in the conduct of war, and I wouldn't expect that to change. In the Hamdi case, for example, it's notable that the Court only set the outer parameters for the type of "enemy combatant hearings" these U.S. citizens were entitled to. Beyond those outer parameters, it's up to the Executive and the military.

The real question, though, is when does the war end? If we define it as a "War on Terror" that only ends when there is no more terrorism in the world, obviously that war never ends. As the Supreme Court noted in Holmes v. U.S., that Court has used several different tests for determining when a "war" ends, based upon both the nature of the conflict and the nature of the war power sought to be exercised. In other words, the law remains flexible.

Hamdi made it clear that "enemy combatants" captured in Afghanistan could be held for the duration of hostilities in Afghanistan, and prudently declined to address the question of what happens afterwards. I think that while fighting continues in Afghanistan and Iraq, it is unwise for our legal system to attempt to determine what happens afterwards. But hypothetically, if those hostilities end, and we continue to assert the right to imprison individuals indefinitely because a global "war on terror" is ongoing and these individuals may take up arms against us if released, we may have to consider whether it makes sense to require some governmental showing to that effect.

Until the current hostilities end, there's no need to address this. But I think we should be careful before we blithely accept the concept of a war, complete with exceptional war powers, that never ends.
7.8.2005 1:04pm
Paul Gowder (mail):
Anonymous Reader:
The US and coalition forces are doing an excellent job in an extremely challenging environment. If the US followed the exact rule of law, these illegal combatants would find themselves summarily executed for violating the laws of war. So please relax and take a breath. We are in Iraq/Afghanistan. Discuss Prof Volokh's ideas with that in mind.

No. We can't take the fact of the legal and moral culpability of our leaders in starting a war out of the question of the legal and moral way that they can wage it. A just war may justify certain compromises on our values in order to carry it out. An unjust war does not justify those compromises.

Your contention amounts to giving anyone who wants to start a war the power to do so as a fait accompli and then abandon the principles on which our society is founded based on that war. Any time they feel like rounding some folks up without legal process, hey, time to call it a war.
7.8.2005 1:14pm
Steve:
In Youngstown Sheet &Tube Co. v. Sawyer, Justice Jackson memorably observed: "[No] doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture."

However, let us remember a key distinction: With the exception of unusual cases like Hamdi involving U.S. citizens, we are not talking about the Executive Branch's mastery over the INTERNAL affairs of the country. We are talking about non-citizens captured overseas in connection with hostilities. While you can argue that the war was unjust, that many detainees were not engaging in acts of war, etc., you can't get away from the principle that the Executive has the majority of the discretion in this scenario, at least until the day the troops return home. The President's control over war and foreign affairs has been consistently reaffirmed.
7.8.2005 1:25pm
Humble Law Student:
Paul Growder,

Ahh, so your true colors emerge. Its unfortunate that many such as yourself seem unable to calmly assess our military and administration's actions and goals because you are too blinded by your reflexive anti-Bush hatred (bordering pathological in your case it seems)

However, I will now calmly dismember your statements on their merits or lack thereof.

Paul Growder wrote, "here's the thing. I don't think we can justify the utter abandonment of the rule of law, our ideals of justice, etc. under the rubric of "military necessity" in this war. At least not in Iraq. No necessity justification can support the abandonment of the rule of law in Iraq, because the presense of our soldiers in Iraq itself is unnecessary!"

Seriously, who would disagree with that statement in regards to "utter abandoning the rule of law." Your problem in understanding is that you (for some reason) refuse to acknowledge that

the detainess are held in accordance with the rules of war!


Your statement is meaningless, because what you express, while it may be your kneejerk emotional response, is hardly a fair represenation of reality! We have already discussed how the rules are being followed, and others including myself have shown that arguments against our current detention policies are not founded on current law, merely certain people's personal wishes.

Also, your argument is essentially a bait and switch. You argue that we should follow the rules of war, espcially in regards to enemy combatants. As previously shown, we do. However, then you argue that the rules we should follow aren't adequate and only until we follow some "other rules" not explicated anywhere (just general rather amorphous ideas) will we be acting properly. Well, nice try, but it won't work. It is perfectly legitimate to argue that the rules should be changed, but it is intellectually irresponsible to make such accusations that we don't follow the rule of law.

Paul wrote again, "And don't even hide behind this enemy combatant nonsense. Read this story, instead. "Coalition military intelligence officials estimated that 70% to 90% of prisoners detained in Iraq since the war began last year 'had been arrested by mistake,' according to a confidential Red Cross report given to the Bush administration earlier this year."

Oh come now. I read that article and it is the same meaningless nonsense and here is why. The US military has detained several hundred thousand over the past few years in Iraq and Afghanistan. However, most are released almost immediately! Anytime, an individual is found/captured in a compromising situation they are apprehended to determine if they are a threat or not. However, the vast majority (several hundred thousand) are released very quickly or immediately. You only have the relative few that are found to be threats from the military tribunal that are kept locked up in Gitmo etc.. So, you little statistic is worthless. How many American citizens are questioned at police stations and released quickly? Its the same basic principle.

So there is the effective dismemberment of the two substantial arguments in your post. The rest is really outside of the scope of this discussion. But, it is quite helpful to see understand the pathology behind the arguments.

One more thing, Paul you say in an earlier post, "See Humble Law Student's posts, plus JohnAnnArbor, plus Moneyrunner, plus Mark Delles etc. etc. etc. -- all of whom appear to be rather dramatically against trials and several of whom appear to be in favor of summary field executions."

Okay, maybe we shouldn't argue, because you seem to lack basic reading comprehension. Please, show me where I am "dramatically against trials"? I argue against civil trials for unlawful combatants, but I argue strongly in favor of military tribunals which, until your sweeping presumptuous pronouncements, have always been considered trials. Unless, this is your old bait and switch which you seem to rely on.
7.8.2005 1:36pm
Anonymous#2:
Steve wrote:

With the exception of unusual cases...


Doesn't the contention in this thread pretty much revolve around these 'exceptions'? Aren't we attacking straw men if we assume otherwise? I don't think anyone is arguing we should unconditionally release obviously guilty individuals.
7.8.2005 1:45pm
Anonymous#2:
Humble Law Student wrote:


Please, show me where I am "dramatically against trials"? I argue against civil trials for unlawful combatants, but I argue strongly in favor of military tribunals which,

How about here?

Its a roundabout explanation for why no trials have to occur (outside of the military tribunals) to determine if the individual is a unlawful combatant or not and further matters. If the individual was a lawful combatant, there is no place for a trial. If they are an unlawful combatant, there is no reason once again as we are not legally obligated to.

As such, the question whether or not to have trials is irrelevant and moot. As such, the only question remains is how long to hold them. That is determined by those in charge.


I think a reasonable person could read those sentances and conclude that while you do mention military tribunals in an offhand manner, you are mostly against trying these individuals. I don't think it's clear that the a resonable reader would come to the conclusion that you are strongly in favor of military tribunals.
7.8.2005 1:57pm
Humble Law Student:
Anonymous#2

You make a great point. I didn't precise enough language. From a legal standpoint, military tribunals are trials. However, I (in that point you quoted) used trials as only to mean civil trials. That was my bad.

In my defense, I did say this earlier in that same post,

"All that has to be determined for us to do so, is a determination that they are unlawful enemy combatants. The power to do so is in the military chain of command with the President able to make final determinations (as head of the military). However, for pragmatic reasons, that responsibility is delegated to lower levels that are closer to the battlefield. We are under no obligation to make such determinations dependent upon outside (of the military) judicial review."


The last part is key. Civil trials aren't required, but military ones are. Just to clarify, I am STRONGLY in favor of military trials in the form of tribunals.

I apologize for not making sufficiently accurate distinctions.

God knows one needs to...
7.8.2005 2:04pm
Humble Law Student:
To clarify further, someone may raise the point that actually military tribunals aren't technically necessary, because to satisfy the Geneva protocols the determination can technically be made by just the President as head of the Armed Forces. While true, I don't advocated that. I prefer that just adjudications be made by a military tribunal as is the usual current practice.
7.8.2005 2:08pm
Anonymous#2:
Humble Law Student,

Just to further refine things, what do you think of the Jose Padilla situation? Here's my (not necessarily 100% accurate) take on the case. He is an American citizen, arrested peacefully (no combat was taking place) on American soil. He was subsequently declared an unlawful combatant on the authorization of a "nation security letter" issued by the president. He was then transfered from civilan to military custody, where he remains under indefinite detention, without being charged with a crime. (any corrections needed?) Do you believe that this is 100% proper and legal? Would it be better if the unlawful combatant status was confered by a military tribunal instead of the president? Is there any role for the civilan courts to oversee cases like this?
7.8.2005 2:21pm
Humble Law Student:
Anonymous #2

I was hoping that you wouldn't bring that up. Because, honestly, it isn't a situation that I have been able to firmly decide on. While, I am generally familiar with the Geneva convention protocols and US policy etc... This is a hard case, and I think beyond my pay grade.

However, let me put a few thoughts together. (Its unfair for me to get off too easily)

The fact that he was an American citizen is the most troublesome for me, as for many others I suspect. I believe your run down of the events surrounding him is fairly accurate, however, if anyone has any additional information I would welcome it (I feel too lazy right now to go digging)

I don't believe the Geneva protocols make a distinction in regards to a person's citizenship (someone check me on that?) in naming a person an unlawful enemy combatant. So, if my understanding is correct, then "technically" the administration is well within their rights to do so, in regards to international law. However, this brings up an interesting conundrum. If that is the case, then it would appear that international law is trumping domestic law (his American citizenship is what makes domestic law relevant in this case). Something, I am not sympathetic to. On the other hand, the executive is given great leeway in prosecuting wars, so it may not necessarily be international law trumping domestic law.

So, if the war involves American citizens, does the executive's power get restricted somewhat? I would think so. But is it definetely murky waters.

This issue is one that I am very open to. I haven't found a satisfactory answer to it yet. Too many questions that I can't resolve in my head.

However, I'm sure many of you would be willing to help? :)
7.8.2005 2:34pm
Occam's Beard:
The civil trial by jury argument seems nonsensical, and ill thought-through, to me. Besides the practical difficulties it would impose on the military (alluded to above), who exactly would be the peers of these clowns who would comprise the jury, if they are tried in the U.S.? And what justification would there be for a jury trial run by Americans in Iraq with Iraqi jurors?

The whole idea is silly.
7.8.2005 2:54pm
Anonymous#2:
Humble Law Student,

In hard cases like this, is there any compelling reason to not default to the court system with the most protections (here I'm thinking the civilian one). The only reason I can think of is the existence of illegally gathered evidence. Are our regular courts incapable of dealing with this in a safe and proper manner? And if that is the case, does that show an advantage of the military system, or a weakness of the civilian system?
7.8.2005 2:58pm
Wince and Nod (mail) (www):
Paul,

You said: I don't think we can justify the utter abandonment of the rule of law, our ideals of justice, etc. under the rubric of "military necessity" in this war.

