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Col. Davis for the Defense:

The Washington Post reports on Col. Morris Davis' testimony at Salim Ahmed Hamdan's military commission trial yesterday.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.

ithaqua (mail):

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Fair enough. The most important national security issue facing this country is keeping the Democrats out of the White House.
4.29.2008 8:47am
ithaqua (mail):
"Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy."

So what, this guy wanted to let some terrorists walk to 'give the process added legitimacy'? Which side is making a mockery of the legal system again?
4.29.2008 9:05am
bittern (mail):
Okay, I'm convinced. Ithaqua IS a troll. Good luck with discussing nat'l security and American values with ithaqua awake, y'all.
4.29.2008 9:21am
darelf:
I don't understand Davis' comments in light of the reality that the vast majority of prisoners at Gitmo are released.... The only ones they hold on to and charge are the ones they believe are serious threats.

In fact, a large number of prisoners had been released merely by signing a pledge. ( and then later got back into terrorism, which shows they were being quite a bit more lenient than they should have been )
4.29.2008 10:11am
Bart (mail):
I did not realize that Davis was setting national policy.

What possible relevance do Davis's policy disagreements with his superiors have to do with Hamdan's case? There is not a single allegation here nevertheless proof that Hamdan's judge or prosectors have done anything improper.

The Court better not let these trials turn into circuses.
4.29.2008 10:15am
Sk (mail):
Isn't this an inevitable consequence of treating what, in past wars, would be POWs, as criminal defendents?

If we were required to 'try' every German, Japanese, and Italian POW as criminal defendents, the overwhelming majority of them would have been found not guilty (not necessarily because they weren't guilty, but because there simply would be no evidence of guilt: rounding up teenagers on a battlefield, performed by other teenagers who happen to be wearing a different uniform, doesn't yield criminally defensible evidence). The overwhelming majority would have been held for years and then found 'not guilty.'

And thus, here we are. Taking POWs, then treating them as criminal defendents, is a contradiction in processes. Of course some POWs will be found 'not guilty' if treated as criminal defendents. Of course POWs are held for years. Thus, of course, if POWs are entitled to trials, they will have been found not guilty after having been held for years.

Sk
4.29.2008 10:16am
ejo:
if you think of war as a legal exercise, it all becomes some sort of courtroom abstraction. due process was served but we lost the war becomes a victory in the eyes of the legal community. Thankfully, in the past, we were wiser and knew that due process is not part of the equation until you actually win. being magnanimous in victory is one thing, working to assist the enemy during actual hostility is another. as a nation and people, we knew that at one time.
4.29.2008 10:22am
Jiminy (mail):
Sk, the problem starts when you don't treat POWs like a POW, and then because you failed in that respect, you end up backpedaling and try to gain a modicum of legitimacy with these criminal trials. Bush was so eager to not treat these soldiers and killers as anything else but a POW, and then that reasoning backfired on him when the support evaporated

And to those who lament the usage of due process or letting the terrorists/liberals win; we would have had our precious victory against these scumbags if we were not so hasty to weaken our Afghanistan front for the Iraq front.

This war would have been over years ago if we were not preoccupied with occupation in too many countries at once. We knew at one time, that a country must be on a war footing, with rationing, war bonds, and no tax breaks for anyone until the fighting is finished. We were wiser, yes.

When the Germans went after the Russians for punitive instead of strategic reasons, they sealed their own fate and reduced their margin of probability for winning the war on their terms. They spread their efforts too thin.

I have the ultimate faith in the training and deployment of our special forces. They were not given the tools that they needed and the manpower to secure such a large and lawless area as Afghanistan.
4.29.2008 10:39am
ratel (mail):
Off Topic but, the Germans did not go after the Russians for punitive reasons. A strong argument can be made that the ultimate strategic goal of Germany in WWII was the conquest of European Russia, specifically the fertile grain fields of Ukraine and the Oil Fields of the Caucus. The attack on Western Europe was a preliminary move to avoid fighting a two front war.
4.29.2008 11:43am
MarkField (mail):

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.