Sorry, I must not have been clear. We have not utterly abandoned the rule of law or the ideals of justice. In fact we are working well within the rule of law and in excellent accord with our ideals of justice. I am not pretending that the military justice system, which has a well-established written process for handling detainees, does not make mistakes. It's a real justice system, and like the real criminal justice system it makes real mistakes. This process detains (and mainly releases) persons who are at the wrong place at the wrong time. We keep in detention those who are there for the wrong reason - that is, the ones who are combatants.

You may remember Francis Scott Keyes. He was detained by the British while requesting the release of a previous detainee. He was kept because releasing him would have revealed important secrets about the British battle plan. Once the battle was over, he was let go. This was entirely in accord with the laws of war, then and now. Innocents are found on the battlefield extremely often - usually because the have a perfectly good reason to be there. They are often detained, if only to ensure their safety. You'll find that that a lot of American military legal procedure is like that - designed to keep civilians safe. Later, when safely away from the fighting they are politely questioned and released.

You and I are in an extremely difficult position to discuss this matter. We are arguing about military law, a subject matter area in which we have no expertise. Amazingly you argue that the military legal system, filled with military legal experts has utterly abandoned the rule of law and our ideals of justice. I'm not a civil lawyer either, but might that not be a claim of gross negligence or malfeasance? I'm sorry, but you haven't got the goods to back that up.

I doubt you are contending that because the real criminal justice system make real, documented mistakes, including real documented mistakes enforcing unjust laws, that we should open the prison gates and let everyone out, plus disband the police. That's what your argument appears to boil down to, however.

Yours,
Wince
7.8.2005 2:59pm
Paul Gowder (mail):
Dearest incredibly Un-Humble Law Student:

We have already discussed how the rules are being followed, and others including myself have shown that arguments against our current detention policies are not founded on current law, merely certain people's personal wishes.

And you completely fail to understand my point, viz.: if the current use of military force can not be justified either legally in our constitutional understanding of the term "war" or morally in our understanding of the concept of a just war, then the "rules of war" are not relevant.

The rules of war only are implicated legally when there is a war, and -- although I defy anyone to find any caselaw on the subject -- it's entirely reasonable to take the position, as I have been doing, that an amorphous multi-jurisdictional "war against terror" with no enemy is not a war within any sense that the term has ever been used.

(The analogy to the Barbary Pirates is perhaps the best equivalent that I've seen in this thread -- although I'm given to understand that there was some state involvement in that piracy. If anyone has any information as to the actual legal status of anyone captured in accordance with the Navy's destruction of the Barbary Pirates -- like whether or not they were tried -- it would be useful.)

Following the utter destruction of all claims that the U.S. is involved in a "war" in the conventional sense, several people attempted to justify the acts of the U.S. military in holding people indefinitely without legal process as necessary to preserve the lives of our soldiers. This is not a legal argument as such, and I did not respond to it in legal terms. I responded to it in ethical terms, by pointing out that this justification only applies if the war itself is necessary.

Your accusation of a bait-and-switch is incoherent. I have never set forth the argument that we should follow any "rules of war," I have consistently denied that this constitutes a war in the sense that rules should be applied. The only exception -- one that has not come up in this discussion -- is that I believe that the Geneva conventions should apply to the extent that Iraq is an "occupied territory" within the meaning of Geneva Convention IV, Art. 32, and anti-torture provisions should regardless apply under U.S. law (including, on U.S. territory, 18 USC § 2340, and I'd suggest the 5th and 8th amendments internationally as well) and various other treaties. Since that isn't necessarily predicate on the existence of a "war" as such, there is no inconsistency.

As for your allegation that each person picked up gets a hearing in front of a military tribunal, there's absolutely no way to verify or refute this claim, because those processes are kept secret. I see absolutely no reason to believe any claim that each person who is picked up and held for a meaningful length of time in Iraq sees a tribunal, or that those tribunals are conducted in any way even remotely resembling a fair method of determining who was, and who was not, an enemy combatant. I note, in this context, that the U.S. government had not even released written procedures or started hearings for the tribunals for the people at Gitmo as of a year ago. This is gitmo: when prisoners have already been held for quite some time and removed from the country of origin. I'm given to understand that some detainees have finally been released per military tribunals in Gitmo (some belatedly on a remarkably ironic excuse that they might be tortured in their home countries, an excuse that certainly didn't bother the perpetrators of "extraordinary rendition"), but lord knows what kind of process the ones still inside got, and this doesn't even begin to address the ones held in Iraq. I've not seen any credible reports that the people in Iraq are getting any kind of hearing. Do you have contrary evidence? If so, please post it.
7.8.2005 3:00pm
Robert Schwartz (mail):
Norm Geras and Joe Katzman restate the obvious about the Islamo-Nazi Terrorists:

Hostes Humani Generis. Delendi Sunt.

To which I add:

All of this lawyer baffelgab merley distracts us from the task at hand:

Hunt them down, and kill them without mercy, which they do not deserve as they have shown no mercy on their victims.

May they receive only justice from the One who will judge us all.
7.8.2005 3:08pm
Anonymous Reader:
Humble, I don't know enough about Padilla's specific case to comment on him, but I do have some thoughts on possible classifications of American citizens.

I feel that this is an extremely difficult and complex situation. I don't think it would be morally acceptable to "remove" an American's citizen's rights, however, this isn't so cut and dry (from my non-lawyer) point of view. I guess the best way for me to explore this issue is through an example. What would happen if we were to have captured the 9/11 terrorists who illegally entered the US right before they took over those planes? For the sake of the argument, let's say that the people on board were able to subdue them with no loss of life; however, it was extremely clear what their intentions were vis-a-vis the WTC towers. Would those terrorists be tried in accordance to civil law or be declared illegal combatants?

Given that we are at war, would these people be treated as spies or saboteurs in the Geneva Convention sense? Or just be arrested and tried as a civilian attempting murder? I think that is the fundamental question underlying Padilla's detention. Not necessarily that he's a citizen or not. What if he had diplomatic immunity? I don't know the answers to these questions, but I guess that's why it's not an easy nut to crack.

Anonymous Reader
7.8.2005 3:14pm
Anonymous Reader:
Paul Growder,

If I follow you, you are saying that since we are not at "war" there are no "rules of war" to follow?

"...if the current use of military force can not be justified either legally in our constitutional understanding of the term "war" or morally in our understanding of the concept of a just war, then the "rules of war" are not relevant."


On your other point, I will guess and say that not all persons detained on the battlefield are given a military tribunal. That would be akin to taking every person that police arrest to court. That wouldn't make much sense and would be a huge waste of time. Only the ones who we have reason to detain for long periods of time are given tribunals to ensure that we are on solid legal ground in detaining those combatants.

Military Tribunals, for reasons that have already been noted, cannot be public information. Just understand that those combatants who actually reach the tribunal level have already passed through several layers of scrutiny from the capturing company to the CENTCOM/Pentagon level. There are too many people involved in the decision making process to imply that there is a conspiracy to detain (house, feed, etc) combatants for any reason under the sun.

Also, military lawyers are LAWYERS. I get the feeling that some people (not necessarily you) assume that the military is de facto unjust. So I just wanted to clear that up. Please understand that these military lawyers go through all the same educational processes that civilian lawyers go through with the addition of a short Military Justice School in order to become more familiarized with the UCMJ and laws of war, etc.; topics that civilian lawyers aren't required to learn.
7.8.2005 3:41pm
Steve:
You can believe that the "War on Terror" is a meaningless construct and still believe we are engaged in active hostilities in Iraq and Afghanistan, by the way.
7.8.2005 3:49pm
Paul Gowder (mail):
Anon. Reader:

Yes. I'm suggesting that the appropriate rules to follow are those of civilian life, with minimal pragmatic modifications. The role of our soldiers in Iraq right now is equivalent to a heavily-armed auxiliary extra-legal police force, not a war.

I fail to see why, for example, insurgents in Iraq can't be tried by Iraqi courts.

As for your point re: the secrecy of military tribunals: fine, but citizens in a democracy have no reason to trust the assurances that they are happening. I don't see why I should "understand that those combatants [sic] who actually reach the tribunal level have already passed through several layers of scrutiny from the capturing company to the CENTCOM/Pentagon level." The Pentagon won't provide proof or accountability, so why should we believe it?

As for there being no reason to imply that there's a conspiracy to detain people for any [or, as I suggest, no] reason, (a) it doesn't have to be a conspiracy, just simple incompetence in implementation covered up by high-up officials who want the public to believe they're doing their jobs; and (b) why not a conspiracy? There was a conspiracy to justify the war, why not a conspiracy to wage it?
7.8.2005 3:54pm
Humble Law Student:
Paul Growder,

You aren't making much sense. Wince and Nod gets it right in his post when he says,

"Sorry, I must not have been clear. We have not utterly abandoned the rule of law or the ideals of justice. In fact we are working well within the rule of law and in excellent accord with our ideals of justice. I am not pretending that the military justice system, which has a well-established written process for handling detainees, does not make mistakes. It's a real justice system, and like the real criminal justice system it makes real mistakes. This process detains (and mainly releases) persons who are at the wrong place at the wrong time. We keep in detention those who are there for the wrong reason - that is, the ones who are combatants.... You and I are in an extremely difficult position to discuss this matter. We are arguing about military law, a subject matter area in which we have no expertise. Amazingly you argue that the military legal system, filled with military legal experts has utterly abandoned the rule of law and our ideals of justice. I'm not a civil lawyer either, but might that not be a claim of gross negligence or malfeasance? I'm sorry, but you haven't got the goods to back that up. "


Paul Growder, you just said, "And you completely fail to understand my point, viz.: if the current use of military force can not be justified either legally in our constitutional understanding of the term "war" or morally in our understanding of the concept of a just war, then the "rules of war" are not relevant."

However, previously, you said,

"here's the thing. I don't think we can justify the utter abandonment of the rule of law, our ideals of justice, etc. under the rubric of "military necessity" in this war. At least not in Iraq. No necessity justification can support the abandonment of the rule of law in Iraq, because the presense of our soldiers in Iraq itself is unnecessary!

We can make reasonable pragmatic compromises to protect the safety of our soldiers, but we have to remember that our leaders chose this war, our leaders sent the troops there, and our leaders can't use their own choices and their own international adventurism as a "necessity" excuse justifying their ignorance of the basic structures of justice and civil society. How can our government claim that their hands are forced into these extrajudicial detentions when it's their own damn joke non-war that caused it in the first place, at least in Iraq?"


Hmm, so on one hand you decry their lack of using the rule of law, and justice in Iraq, then on the other hand you state that since the war in Iraq was wrong (according to you) such rules of war don't apply.

You are wrong on two levels. First, you arguing that the war in Iraq was illegal. Well, even it was, it doesn't mean that the US shouldn't be following the proper rules in the aftermath. Second, you still have failed to show how the US is acting illegally according to the Geneva Conventions in regards to unlawful enemy combatants.

What you may be hung up on, is the unlawful enemy combatant idea. The conditions for determing that the insurgents in Iraq and Afghanistan are unlawful enemy combatants have been met. You have done nothing to show anything counter to that. Do that, and you have a starting argument, but not until then.

About the Barbary pirates, it might be a fitting analogy or it might not. However, if I were you, I wouldn't get too excited about it providing evidence for your case. In case you didn't know, pirates throughout history have been summarily executed much of the time when captured. You aren't advocating that now are you?



Here is a good quote from the article from Jonathon Turley,

"Congress did not actually declare war on the pirates," Turley wrote in a memo, "but 'authorized' the use of force against the regencies after our bribes and ransoms were having no effect. This may have been due to an appreciation that a declaration of war on such petty tyrants would have elevated their status. Accordingly, they were treated as pirates and, after a disgraceful period of accommodation, we hunted them down as pirates."


Hmm, we seem to have a great parallel, at least at a certain level. No declaration of war They authorized the use of force (should sound familiar) and then, "You assault pirates, you don't arrest pirates." according to Dave McIntyre, a former dean at the National War College.

You then go on to state,

"Following the utter destruction of all claims that the U.S. is involved in a "war" in the conventional sense, several people attempted to justify the acts of the U.S. military in holding people indefinitely without legal process as necessary to preserve the lives of our soldiers. This is not a legal argument as such, and I did not respond to it in legal terms. I responded to it in ethical terms, by pointing out that this justification only applies if the war itself is necessary."


Thats pretty nifty, you claim, "utter destruction of all claims that the U.S. is involved in a "war" in the conventional sense." I'm not sure if others did, but I sure didn't. I would really be surprised if anyone argued that we are in a "convientional war". I thought the whole point was that it wasn't? That this war represents something rather different than WW2 etc..

However, this does not mean that we don't have protocols for dealing with it. just because it is unconviential doesn't mean we don't have a way to deal with it. The unlawful enemy combatant protocol was created for provide a legal framework for dealing with such situations. The framers of the Geneva protocols knew that the "normal rules of war" or POW status may not be appropriate for all the enemies that might be faced in the future, hence, the unlawful combatant status.

You then said,

"...several people attempted to justify the acts of the U.S. military in holding people indefinitely without legal process as necessary to preserve the lives of our soldiers. This is not a legal argument as such, and I did not respond to it in legal terms. I responded to it in ethical terms, by pointing out that this justification only applies if the war itself is necessary."

Ahh yes, very interesting. That point does hinge on whether you considered the war to be legal or not. However, in your case, it is rather troubling that your conclusion that is not a legal war, would force you to conclude that we cannot protect our soldiers. But, yes, that would be the conclusion of your line or argument. So, naturally, you would say to withdraw the troops to protect them. Fair enough from your point of view.

You then said,

"Your accusation of a bait-and-switch is incoherent. I have never set forth the argument that we should follow any "rules of war," I have consistently denied that this constitutes a war in the sense that rules should be applied."


Okay, say that all you want. But just look at what you have said. You have tried to argue it both ways. You earlier decried our lack of following the rules of war, rule of law, justice, etc... in Iraq, then you argued in an earlier post,

"We can make reasonable pragmatic compromises to protect the safety of our soldiers, but we have to remember that our leaders chose this war, our leaders sent the troops there, and our leaders can't use their own choices and their own international adventurism as a "necessity" excuse justifying their ignorance of the basic structures of justice and civil society. How can our government claim that their hands are forced into these extrajudicial detentions when it's their own damn joke non-war that caused it in the first place, at least in Iraq?


For one, they aren't extrajudicial. They are following the protocol for unlawful enemy combatants. Second, you really don't think that the bolded part implies that you are arguing for them to follow certain legal rules?

As for your last argument, the proof is in the pudding. I can't find off hand leaked military documents showing specifically how such determinations for unlawful enemy combatants are done. There is this however, http://www.cfr.org/publication.php?id=5312

It says how such determinations are made.

In regards to the effectiveness of the military making such determinations. Let me put it this way. The military has detained several hundred thousand over the course of the past several years. However, we only have a few hundred detained at Gitmo, and I believe just several hundred more at other locations. So, out of the Hundreds of thousands detained at some point, only a few hundred are actually kept for any significant period of time. That right there shows the military can't be doing too bad of a job. Not proof, but some good evidence of it.

And I second Anonymous Reader when he said,

"Military Tribunals, for reasons that have already been noted, cannot be public information. Just understand that those combatants who actually reach the tribunal level have already passed through several layers of scrutiny from the capturing company to the CENTCOM/Pentagon level. There are too many people involved in the decision making process to imply that there is a conspiracy to detain (house, feed, etc) combatants for any reason under the sun.

Also, military lawyers are LAWYERS. I get the feeling that some people (not necessarily you) assume that the military is de facto unjust. So I just wanted to clear that up. Please understand that these military lawyers go through all the same educational processes that civilian lawyers go through with the addition of a short Military Justice School in order to become more familiarized with the UCMJ and laws of war, etc.; topics that civilian lawyers aren't required to learn"


I would only add that you seem to give the unlawful enemy combatants the benefit of the doubt rather than the military. Rather curious I think.

Signed,
Your most humble law student
7.8.2005 4:31pm
Humble Law Student:
sorry about the making much of the previous post a link. not sure how that happened.
7.8.2005 4:32pm
Humble Law Student:
Paul Gowder wrote,

"The role of our soldiers in Iraq right now is equivalent to a heavily-armed auxiliary extra-legal police force, not a war."


Hmm, how many US soldier died in the past several years in Iraq? Compared to how many police officers in this country? and might I add the US has several times the population of Iraq. I think you might find a rather staggering difference.

Also, last time I checked the gangs in NY, Chicago, LA, or Miami didn't use RPGs to shoot down helicopters or teh widespread use of bombs to kill tens and hundreds at a time.

Seriously, I can't help from laughing.
7.8.2005 4:39pm
Seamus (mail):
I fail to see why, for example, insurgents in Iraq can't be tried by Iraqi courts.

We could do that, but since the outcome of such trials would probably be conviction for murder, sedition, treason, etc., and execution, I think the insurgents themselves would prefer to held by the U.S. armed forces as prisoners. That way, there's at least some chance they'll end up alive. (This was the case with the Viet Cong in South Vietnam, too. The government of South Vietnam would have had them executed as traitors and murderers; we were doing them a favor by just holding them as prisoners.)

The analogy to the Barbary Pirates is perhaps the best equivalent that I've seen in this thread -- although I'm given to understand that there was some state involvement in that piracy. If anyone has any information as to the actual legal status of anyone captured in accordance with the Navy's destruction of the Barbary Pirates -- like whether or not they were tried -- it would be useful.


There was more than "some" state involvement: we were at war (in a real, not just a metaphoric, sense) against the dey of Algiers, the bey of Tunis, and the bey of Tripoli, and the wars with the Barbary states were ended by treaties with their rulers. According to Wikipedia, during the Second Barbary War, our forces took "hundreds of prisoners" in an attack on Algiers, and used their capture to extract a treaty from the dey. I don't think the precedent of the Barbary pirates is a very good analogy with our present conflict. No one is talking about concluding a treaty with al-Qaeda. I think a better analogy (if people don't want to look to the Indian wars, as I suggested in a post yesterday) would be our treatment of those who participated in Pancho Villa's raid on Columbus, New Mexico (the last time before 9/11 in which the continental United States was attacked by non-state terrorists). General Pershing's forces never caught Villa himself, but they caught others who had participated in the raid, and he had them sent back to New Mexico to be put on trial for murder in state court. Some were executed, and others received prison terms.
7.8.2005 4:41pm
Humble Law Student:
Anonymous Reader wrote,

"I feel that this is an extremely difficult and complex situation. I don't think it would be morally acceptable to "remove" an American's citizen's rights, however, this isn't so cut and dry (from my non-lawyer) point of view. I guess the best way for me to explore this issue is through an example. What would happen if we were to have captured the 9/11 terrorists who illegally entered the US right before they took over those planes? For the sake of the argument, let's say that the people on board were able to subdue them with no loss of life; however, it was extremely clear what their intentions were vis-a-vis the WTC towers. Would those terrorists be tried in accordance to civil law or be declared illegal combatants?

Given that we are at war, would these people be treated as spies or saboteurs in the Geneva Convention sense? Or just be arrested and tried as a civilian attempting murder? I think that is the fundamental question underlying Padilla's detention. Not necessarily that he's a citizen or not. What if he had diplomatic immunity? I don't know the answers to these questions, but I guess that's why it's not an easy nut to crack."


I think it would have hinged on whether we knew that Al-Qaeda's attempt was an isolated incident or just the culmination of several years of attacks, i.e. the Cole etc...

If that had been the first we had heard of Al-Qaeda, then I'm not sure what would have happened. I'm hoping for others to opine on what exactly the relevant conditions would have been.
7.8.2005 4:46pm
Paul Gowder (mail):
Seamus: an excellent point re: the Pancho Villa raid, and one that supports my "try 'em" position. The republic presumably didn't collapse when Pancho Villa's raiders were tried.

"Humble Law Student" I think you're deliberately mis-reading my point, which is that because this is not a war, the rules of civilian life should apply, not the rules of war. The rules of civilian life require things like trials for murderers.

You're reading my claim that the laws of war don't apply as a claim that no laws apply, and then inferring a contradiction with my insistence that some semblance of civilian law apply. Wince understands what I'm saying (although (s)he appears to disagree), so I can't be that unclear.

I know this is hard for those indoctrinated into the Inner Party to understand, but there are other rules beyond those that pertain to the conduct of soldiers.

As for your linked document, I don't even need to go into Quirin to defeat it: the language quoted does it for me. "Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." (emphasis mine)

Again: There. Is. No. Enemy. Government. Or. Military. People. Who. Engage. In. Political. Murder. Without. Being. Connected. With. A. Foreign. State. Are. Not. Combatants. They. Are. Criminals. And. Must. Be. Treated. As. Such. Which. Includes. Getting. Due. Process. Of. Law. Civillian. Law. Not. The. Law. Of. War.