This may not make him a good defense witness, but it certainly adds to his credibility for those of us who are concerned about the morality and fairness of the trials, but are willing to let the chips fall where they may once a fair trial has been held.
4.29.2008 11:46am
ratel (mail):
Back on topic,
It seems that once the Administration made the decision not to treat these detainees as POW's they defaulted to the status of criminals. In fact, one of the ways to undercut the political goals of a terrorist is to treat them as nothing more than a common criminal.
4.29.2008 11:51am
Seamus (mail):
So what, this guy wanted to let some terrorists walk to 'give the process added legitimacy'? Which side is making a mockery of the legal system again?

The one who thought that only one outcome was possible.
4.29.2008 11:59am
Bill Poser (mail) (www):

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.


Of course, in a real court with real rules of evidence Colonel Davis' opinion as to Hamdan's guilt would not be admissible, would it? He has no personal knowledge, and in any case guilt is a conclusion left to the trier of fact.
4.29.2008 12:07pm
LarryA (mail) (www):
It seems that once the Administration made the decision not to treat these detainees as POW's they defaulted to the status of criminals.
Well, there's also "material witnesses," "hostages," "kidnap victims," and "detained for your own protection."
In fact, one of the ways to undercut the political goals of a terrorist is to treat them as nothing more than a common criminal.
Ah, but then the whole Bill of Rights thing kicks in. You'd have to cancel the "forcible" interrogation, read them Miranda, provide attorneys, find probable cause, impanel civilian grand juries, and probably let them all go for lack of a speedy trial.
4.29.2008 12:31pm
bittern (mail):
Nicely put, Seamus.
4.29.2008 12:41pm
ejo:
making a mockery of the legal system? the legal system has little relation to the efforts of a nation in winning a war-as with many things, the best way to avoid a mockery is to limit involvement in things that it should not be involved in. quite frankly, having our service members defend our enemies in a time of war is a mockery to enable them to go back and kill their fellow service members is a mockery, don't you think?
4.29.2008 1:22pm
Ben P (mail):

quite frankly, having our service members defend our enemies in a time of war is a mockery to enable them to go back and kill their fellow service members is a mockery, don't you think?


I'm really tired of this stupid false dichotomy between "letting terrorists go free to kill" and "we can do whatever we want with them."

As others have pointed out, the root of this problem is our decision not to accept that the Geneva conventions apply. I realize there is a legal argument that they may not apply because Al Queda/whatever isn't a nation state. But whether or not it's legally necessary doesn't necessarily have a bearing on whether or not it's a good idea.
4.29.2008 1:41pm
Oren:
I think Davis join Luttig in the disgruntled conservative category. They should get together and share stories. . .
4.29.2008 1:42pm
Sigivald (mail):
Sk: The even more basic problem is that combatants not in uniform and not fighting in an army aren't POWs, under the same traditional (and codified) laws of war.

That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants.

(Incentives matter, and the point of the distinction is to protect the non-militarized population by keeping the military and the civilian thoroughly separate.

If, however, the un-uniformed get protection both as presumptive civilians while not in active combat and as "prisoners of war" when captured, as if they'd been fighting by the rules, that's a thoroughly perverse incentive and leads to the destruction of the very rules that try to civilize war.)

But back to the post, we have "But he said Hartmann replied that "everything was fair game -- let the judge sort it out.""

That statement seems about right to me; isn't that what judges are supposed to do? And opposing counsel, for that matter?

If, for example, police get a confession outside of a Miranda warning, there's nothing improper about offering it in court - but opposing counsel won't be kind to it.
4.29.2008 1:42pm
hattio1:
Professer Adler says;

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.


Haven't you heard the old adage; if the law is on your side, pound on the law, if the facts are on your side, pound on the facts, if neither is on your side, pound on the table. The lawyer here is just doing the best he can for his client.
4.29.2008 1:54pm
Sk (mail):
"Sk: The even more basic problem is that combatants not in uniform and not fighting in an army aren't POWs, under the same traditional (and codified) laws of war.

That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants."

Yes, I didn't want to muddy the waters further by bringing up the whole 'in past wars, combatants out of uniform would have been executed as spies' argument because 1) I don't know the exact procedure for doing so (was the authority for an execution at the Colonel level? Brigadier General? General in Chief-a la Eisenhower? I don't know), and 2) that brings up a whole host of additional arguments. Arguing whether the detainees are POWs are not, arguing whether they should be entitled to civil defense processes or not, arguing whether they can be held without trial, and finally, arguing whether they can legally be executed as spies are all complex and drastically different (legally and of course morally) arguments.