"Unlawful combatants" are associated with enemy nations. That's why the indictment ("specification") at issue in Quirin specifically charged them as such: "being enemies of the United States and acting for ... the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing ... hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States"
7.8.2005 5:02pm
Humble Law Student:
Anonymous Reader#2
wrote, "In hard cases like this, is there any compelling reason to not default to the court system with the most protections (here I'm thinking the civilian one). The only reason I can think of is the existence of illegally gathered evidence. Are our regular courts incapable of dealing with this in a safe and proper manner? And if that is the case, does that show an advantage of the military system, or a weakness of the civilian system?"

For a US citizen, I am inclined to agree that he/she should receive the greatest civil protections. However, it may be the case, that some sort of different court might need to be established. I'm not an expert on the rules of evidence for US federal courts as of yet. So, it would be interesting to hear if there are any particulars hurdles in relation to evidence that would keep the government from wanting to have a trial in a civil court.

Note: Please no sarcastic replies arguing that the administrations doesn't want to use civil courts because they have no evidence in the first place.
7.8.2005 5:04pm
Humble Law Student:
Paul Growder,

You said, "because this is not a war, the rules of civilian life should apply, not the rules of war. The rules of civilian life require things like trials for murderers." Hmmm, by that argument how would you argue about soldiers captured in the Vietnam War, or Korea, Grenada, etc... There was never an official declaration of war in those cases. So, the POWs weren't actually POWs? Or would you circumvent this by arguing that a declaration of war is not needed to provide POW status to such individuals.

Secondly, and more importantly, when you say, "because this is not a war, the rules of civilian life should apply, not the rules of war" that is a completely false dilemma It is not either/or. There is a third option. That option is of unlawful enemy combatants which is the US has been dutifully following (on the whole). That is the basic logical fallacy in your argument. This point is key, and it unravels your whole argument.

Just because it is not a war, it does not necessarily follow that the rules of civilan life have to apply. They could theoretically, but as shown, there is a third option which fits best, unlawful enemy combatant.

Btw, forgive my ignorance, but my young mind is not familiar with your "Inner Party" reference.

You then further state,

"As for your linked document, I don't even need to go into Quirin to defeat it: the language quoted does it for me. "Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."

Irrelevant. Quirin was about deciding the fate of individuals acting on the behalf of Germany in the US during WW2. You had a recognizable enemy, with a command structure, and recognized goverment etc... That case is substantially distinct from our current issue and is not a workable comparison. Of course, the court said that they can be tried as unlawful enemy combatants. But once again, irrelevant. If anything, it shows that even individuals who are citizens of others countries that we are at war with can fall under unlawful enemy combatant designations in certain situations.

This does nothing to support your arguement that an enemy without a recognizable government supporting him/her and a chain of command etc... cannot be held as an unlawful enemy combatant. If anything, it shows there is a wide range of individuals that can be held as such.

Once again, you keep assuming it is an either/or situation. However, the unlawful enemy combatant designation fufills the middle ground (in a sense) between lawful combatant and trying someone in civil courts. Once you get that distinction, everything will make much more sense to you.
7.8.2005 5:37pm
Seamus (mail):
"Unlawful combatants" are associated with enemy nations.

Not necessarily. Neither Iraq not Afghanistan is now an "enemy nation," but there are plenty of unlawful combatants attacking our forces there. While they are indeed criminals whom we could simply turn over to the Iraqi or Afghan government for trial as traitors, murderers, sabateurs, or seditionists, I have no confidence in the fairness of any such trial. We should neither hold them indefinitely nor set them free, however. Since they've been attacking our forces, we ourselves ought to put them on trial by court-martial or whatever other military tribunal might be appropriate, and if they are convicted to execute them--preferably with as much publicity as possible, pour encourager les autres. This would send the message that we are serious about the laws of war, and that if you want to fight us, you'd better do so by the rules, not sneaking around in civilian clothes, pretending to be part of the population we're there to protect. Oh, sure, we can interrogate them before executing them, if we like, and if that's likely to yield intelligence that will enable us to prevent future attacks. And if there are some captives who we know guilty of attacks on us, but for some reason we don't want to execute, then we should sentence them to appropriately long terms of imprisonment--but be prepared to release them at the end of their sentences, and not to hold them on the ground that the "global war against terror" isn't over in 2025.
7.8.2005 5:49pm
Wince and Nod (mail) (www):
Paul,

It. Seldom. Enhances. An. Argument. To. Speak. Slowly. And. Clearly. It. Generally. Implies. Your. Opponents. Are. Stupid. Which. Seldom. Helps.

And, done like that, it is a pain to read.

Also, the war on (Islamic fascist) terror is a war. One technical term, now that major combat operations is over, is low-intesity conflict. It's a war very similar to the war in Columbia against FARC, the war in Sri Lanka against the Tamil Tigers, the war in Nepal against the Maoists. FARC, the Tigers (who invented the suicide bomber) and the Maoists all kidnap people, kill civilians and use the same tactics we face in Iraq and Afghanistan. FARC, the Tigers (who invented the suicide bomber), the Maoists and Al Quaeda all have short term goals and long term goals. The Maoists want to take over Nepal in the short term and the world in the long term. Al Quaeda wants to take over Afghanistan (again) in the short term, drive Israel and other Western powers out of the Middle East in the middle term and take over the world in the long term. You can get good reporting on all these wars on Strategy Page. That page was founded by Jim Dunnigan, who is clearly a fan of the military. Even so, he wrote a book, How to Make Peace. It was a survey of two hundred years of war, with an emphasis on it's causes and prevention. Maybe Jim hates wars because too many of his military friends die in them. A favorite of mine since back when I was a liberal.

And please note: neither the Baathists in Iraq nor the Taliban in Afghanistan surrendered. Both vowed to fight on. They are. It's still a war. The war is not over.

You can have a little war now, with the hope of reducing war, democide (mass-murder) and famine by planting a liberal democracy in the Middle East, or you can have a big war later. I like the little war with the smaller death toll. I've got fantastic ethical and moral reasons to support the war in Iraq, and I've had them since before that war started, and my reasons have only gotten better. I know you have ethical and moral qualms about Iraq. Good. We need people, like you and me, who have
moral qualms about war. (As a little aside, most people in the military, including most lawyers, have moral qualms about war, which is good too. It goes all the way to the top. See the Powell doctrine.) It's people like us, possessing the natural human antipathy toward war, who are the reason that more liberal democracies means less war, democide and famine.

The site I linked to is by a man who has spent his carreer studying democide and who has some very good ideas about how to stop it. Check him out.

Yours,
Wince
7.8.2005 6:00pm
Paul Gowder (mail):
Humbleito: the lawful combatant/unlawful combatant distinction was formed in the context of wars between nation-states, to distinguish between uniformed soldiers on the front and irregulars/spies/saboteurs. It has no meaning outside of the context of wars between nation-states. Until now, nobody has ever tried to make use of it outside of the context of wars between nation-states, despite the fact that people blow stuff up all the time. The unlawful combatant distinction is incoherent where there's no war.

The other wars you list, while not declared, were against nation-states, North Vietnam, North Korea, and Grenada, respectively. That's all the difference. A war is a conflict between the military forces of two or more sovereigns. All other state uses of force are law enforcement.

The dichotomy is not false. It's based on the dichotomy between STATES and PEOPLE. When STATES do something bad, it's called an act of war, and we send their army to discipline them. When PEOPLE do something bad, it's called a crime, and we send the police to arrest them and give them a trial. 9/11 was a crime. Those who plotted it are entitled to criminal process. We don't prosecute enemy armies because they, as arms of the sovereign, aren't subject to our criminal jurisdiction.

The SOVEREIGN in charge of Afghanistan (the Taliban) at the time refused to turn over the criminals. That justified a WAR (against AFGHANISTAN, NOT IRAQ) against them. We defeated the Afghan government. Now there is a new Afghan government. IT is our friend. We're not at war with it anymore. The SOVEREIGN in charge of Iraq had bad breath, or insulted Laura Bush, or something. That failed to justify a WAR against him, but we waged one anyway. We defeated him. Now there's a new sovereign in Iraq. It is our friend. We're not at war with it anymore.

Think of it this way. Suppose a naval patrol picks up someone running drugs to the U.S. -- under the rubric of the "war on drugs," could this navy ship hold the drug runners, indefinitely, without trial? Nope. Now suppose they pick up someone running guns to the U.S. for drug dealers. Could they hold them indefinitely, without trial? Nope. How about if they're running guns to the U.S. for terrorists, instead of drug dealers? Is it somehow different?
7.8.2005 6:32pm
Seamus (mail):
"The other wars you list, while not declared, were against nation-states, North Vietnam, North Korea, and Grenada, respectively."

North Korea, yes, but we weren't fighting North Vietnam until after the Gulf of Tonkin incident (though we were helping the South Vietnamese fight their home-grown-but-Northern-supported Viet Cong insurgency), and we weren't at war with Grenada at all. We went in there to rescue American citizens from civil disorder, and we had the implicit support of the head of state, Governor-General The Honourable Sir Paul Scoon, who in the chaotic conditions that prevailed after the assassination of Maurice Bishop was about the only thing on the island that resembled a government.
7.8.2005 6:39pm
Paul Gowder (mail):
Wince: I respect the military term "low intensity conflict," but I don't see how it necessary has either a legal or a moral meaning in terms of placing something in a category that permits the state subject to such conflict to abandon the civil legal process.
7.8.2005 6:42pm
Jacob Lister (mail):
Even if a person is held according to the law of war as opposed to criminal law, even if a person is held under the Geneva Conventions as an enemy combatant rather than a prisoner of war, that person still has some fundamental protections accorded to them.

Our actions in Iraq and Afghanistan count as "war" in a traditional sense, and thus all participants (and civilians) fall under the Geneva Conventions and Protocols. Taliban and Iraqi soldiers should be accorded prisoner of war status, assuming they are following various laws of war, such as carrying arms openly. Other individuals, such as Al Qaeda members, still get some protections. First Protocol to the Geneva Convention (1977) states in Art. 45:

3. Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.


To qualify as a prisoner of war, a person has to meet requirements like openly carrying arms, belonging to armed forces or any other group under the command of a party to a conflict, being subject to an internal discipline system, and so on. Al Qaeda members probably do not meet these requirements, but still get the lesser protections indicated in Art. 75:

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence; (b) no one shall be convicted of an offence except on the basis of individual penal responsibility; (c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) anyone charged with an offence is presumed innocent until proved guilty according to law; (e) anyone charged with an offence shall have the right to be tried in his presence; (f) no one shall be compelled to testify against himself or to confess guilt; (g) anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised.


With active combat still occurring in both Iraq and Afghanistan, it seems like the war conditions for holding these people still exist, thus we are allowed to do it for now. But in my mind, holding people forever isn't the "minimum delay possible" in paragraph 3. And if they are charged with penal offenses (in order to hold them forever), they get the protections of paragraph 4 in a trial. Maybe one could make a case why military tribunals don't meet these protections, but I don't think they inherently fail.

If the US is going to treat this as an actual "war," even a war against a group that cannot function as a nation-state, the Geneva Conventions should still apply because they bind the states party to the conventions in war-like situations, rather than applying only in wars where everybody agrees to follow them. If Congress' authorization to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. . ." is a declaration of war, then Geneva should apply (though I'll leave aside the question of whether declaring war on Al Qaeda inherently gives its members the right to prisoner of war status).
7.8.2005 7:13pm
Wince and Nod (mail) (www):
Paul,

First, Congress did declare war, by passing a resolution authorizing it, on both Afghanistan and Iraq.

Second, we may have defeated the former governments of Iraq and Afghanistan in your opinion and my opinion, but not in the opinion of the former governments of Iraq and Afghanistan. They said they would fight on, and they are still fighting. If we follow your strategy and pull out, they may still win.

When the Baathists surrender in Iraq - which they can still do - and the Taliban surrenders in Afghanistan - which they can still do - I think it would be perfectly reasonable to declare those wars - which were against national governments - over. If those wars appear to have simply wound down, for example by bringing the Taliban and the Baathists back into the political process through the culturally accepted tribal methods, we can also declare the war over. (Which we will, if that's the case, for our own local political reasons. I'd be for it. I vote.) Then we can repatriate those combatants, lawful or not, whom we detain and whom we don't prosecute. These wars are indefinite, like all wars, but they aren't forever.

Given the death toll in both Iraq and Afghanistan, most people still think they are wars by that definition, as well.

Myself, I am in favor of trying the unlawful combatants for war crimes in military tribunals - like the International Military Tribunal at Nuremburg and the International Military Tribunal for the Far East in Tokyo. Futhermore, I am in favor of waiting until after the Iraq and Afghan conflicts are over, so the trials do not have to be held in secret.

Once those wars are over, and provided we aren't fighting Syria or Iran, I don't think we will have any reason to treat the war on Islamic Fascism (terror) like a war. The terrorists in Great Britain will be tried in their civilian courts. The terrorists in Saudi Arabia will be tried in their civilian courts. And the terrorists here will be tried in our civilian courts.

Yours,
Wince
7.8.2005 7:21pm
aodhan h (mail):
Wow, I'm amazed by the apparent ignorance of the majority of the posters. There appear to be two basic assumptions that dominate these comments:

- no one sent to Gitmo recieves any kind of status review to determine whether they deserve either unlawful combatant or release

- no one has ever been released from Gitmo

The hoopla over the past couple of weeks has brought to light that the all prisoners get reviewed. Annually in fact. Roughly 75% of all total prisoner have been released and deported to their home country. Remember any salacious tales coming from Britain or Russia lately from former prisoners?

You can debate the finer points of what constitutes a war, a combatant, an unlawful combatant, etc, but these are real facts.

It is difficult take seriously any view that doesn't reflect verifiable facts that are reported through normal channels.

Without spending fifteen seconds with Google, here's one report. If you question its veracity, check with the Red Cross, CNN, or something. http://www.defenselink.mil/news/Jul2005/20050708_2009.html
7.8.2005 7:40pm
Jim Rhoads (mail):
Paul's arguments turn on whether we are at war. The last time this nation was "officially" at war was between 1941 and 1945. That war ended when I was five years old.

Since that time, nearly 100,000 of our armed forces have been lost in battle (i.e. armed conflict) without a formal declaration of war.

From the time I was 10 until I was 13, fathers and brothers of my friends served in Korea. Some died. The mechanism by which they were sent was not an official Declaration of War by Congress. It was initiated, authorized and carried out by President Truman as a "police action" in the name of the United Nations without a joint resolution of Congress. Congress later authorized funds to carry on the conflict, however. Was this a "war"? Yes, and over 29,000 of our troops died.

Then when I was an Army Reserve Officer, not yet on active duty, President Kennedy began sending army colleagues to Vietnam again without any Congressional approval. President Johnson continued that activity from his inauguration in November 1963 until the following August when Congress passed the bare bones Gulf of Tonkin Joint Resolution. Many of my contemporaries served in this conflict and some never returned home. All were changed by their service. I served on Active Duty from 1966 until 1970, with 1967-1968 being spent in Central Vietnam. This state of affairs lasted until 1975. Was this a war? Yes, and over 55,000 of our troops died.

Then there were the matters in Africa, Kosovo and Kuwait. Troops served. They were shot at. Declared Wars? No. Wars? Yes, I am afraid so.

Paul's saying that we are not at war doesn't make it fact. I believe when a group of organized individuals attacks our nation with the expressed intent of destroying our nationhood, our freedom of expression and religion and all of the rest of our heritage that we hold dear, they are at war with us. Since 2001, the reality is we are at war. No hairsplitting legalisms or ostrichism will convince me otherwise.
7.8.2005 7:43pm
Jim Rhoads (mail):
Jacob:

I believe you will find that the United States has not ratified the first protocol of the Geneva Convention of 1977. Great Britain has ratified that protocol.

Until that treaty has been ratified, the United States is not bound by it.
7.8.2005 7:50pm
Humble Law Student:
Jim Rhoads wrote, "I believe you will find that the United States has not ratified the first protocol of the Geneva Convention of 1977. Great Britain has ratified that protocol.

Until that treaty has been ratified, the United States is not bound by it."

Thats a good point. I had completely forgotten about that.
7.8.2005 8:10pm
Paul Gowder (mail):
aodhan h -- I referenced much the same information before. The question, however, is not limited to gitmo. there are a LOT of prisoners in American hands who are not at gitmo.

Wince: to the extent that it is practically possible for the baathists and the taliban to surrender, you have a point -- but I think it's still a stretch. When the ruler of the enemy is captured in one case (Iraq) and the military forces of the enemy are utterly destroyed in both cases, and all government authority is vested in a party placed into power by the invader in both cases -- how much more conquest do we really need before we determine that the war, qua war, is over? We're putting Saddam Hussein, the absolute dictator of Iraq, on trial, for heaven's sakes. (Why does HE get a trial?) Surely the war is over when the enemy sovereign is on trial in his own territory.

Your position re: trying the "unlawful combatants" as war criminals in international tribunals in open hearings, however, is entirely reasonable. It doesn't accord with my (admittedly formalist) conception of whether we're in a war or not, but it at least amounts to some kind of open and verifiable process for the captured people. Under your conditions, which at least propose some kind of formal "end" to the particular putative "wars" in Afghanistan and Iraq.

You have to realize, though, that you're taking a position that is much, much more friendly to the prisoners than Eugene Volokh is, because he proposes indefinite detention not until the end of some discrete "wars" in Iraq and Afghanistan, but until the end of this fantastical "war on terror," which will indeed never end. And that means neverending detention.

(Speaking of wars without end, by the way, the "inner party" reference, for whoever asked, was a reference to 1984, which this neverending war business is eerily reminiscent of, as many have noted.)
7.8.2005 8:56pm
Humble Law Student:
Paul Growder said,

"the lawful combatant/unlawful combatant distinction was formed in the context of wars between nation-states, to distinguish between uniformed soldiers on the front and irregulars/spies/saboteurs. It has no meaning outside of the context of wars between nation-states. Until now, nobody has ever tried to make use of it outside of the context of wars between nation-states, despite the fact that people blow stuff up all the time. The unlawful combatant distinction is incoherent where there's no war."



Here is the problem with your argument. Are you going argue that we shouldn't have afforded POW status to those captured in the Vietnam and Korean wars? or any other conflict that we have engaged in that didn't have a formal declaration of war? I think not. So, obviously your criteria for determining whether the Geneva convetions apply is a different than whether we have formally declared war or not.

Since your argument can't hinge on a formal declaration of war, it must be something else.

The key distinction is that the unlawful combatant category was designed to encapsulate groups that have to be fought that don't follow under the normal POW status. Yes, it is true that only nation-states can be bound signitories to the Geneva Convetions, but it doesn't mean that the Geneva conventions didn't provide a way for dealing with non-signatories, including states and non-state actors.

Here is a great explanation,

"Arguments have been advanced by some critics of President Bush's November 13 Military Order that the Geneva Convention III Relative to the Treatment of Prisoners of War effectively eliminated the category of "unlawful combatant," requiring that all individuals captured in arms be accorded the rights of lawful prisoners-of-war. This is simply untrue. In fact, the third Geneva Convention of 1949 specifically reaffirmed the distinction between "lawful" and "unlawful" combatants, and in no manner suggested that "unlawful" combatants were entitled to be treated as prisoners-of-war, or as civilian non-combatants."

From
Therein lies your fatal assumption. You falsly assume that the Geneva conventions only apply to state actors, but the unlawful combatant category was meant to include, spies and guerillas. Here is a good explanation,

"Guerilla warfare is said to exist where, after the capitulation of the main part of the armed forces, the surrender of the government and the occupation of its territory, the remnant of the defeated army or the inhabitants themselves continue hostilities by harassing the enemy with unorganised forces ordinarily not strong enough to meet the enemy in pitched battle. They are placed much in the same position as a spy. By the law of war it is lawful to use spies. Nevertheless, a spy when captured, may be shot because the belligerent has the right, by means of an effective deterrent punishment, to defend against the grave dangers of enemy spying. The principle therein involved applied to guerrillas who are not lawful belligerents. Just as the spy may act lawfully for his country and at the same time be a war criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such. In no other way can an army guard and protect itself from the gadfly tactics of such armed resistance. And, on the other hand, members of such resistance forces must accept the increased risks involved in this mode of fighting. Such forces are technically not lawful belligerents and are not entitled to protection as prisoners of war when captured."


That is from The Hostages Trial: Trial of Wilhelm List and Others (Case No. 47), 8 L.Rpts. of Trials of War Criminals 34, 57 (U.N. War Crimes Comm. 1948) (quoting U.S. Military Trib., Nuremberg 8th July, 1947, to 19th February, 1948) (from the previous article)

You seem to get hung up on the idea that the Geneva conventions only provide for dealing with armies of recongnized states. You are wrong!

Once you admit this fact, your whole line of argumentation falls apart.

I can go on, but is it really necessary?
7.8.2005 9:13pm
Humble Law Student:
Hmm, I cant get the link to work properly I hope this works.
7.8.2005 9:13pm
Humble Law Student:
Btw, I realize the case I quote in my previous quote occured before the Geneva Convention of 1949, but it was included to show the thinking of the time and is relevant.
7.8.2005 9:21pm
grahamc (mail):
Humble Law Student wrote in reply to my previous post:

such rights fall under certain restrictions when we act or behave in certain ways.... Your argument is laughable on its face. It fails the prima facie test if anything.