In the confines of this little post, it is difficult enough to get people to realize that POWs in past wars didn't enjoy counsel (other than in very unusual circumstances: the Nuremberg Trials, the trials over the Malmedy Massacre, etc) without bringing up execution.

Re: your second point:

But back to the post, we have "But he said Hartmann replied that "everything was fair game -- let the judge sort it out.""

"That statement seems about right to me; isn't that what judges are supposed to do? And opposing counsel, for that matter?

If, for example, police get a confession outside of a Miranda warning, there's nothing improper about offering it in court - but opposing counsel won't be kind to it."

This is the whole point of my post. Soldiers on the battlefield don't collect evidence. They also don't 'arrest' people in any legally defensible manner. They shoot at, or intimate, enemy soldiers until those enemy soldiers stop fighting or die. Thus, if we are honest, NO combatants held would be 'chargeable' in a court: there won't be defensive evidence collected, and proper procedures ('Miranda warnings') won't be followed when the 'defendents' are seized.

You are arguing for a system in which, by definition (based on the procedures in place when the defendents were originally seized), the defendents will be found 'not guilty' on procedural grounds and go free.

Or are you arguing that Judges should 'sort it out,' but not apply law when doing so? Perhaps judges don't maintain standard rules of evidence (because there would be none), and don't worry about standard procedural rules of detention (because soldiers don't follow them)-instead, they kind of 'logic out' or 'figure out' whether the guys are guilty or not?


Sk
4.29.2008 2:08pm
treebeard (mail):
On a different subject (but still related to the post), how often do criminal prosecutors feel abused as described here? Does that come with the territory, or is this story about abuse and micromanagement somewhat rare? I realize it will depend in part on location, but I'm curious about how it usually works. Are prosecutors usually able to withstand this type of pressure, or do they often have to give in to keep their jobs? Can they return tit for tat and get away with it?
4.29.2008 2:14pm
davod (mail):
"Isn't this an inevitable consequence of treating what, in past wars, would be POWs, as criminal defendents?'

As previously stated, if these pople were in uniform they wouldn't be at Guantanamo. They are unlawfull combatants.

Giving them any protections at all makes it harder for non-combatents. The ratbags have no fear of being caught hiding among non-combatents because there is no penalty for risking innocent lives.
4.29.2008 2:22pm
MarkField (mail):

That statement seems about right to me; isn't that what judges are supposed to do? And opposing counsel, for that matter?

If, for example, police get a confession outside of a Miranda warning, there's nothing improper about offering it in court - but opposing counsel won't be kind to it.


There are limits to this even in civil litigation. A lawyer cannot, for example, allow a witness to give testimony that he (the lawyer) knows is perjured. Prosecutors have stricter rules -- among other duties, they have an obligation to assure that the accused receives a fair hearing. Thus the rule in Brady v. Maryland, for example.
4.29.2008 2:32pm
ejo:
I am sorry it upsets you so but the fact remains is that we are devoting service members to assist those who we are engaged in hostilities with in a time of war. if you are looking for a mockery of common sense, this would seem a prime target. Nuremburg is always brought up in these threads-we had the decency and common sense to wait until after hostilities had ended and a war was won to actually hold those trials. Further, we also are, in effect with the GC argument offered, encouraging conduct that the GC were supposedly put in place to guard against. We supposedly didn't want people fighting out of uniform in civilian areas-giving the due process protections of the criminal justice system to those that do so seems a little morally twisted.
4.29.2008 2:43pm
J. F. Thomas (mail):
That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants.

Actually, you are oversimplifying the GC rules on whether someone is lawful or unlawful combatant--in some instances (e.g., irregular forces fighting invaders) non-uniformed fighters can be considered lawful. Afghan members of the Taliban certainly had at least a colorable claim to being lawful combantants.

As for the "traditional law of war", this country has operated under the GC for well over a hundred years and summary executions have been prohibited by our (and most western) military for at least the entirity of the twentieth century. The British executed some of their own soldiers in the Boer War for the summary execution of non-uniformed enemy combatants (watch Breaker Morant if you want background on the incident).