Ok, I'll spell it out further. Obviously rights get restricted by subsequent legislation, including that which separates US citizens from the rest of the world. But if such rights are self-evident and apply to all men, why is it so easy to exclude foreigners and apply separate rules to them.

To put it even more simply, why are they stripped of all rights and routinely denied access to justice.

Or even more simply, why not produce the evidence against so-called enemy combatants, if it is so compelling as to require indefinite detention. If there is evidence that passes justice tests, then by all means lock them up. If there is doubt they may return to combatant status if freed, then lock them up, but produce the evidence. Arbitrary detention allows tyrants to flourish, whether petty tyrants in the form of untrained rednecks who didn't like the look of an arab walking past, or nation state tyrants.

This is a simple test of natural justice - produce the evidence and let people see that justice is being done. If there are national security issues, then get the cases reviewed by independent people with high security clearances. I believe in the US these people are called judges, and the reviews are carried out in places called courts.
7.8.2005 10:01pm
Humble Law Student:
Grahamc wrote,

"Ok, I'll spell it out further. Obviously rights get restricted by subsequent legislation, including that which separates US citizens from the rest of the world. But if such rights are self-evident and apply to all men, why is it so easy to exclude foreigners and apply separate rules to them."


We as American agree as a whole with certain values or the natural rights of man. Your argument is somewhat tangential to the issue at hand, because while we all value life, liberty, and the pursuit of happiness etc... Those rights must be balanced with other concerns. Namely, (to state the extreme) if one is dead or oppresed, one is not able to enjoy these rights. That is why we have a government. Its an attempt to secure these rights for our citizens, specifically. Of course, this in no way means we shouldn't afford these rights, broadly speaking to others who aren't citizens.

Now, as far as the application and securing of these rights, there are many ways to go about it. We have a system of laws to protect these rights for our citizens. However, do not conflate the laws themselves with the actual rights. There are many ways of securing these rights that can be just as correct as some other method (within reason). So, just because we have one standard for our citizen's and a different standard for non-citizens doesn't necessarily mean there is hypocrisy present, as long as the general aim of both systems is toward a recognition and application of our deeply held beliefs.

In our country, our citizenry is relatively stable and complacent. As such, we afford even greater legal protections to ensure the security of their freedoms. Arguably, the majority of our citizens don't seek to kill as many Americans as possible or plot the downfall of our government. However, with those we encounter around the world, such is not the case. As such, we apply a different standard to protect our citizenry from them. We apply a different standard because the foreigners in question represent a threat rather unique from one we would face from inside the US (granted, similar threats can occur, but the number of terrorists in the world is assumed to be concentrated outside of our borders and in particular states/areas).

However, lets look at the Civil War. In the Civil War, Lincoln suspended many Constitutional rights in the name of preserving the Union. People can argue whether it was right for him to do so, but as America has always done, we create systems to deal with the situation at hand. Obviously, the America of today doesn't face the same internal threats that the America of Lincoln's time did, as such, the Constitutional restrictions he enforced are not relevant or appropriate today for our citizenry.

However, when looking abroad, the threat we face is much different from what we have faced in the past. As such, having a seperate system from our domestic judicial system is not hypocritical. Its a recongition that different situations require the use of different tactics to deal with them. While, we would probably like to have enemies with whom we didn't have to try to kill or incarcerate to keep them from killing us, the fact is that our enemies don't place nice. They want to kill us, every last one of us. As such, we have a different legal system in place for dealing with them.

It all rather makes sense put that way.
7.8.2005 10:25pm
Humble Law Student:
To paraphrase the Justice Jackson, the Constitution is not a suicide pact. (and no, I don't mean that as an argument for overturning major civil liberties, etc... Just read that in line with my previous post, and you should do fine.)
7.8.2005 10:32pm
Challenge:
"You have to realize, though, that you're taking a position that is much, much more friendly to the prisoners than Eugene Volokh is, because he proposes indefinite detention not until the end of some discrete "wars" in Iraq and Afghanistan, but until the end of this fantastical "war on terror," which will indeed never end. And that means neverending detention."

The real concern is with the false positives which RWS mentioned early in the thread.

Why one should be concerned that terrorists may be detained for the rest of their lives is a mystery to me. After all, when we are talking about REAL terrorists, why should we feel sorry for a position they placed themselves in? So the "war on terror" may be go along for several generations. So what?

Now, if one is concerned we are detaining individuals that are not really terrorists or unlawful combatants, then that is a different issue.
7.9.2005 12:23am
Humble Law Student:
Challenge, how are you addressing? Me or someone else?
7.9.2005 1:43am
Humble Law Student:
who*
7.9.2005 1:43am
grahamc (mail):
Humble Law Student said:

"As such, having a seperate system from our domestic judicial system is not hypocritical. Its a recongition that different situations require the use of different tactics to deal with them.... They want to kill us, every last one of us

Half of the US wants to kill the other half and often succeeds, but it is managed ok by the justice system, or at least as well as it is possible to handle these things. Sure, there are threats, there always are. Sweeping generalisations like "different situations require" are an absurd euphemism for "we find it inconvenient, and we can't be bothered thinking it through or doing it right".

You have to keep in mind that innocent US citizens get included in the set of people you have to worry about when the justice system is suspended or not allowed to apply. When you hide the application of justice then you allow petty tyrants free rein. And quite often you allow incompetents to dig you all into a deeper hole, which cannot be seen becuase you have carefully suspended any oversight.

And by the way, you missed my argument by a mile. It is an effective debating tactic to dissemble by responding to arguments that were not raised, but it will not shed any light on the law or the just application of it, which is what I thought this blog was about.

Not much point me continuing this thread. I have made my contribution, and others can judge whether it is any use. By all means have the last word, though...
7.9.2005 1:46am
Paul Gowder (mail):
Humblito: not only is the source you cite before the Geneva conventions, but it's of only highly questionable relevance to U.S. law. After all, even if we assume there is a war, the status of unlawful combatants under U.S. law would be controlled by Ex parte Quirin, 317 U.S. 1 (1942), not by the Nuremberg tribunals. Quirin, by providing for the minimal due process right to a military tribunal, is directly contrary to the authority you quote, which seems to suggest the acceptability of summary executions for e.g. spies. "a spy when captured, may be shot."

(I also note that the tribunal at issue in Quirin occurred during the war.)

In fact, this makes complete sense if we simply and correctly conflate the concept of "unlawful combatant" with the concept of "criminal." Mauraders who carry guns and terrorize the populace without respecting the laws of war indeed do not get the protections of P.O.W. status but they do get the protections of criminal status. I don't understand how this is so difficult to understand. You can't just create this class below both POWs AND criminals for your own convenience.

Also, the claim by that federalist society propaganda that Geneva III enshrined the distinction between lawful and unlawful combatants is simply untrue. That claim, which is based on red cross commentaries, is contradicted by the plain text of the convention. First of all, "prisoners of war" in such text explicitly includes "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." (Art. 4(6)). That includes all the irregulars who walk the streets with machine guns, albeit not concealed bombers.

Moreover, it's absurd to suggest that Geneva III specifically maintained the distinction between "unlawful combatants" and otherwise when the convention never uses the term.

This is all moot of course, however, because the Geneva convention definitions only apply to "occupied territories." As you may recall, Iraq recently held supposedly free elections, it is supposedly self-governing, and the U.S. troops are supposedly there at the sufferance of the Iraqi government. Hence Iraq is not an occupied territory, and we're back to the original point, viz.: it's not a war. If George W. Bush's repeated claims about the sovereignty of the Iraqi government are true, the insurgents are not fighting the U.S. as an occupying power. They are fighting the Iraqi government as rebels.

Indeed, the Geneva Conventions, specifically III upon which you rely, note their applicability only when there's a state of war between two contracting parties.

"Art. 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." (emphasis mine)

Moreover, the court in Quirin specifically distinguished Milligan on the grounds that "Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war."

I'm not alone in this reading of the relevant conventions. See Joan Fitzpatrick, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 A.J.I.L. 345 (2002) (discussing implausibility of shoehorning either a war on terrorism, a war on al qaeda or a war in Afghanistan into the kinds of war that are contemplated by the Geneva conventions, and noting that "The interim government has exclusive law enforcement authority in Afghanistan. The crime control priorities of the United States may be in serious tension with the nation-building priorities of the Afghan government.")

In terms of the harms to the national interest from using military tribunals, see Harold Hongju Koh, The Case Against Military Commissions, 96 A.J.I.L. 337 (2002).

Challenge: how are we to know which they are in a socially legitimate fashion unless we try them???
7.9.2005 2:06am
Humble Law Student:
Grahamc,

First to addres what you wrote last,

"And by the way, you missed my argument by a mile. It is an effective debating tactic to dissemble by responding to arguments that were not raised, but it will not shed any light on the law or the just application of it, which is what I thought this blog was about.

Not much point me continuing this thread. I have made my contribution, and others can judge whether it is any use. By all means have the last word, though..."

Wow, please contain your self-righteous indignation. I honestly thought I understood your argument correctly. I did not mean to be disingenuous. From your earlier post, I understood your argument to be , "Why (assuming the rights we hold dear as American to be universal) do we not apply them equally and in the same manner to foreigners as we do to our own citizens?" If I err, please correct me.

So, I proceeded to lay out an argument explaining why it isn't hypocritical to have one system of laws that deals with our citizens and another that deals with foreigners, particulary foreigners detained during a time and in a region that is known to contain many individuals hostile to us and our interests.

Please by all means, explain my error. If I didn't do your argument full justice, I sincerely want you to help me understand it better.

Earlier in the post you wrote,

"Half of the US wants to kill the other half and often succeeds, but it is managed ok by the justice system, or at least as well as it is possible to handle these things. Sure, there are threats, there always are. Sweeping generalisations like "different situations require" are an absurd euphemism for "we find it inconvenient, and we can't be bothered thinking it through or doing it right".


What is that supposed to mean? Half of the US wants to kill the other half? and they often succeed? Where do you
live?

Different situations isn't an absurd euphemism. I specifically state that I don't think different situations should necessitate a complete dismantling of our civil rights structure. But even within the US, you have a constant ebb and flow of rights throughout our history. Typically, in times of war, the government restricts our rights somewhat, and in peace they are somewhat loosened. To deny that, is to deny basic history.

I by no means said that this gives the government the authority to do it at its every whim. You just wish I said that, and you attempting to make it so, my true words nonwithstanding.

However, I used the example of our government, just as an example. My main point was in regards to our laws and treatment of our own citizens vs. the system we have in place for dealing with those captured in Iraq and Afghanistan etc...

You further wrote,

"You have to keep in mind that innocent US citizens get included in the set of people you have to worry about when the justice system is suspended or not allowed to apply. When you hide the application of justice then you allow petty tyrants free rein. And quite often you allow incompetents to dig you all into a deeper hole, which cannot be seen becuase you have carefully suspended any oversight."

So where exactly did I advocate the suspension of our whole justice system? I showed from historical evidence the ebb and flow of the protections we receive from our governemnt. If you are referring to US citizens that have been detained under the status of unlawful combatants, then I am right there with you in worrying. If you read my discussions with Anonymous and Anonymous#2 you will see me express just such concerns. We can discuss Padilla, Lindh, etc.. However, that is a rather different discussion than from what we were covering. (related but not quite the same in my opinion.)

I have tried to represent your arguments faithfully. Please accept my apologies if I have been untrue to your arguments. (and explain where I erred, please)
7.9.2005 3:24am
Jacob Lister (mail):
Jim Rhoads wrote, "I believe you will find that the United States has not ratified the first protocol of the Geneva Convention of 1977. Great Britain has ratified that protocol.

Until that treaty has been ratified, the United States is not bound by it."

That's a good point. I had completely forgotten about that too.

But even so, the Geneva Conventions and Protocols are widely accepted as international norms. Deviating greatly from the Conventions by summary execution or infinite detention without due process, would hurt us in the international realm, not to mention cause dissatisfaction at home.

The 1907 Hague Convention (which the US ratified in 1909) gives spies the basic protection of a trial before they are punished (ie: shot).

I suspect that even without the Geneva Conventions, the Universal Declaration of Human Rights of 1948 applies (though like so much of international law, it is non-binding). In 1970, the UN General Assembly unanimously adopted Res. 2675, stating that "1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict." And the UDHR, in Bill of Rights-like fashion, proscribes arbitrary arrest or detention, guarantees a fair hearing and public trial, and so on. International law includes various terrorist offenses such as terrorist bombings, hijacking aircraft, taking hostages, etc. as criminal offenses, to which the US is a party of most conventions. So if the US holds detainees for having committed terrorist offenses, including through accomplice liability,
it seems compelled to treat them as criminals and try them in some form of tribunal.

For those practical reasons, the US, sooner or later, is going to have to do something with those detainees. It could try them semi-publicly as it did with Moussaoui, or release them, as it did with Hamdi.

Paul: The general distinction between international armed conflict and internal armed conflict has blurred, and at least some of the articles in the Geneva Conventions (those protecting civilians) apply to internal armed conflict as well. See Prosecutor v. Tadic, discussing the issue extensively starting at para. 82. Ironically, one of the reasons the court cites is Iraq's denial of its use of chemical weapons on the Kurds by stating that it would violate the Geneva Conventions.
7.9.2005 3:28am
Humble Law Student:
Paul Gowder wrote,

"Quirin, by providing for the minimal due process right to a military tribunal, is directly contrary to the authority you quote, which seems to suggest the acceptability of summary executions for e.g. spies. "a spy when captured, may be shot."


You got your facts wrong. The military tribunals were upheld as a proper venue in the face of the German spies complaints about not receiving civil trials (among other complaints). The military tribunals were orginally stipulated by an executive order, not by an order of the court. The court merely upheld the administration's position that they could conduct military tribunals per the executive order.

You further claim

"In fact, this makes complete sense if we simply and correctly conflate the concept of "unlawful combatant" with the concept of "criminal." Mauraders who carry guns and terrorize the populace without respecting the laws of war indeed do not get the protections of P.O.W. status but they do get the protections of criminal status. I don't understand how this is so difficult to understand. You can't just create this class below both POWs AND criminals for your own convenience. "


The court's decision counters your equating of unlawful combatants and criminals. The court decision time and time again rejected the plaintiffs argument that they should receive a civil trial. That was one of the main points of Quirin! They weren't common criminals or POWs. They were unlawful combatants outside the rules of war for POWS, but also they specifically were not common criminals.

I especially like when you say this, "You can't just create this class below both POWs AND criminals for your own convenience."

hehe, I didn't create it. Let me refer you to Quirin again, "By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants."

Oh oops, did the Quirin really just say that? Yes, why yes it did! Hmm unlawful combatants, doesn't that sound familiar?

It gets better in Quirin, "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."

Don't worry I'm not presumptuous enough to create my own category. I chose to let the SCOTUS decisions explain them for me. These "maruaders" specifically DO NO
criminal legal protections.


Oh God, how I want to continue. This really is quite fun. But it is 3:30 in the morning, and I have a bodybuilding thingy tomorrow, so I need my sleep. I can continue my dismantlement of your post tomorrow if you wish? or I can be nice and let you get away with the rest

:)
7.9.2005 4:24am
Humble Law Student:
Quick additional point as I am falling asleep. The intent of the military tribunals, according to Quirin, was not really for determing the status of the individuals, they were for applying punishments to unlawful combatants. They were for (quoting Quirin again), "Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful".

That is key. The point of the tribunals was to punish them for their acts. The US military can already hold and detain unlawful combatants just as POWS. However, the main difference is the unlawful combatants can be punished for their actions. Such is the function of the tribunals. (I had to say this so Gowder wouldn't jump to any more false conclusions ;)
7.9.2005 4:43am
Paul Gowder (mail):
Humble: you're right in the context of a war between enemy nations, and I misspoke as to the existence of that "unlawful combatants" class in thar context, at least pre-geneva, but if you'll re-read my last comment again ans answer the following question, you'll see why this doesn't apply to the current state of affairs: why did the Quirin court distinguish Ex Parte Milligan? It distinguished Milligan from Quirin exactly on the grounds I've been using: that Milligan didn't adhere to an enemy army!

Your second point about Quirin demonstrates that even the moderate position that the Supreme Court took in Quirin — one that is far less harsh on detainees than the system Eugene proposes and you seem to endorse — is logically and ethically wrong, and, to the extent that we're supposed to have a constitution in this country that protects foreigners on U.S. soil, legally wrong too. In your words: "The intent of the military tribunals, according to Quirin, was not really for determing the status of the individuals, they were for applying punishments to unlawful combatants." Problem is, that begs the question of how we determine that they're unlawful combatants. Assuming some modicum of due process applies to accused saboteurs, one would have to determine their unlawful combatant status by some permissible means before they were subjected to military tribunal process to determine their punishment. After all, we can't determine their unlawful combatant status by military tribunal, because that would be entirely tautological: only unlawful combatants are subject to the jurisdiction of military tribunals, and military tribunals have the authority to decide whether someone before them is an unlawful combatant.

So not only does your position make no sense, the Court's in Quirin also makes no sense.

Jacob: that's true, but I don't think it gives us any indication of whether or not there's any notion of "unlawful combatant" that applies to internal conflicts (i.e. the internal conflict currently brewing between the supposedly independent and sovereign Iraqi state which allegedly has been "return[ed] ... to its people" for over a year).

After all, we're only using the geneva conventions here as a proxy, really, for "effect of the laws of war." If those laws of war are in effect that permit a nation to designate another nation's citizens (or their own!) as "unlawful combatants," then my point goes down the toilet. The fact that certain (but explicitly not all, as paragraph 84 of the linked decision notes) provisions of the geneva conventions apply to internal conflict do not seem to have any relevance to the question of whether this amorphous category in international law, never mentioned in the conventions, and only derived therefrom by negative inference and by a 1942 supreme court decision about World War II, applies to internal conflicts. The fact that nations can't exterminate their own civilians does not give a nation the right to imagine this unprecedented-in-internal-conflict "unlawful combatant" category to categorize same.
7.9.2005 11:27am
Humble Law Student:
Paul Growder,

In reply to your first point, Milligan is irrelevant I believe for two reasons. First, I most emphatically have not come to a definite conclusion as to whether the US government should be (or is) allowed to prosecute US citizens through only military tribunals. That is an open question to me still, so I haven't really focused on that, and dont wish to yet.

However, the reason the court distinguished Milligan from from Quirin was because the person in question was a US citizen. That is the key point. Your point of, "Milligan didn't adhere to an enemy army" wasn't the point of the case. That is a way to explain it, sort of. But by stating it in that matter, you can draw implications that are completely at odds with the plain text of the decision. A more accurate way to describe it was that Milligan was distinguised from Quirin, because in difference hung on whether those in question where US citizens or not. The guy in Milligan was "a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. (from Quirin)" This is important, because the one of the Germans captured in Quirin, attempted to claim citizenship through naturalization. However, the court said that they didn't have to honor his citizenship (in terms of civil trial) because he resided in a country we were at war with etc...

But like I said previously, it is rather irrelevant. The differences between Milligan and Quirin related to the citizenship status of the individual, nothing more really.

In regards to your second point, you said,

" Problem is, that begs the question of how we determine that they're unlawful combatants. Assuming some modicum of due process applies to accused saboteurs, one would have to determine their unlawful combatant status by some permissible means before they were subjected to military tribunal process to determine their punishment. After all, we can't determine their unlawful combatant status by military tribunal, because that would be entirely tautological: only unlawful combatants are subject to the jurisdiction of military tribunals, and military tribunals have the authority to decide whether someone before them is an unlawful combatant. "


Lets make a distinction here. There are military tribunals for punishing unlawful combatants and then there is the system for determining the status of individuals captured and detained to determine if they are unlawful combatants (historically determined through a seperate type of tribunal). You seem to get hung up on the idea that a military tribunal only does one thing - to punish those captured. That is just like saying a civil court can only determine estate law or something and no other type of law. Obviously, courts of all types deal with many types of issues. Once you recongnize that, your apparant quandary in resolved.

Additionally, the military has had a system in place for many years that as a whole has worked very well for making such determinations. The courts have never seen a reason to mess with in on a broad scale. So, your worrying seems somewhat chicken littlish

You state,

"After all, we can't determine their unlawful combatant status by military tribunal, because that would be entirely tautological: only unlawful combatants are subject to the jurisdiction of military tribunals, and military tribunals have the authority to decide whether someone before them is an unlawful combatant.

Demonstrably false. You are once again falsely thinking that military tribunals are some monolithic body that only can deal with one issue. There are military tribunals (the usual method for determing the status of an individual) for determing if someone is a lawful or unlawful combatant. Just because someone is determined to be a lawful combatant, that doesn't mean the tribunals decision is unlawful just because it doesn't have any further juridiction to punish them. Then once a decision has been made that they are unlawful, then a seperate tribunal can be convened to punish them if so desired. (a lawful combatant is just put into a POW camp).

If you want to read about how the military does such determinations, I believe some other posters put up some information about that process.

So, dont worry, Paul, your fears have been shows to be completely unfounded. :)
7.9.2005 3:57pm
Humble Law Student:
Ahhh, sorry for the typos, I hit post, before I could read through it to correct them. I apologize for that. I know how annoying it makes it when there are such errors.
7.9.2005 3:59pm
Jacob Lister (mail):
A nation can designate people as "unlawful combatants," try and convict them in military courts for various defined crimes, where it has control through its military.

The Supreme Court characterized as "well-established" the "power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war." Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946).

And in Johnson v. Eisentrager (1950), the Court allowed the US to conduct military tribunals for Germans who were accused of assisting Japan in hostilities in China against the US after Germany had surrendered in May 1945. Rasul v. Bush overturned that decision with regards to habeas corpus for people detained indefinitely, but did not hold that military tribunals are an improper venue.

The laws of war generally allow a military to exercise jurisdiction over the territory it controls. For example, the Hague Convention of 1907 allows an occupying army to collect taxes and tolls (Art. 48), control state buildings (Art. 55), and so on. Geneva IV allows the military to try people for criminal offenses of the former owner(Art. 64), and criminal offenses of its own devising provided it gives notice of the new laws to the populace (Art. 65), etc. The military generally takes over the role of the state, as in "martial" law. It can conduct criminal trials and trials for crimes against the laws of war or crimes against humanity conducted while it is in control. So, yes, the military can designate another state's citizens as "unlawful combatants," provided it has jurisdiction and charge them with a crime and try them accordingly. It could even charge and try its own citizens in some circumstances (see Madsen v. Kinsella, 343 US 341 (1952), holding that a military commission could try an American civilian for a crime committed during peace time in West Germany against German law, which had been adopted as well by the American military occupation).
7.9.2005 5:19pm
Paul Gowder (mail):
Humble: you still haven't answered my fundamental point viz. the consistent position of the United States government that it has given sovereign authority over the "occupied" territory back to the Iraqi people, which divests the U.S. military of jurisdiction over supposedly "unlawful combatants" under any theory. The position of the U.S. military in Iraq is exactly the same as the position of the U.S. military in Japan: troops based in an allied sovereign nation. Not an occupation. Suppose someone commits a terrorist act against a U.S. personnel carrier in Japan? Do they get grabbed away as an unlawful combatant, or will they be subject to the civil legal process in Japan or the U.S., depending on extradition negotiations? You have not, and can not, address the fact that, as a matter of international relations, The United States has recognized the government of Iraq as the sovereign ruler of the territory in which the United States is exercising military jurisdiction. That makes this situation fundamentally different from an occupation (and also distinguishes Jacob's authority). The U.S. military is not "in control" of the territory comprising Iraq.

I think that resolves the legal question, as I've been saying again and again. The combination of defeated enemy army (no war) and handed-over sovereignty (no occupation) removes the instant situation from all precedent (unless Jacob finds some more cases, of course). But the ethical question is also critical. More fundamentally as a question of justice and the rule of law: if a military tribunal gets to determine if someone is an unlawful combatant so that it can punish them, then the military tribunal has the power to secretly take over the entire justice system of a territory in question. There are no checks, no balances. If you pick the general's pocket, the military tribunal can call you an "unlawful combatant," simply because you're in the territory in question, and you get shot for espionage, no appeal, no habeas corpus, no jury, no counsel, no compulsory process, no confrontation? Is that it?

Let me pose a hypothetical to you, which I'll be leaving you with the last word in response to (because this discussion is getting entirely tiring and time consuming and I have better things to do):

Suppose I happened to be -- entirely innocsntly -- strolling through the streets in Baghdad, with a suspicious bulge that turns out to be a monkey wrench (say I'm a plumber) in my jacket, and the U.S. Military arrests me, puts me in front of a military tribunal, and charges be with sabotage as an unlawful combatant. Do I have any procedural rights of the type I listed in the previous paragraph at all? Or is the mere fact that I was walking through the streets with a wrench enough to give some tribunal, without my having anything close to an opportunity to defend myself, the authority to take jurisdiction over, try, and execute me in secret?

What would you do, in such a situation, as the defendant? Beg, on your knees, for mercy from the handful of military personnel who have absolute power over you? Revolt? Simply die?

Would the knowledge that an army was in your country with the self-asserted power to do this to you at any time drive you to acts of violence against that army? Imagine that the U.S. army decided to arrogate to itself the power to behave like this in U.S. territory. Imagine that you could be whisked off the street at the will of some paranoid-terrified lieutenant and thrown in front of some star chamber, accountable to no one, to answer in secret for anything they feel like charging you with. Would you experience yourself as oppressed? Or -- or -- suppose they didn't even give you a visit to the star chamber! Suppose they just detained you until they no longer considered themselves in "danger?" Would you respond to such soldiers with fear, rage aned violence? Would you appeal to Jefferson as you hurled bombs?

Put yourself in that position! Better, put yourself in John Rawls' original position! You don't know what country you're going to be born in. Would you endorse a rule that holds, for all intents and purposes, that people in certain countries can be whisked off the streets and held, for the rest of their natural lives, with either minimal or no judicial process, on the basis of a claim that it is "neccessary" to protect the troops of a conquering power? (And frankly, it would be nice if you would submit to being pinned down on whether military tribunals are necessary or whether we can detain people indefinitely without even those.)

Jacob: are you aware of any authority pertaining to the jurisdiction of states which are not "occupying" conquered territory (as the Allies briefly were following WWII)?
7.9.2005 6:27pm
Humble Law Student:
Paul, I'll deal with your substantive legal point first. You wrote,

"The United States has recognized the government of Iraq as the sovereign ruler of the territory in which the United States is exercising military jurisdiction. That makes this situation fundamentally different from an occupation (and also distinguishes Jacob's authority). The U.S. military is not "in control" of the territory comprising Iraq.

I think that resolves the legal question, as I've been saying again and again. The combination of defeated enemy army (no war) and handed-over sovereignty (no occupation) removes the instant situation from all precedent (unless Jacob finds some more cases, of course)."



First off, you must understand a key distinction. SCOTUS has held that those who engage in military operations (conviential or not) against our armed forces, where ever they are, are subject to capture, detention, and prosecution (if they aren't legal combatants, but rather illegal combatants). The fact that Iraq is recognized as a sovereign nation doesn't automatically keep America from dealing with illegal combatants that it captures there. The Iraqi government has specifically asked for our help to stamp out the insurgency. So, we have a valid military and legal reason for being there (at least now). Additionally, we haven't signed any extradition treaties that are relevant to our discussion (I realize that the exchange of detainees would mostly occur within Iraq, but I believe it would still be considered an extradition treaty or the relevant equivalent). So, when individuals engage our military, we under our own laws, have every right to detain the illegal combatants. We aren't under an obligation to turn them over to the Iraqi government for prosecution for actions they committed against our military. Only if we signed a treaty would be legally obligated to. The offence was committed against the US military not against the Iraqi government. That is why the Iraqi sovereignty issue isn't relevant at this time (at least not in the manner that you argue).

In regards to your hypothetical, sure, anything is possible. That situation you posit could theoretically occur or have occurred.

However, you error is in assuming the worst of the military. Of course, such an individual wouldn't have the same procedural rights as a US citizen standing trial in civil court. However, the military does have a system in place for dealing with such issues. As Wince and Nod previously stated,

"We are arguing about military law, a subject matter area in which we have no expertise. Amazingly you argue that the military legal system, filled with military legal experts has utterly abandoned the rule of law and our ideals of justice. I'm not a civil lawyer either, but might that not be a claim of gross negligence or malfeasance? I'm sorry, but you haven't got the goods to back that up.

I doubt you are contending that because the real criminal justice system make real, documented mistakes, including real documented mistakes enforcing unjust laws, that we should open the prison gates and let everyone out, plus disband the police. That's what your argument appears to boil down to, however. "

Good words for you to hear again.

Back to your hypothetical. Sure, anything like that is possible, but that doesn't make it likely. Additionally, arguing from hypothetical extremes while rhetorically effective is not the greatest form of reasoning.

To continue in your mold, here is another hypothetical. Paul, please tell me what exactly keeps our military from taking over our own country and declaring martial law? Most of our citizenry aren't proficient in the use of firearms. And of the firearms that are legal, you don't have automatic weapons, artillery, tanks, aircraft, and other heavy weapons. The reason our military doesn't just take over the country, is because of each individual's belief in the rule of law. The same military you decry is the one that secures your right to rant against them. This same military could crush you, me and everyone who opposed them with hardly breaking a sweat. And yet then don't. There are always bad apples, as Abu Ghraib unfortunately showed. But they are few and far between. If the military is as bad as you imply in your "fear" of them, and in your hypotheticals, then we are all in for a world of hurt.

I leave you to your fear and loathing.
7.9.2005 8:08pm
Jacob Lister (mail):
UN Security Council Res. 1546, clause 10 gives the multinational force "the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism . . . ."

Which I believe resolves all the legal questions as to the authority of the US to detain people in Iraq, at least for the time being. As for the ethical questions of giving the military such power, with few or no checks or balances, I agree, it does conjure up frightening scenarios, which is why it is so rarely enacted.
7.9.2005 10:00pm
Anonymous Reader:
I would like to add a couple of key points. Iraq is a sovereign nation. Understanding that, they have their own military and police forces. So they have the right to arrest and detain people as they see fit. In fact, that's exactly what they've been doing. I've heard of them arresting some of the terrorists for their actions and parading them, unmasked, on the TV in order to show them to the people of Iraq. So please don't assume that only coalition forces are detaining these terrorists.

Also, when is the last time you have heard of a terrorist being detained and sent to Gitmo? My point is that the numbers in Gitmo are not increasing, they are DECREASING!

Paul: Your hypothetical is ridiculous. You imagine the worst of the military and show absolutely no respect for the fine men and women in the armed forces. Again, do you think that military lawyers, trained and well versed in the articles of war would just violate them at whim? Not to keep bringing things back to the states, but I guess you think that the police would just arrest anyone off the street, charge them with a crime, and send them to death row or life imprisonement. Again, the wrong people are sometimes detained, but those who are wrongly detained are immediately released. Do you think it helps the fight to win the hearts and minds to detain people for longer than necessary? Yes, mistakes happen, but it's totally irresponsible to imagine the worst of our intentions. When mistakes are made, they are quickly rectified.

As for why we can detain indefinitely. Just look at the Geneva Conventions. If anything, the US is going above and beyond the rules by allowing these illegal combatants to live in the laps of luxury.

I am sorry that you have such a narrow and farfetched view of how the military conducts business. Not to sound to disparaging, but you obviously no nothing about the military and by some of your paranoid and ridiculous comments, you do not care to learn about how things are done. I hope that in the future, we all can learn from those who've actually served and are serving in the military.

Anonymous Reader
7.9.2005 11:22pm