The UCMJ and the GC strictly prohibit the summary execution of anyone at any time for any reason. To contend otherwise is to simply misread the conventions and ignore U.S. law. Only a duly constituted legal tribunal can punish anyone, no matter what their status is under Geneva, under military law.
4.29.2008 2:52pm
Dilan Esper (mail) (www):
That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants.

1. The Geneva Conventions does not call anyone an "unlawful combatant".

2. Common Article III applies to allegedly unlawful combatants, as established by binding US Supreme Court authority, and that means no summary execution.

3. Even if we assume that pre-Geneva, one could summarily execute combatants out of uniform, (1) that doesn't mean one should, (2) it doesn't mean that one can torture them, or hold them in Guantanamo, or do the other things we have done to them, and (3) it doesn't mean that the US wants to set a precedent that its special forces can be summarily executed, tortured, or held hostage if caught in another country.
4.29.2008 2:57pm
libarbarian (mail):

Isn't this an inevitable consequence of treating what, in past wars, would be POWs, as criminal defendents?



Making facile comparisons of people seized in police raids in peaceful areas to Germans captured on the field of battle is too stupid to comment on.
4.29.2008 3:26pm
libarbarian (mail):


This is the whole point of my post. Soldiers on the battlefield don't collect evidence. They also don't 'arrest' people in any legally defensible manner. They shoot at, or intimate, enemy soldiers until those enemy soldiers stop fighting or die. Thus, if we are honest, NO combatants held would be 'chargeable' in a court: there won't be defensive evidence collected, and proper procedures ('Miranda warnings') won't be followed when the 'defendents' are seized.



Anyone who knows anything about Guantanamo knows that only a small number of detainees were actually captured by US solidiers on the field of battle.


Most detainees were simply handed over to us by bounty-hunters for a cash payment. We shipped them to Gimo no questions asked. On top of that we have many that were taken in nighttime raids FAR from the field where we DO have the luxury of actually establishing guilt.

But keep scrambling. I'm sure one day you'll find an argument rooted in fact rather than baseless accusations based on personal prejudice.
4.29.2008 3:39pm
libarbarian (mail):

Actually, you are oversimplifying the GC rules on whether someone is lawful or unlawful combatant--in some instances (e.g., irregular forces fighting invaders) non-uniformed fighters can be considered lawful. Afghan members of the Taliban certainly had at least a colorable claim to being lawful combantants.



Like most people who glibly throw out supposed loopholes in the Geneva conventions it is clear that SK doesn't know anything about them other than what he has been told by so-called authorities he does have the brains or intellectual independence to question.
4.29.2008 3:42pm
hattio1:
For those who are so fond of the non-uniformed/not-member-of-a-National-army arguments for why there is NO protection for those who are at Gitmo, I assume you would have no problem if those fighting us in Iraq, do whatever they wish to those employed by Blackwater for example. No problem whatsoever with the burning of the Blackwater employees in Fallujah?
4.29.2008 3:54pm
libarbarian (mail):
If we are going to make arguments based on the G. Conventions it might help to know what the hell they actually say. I know its easier to just make shit up, but those of us who want to do something other than find any justification for treating presumed enemies like animals should at least ground out arguments in facts.

Third Geneva Convention "relative to the Treatment of Prisoners of War"

Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War"

And, no, the term "unlawful combatant" does not appear anywhere in any capacity. It is, however, a great expression for people who only want to APPEAR like they know what they are talking about.
4.29.2008 3:58pm
Bart (mail):
hattio1:

For those who are so fond of the non-uniformed/not-member-of-a-National-army arguments for why there is NO protection for those who are at Gitmo, I assume you would have no problem if those fighting us in Iraq, do whatever they wish to those employed by Blackwater for example. No problem whatsoever with the burning of the Blackwater employees in Fallujah?

Blackwater employees are not combatants who conduct offensive operations against the enemy. They are security guards on a static defense mission.

Even if they were considered combatants, the Blackwater employees fall under the definition of privileged combatants under the GCs by openly carrying their weapons and wearing gear which identifies them at a distance as a combatant and not a civilian.

Al Qaeda and its allies are not privileged combatants under the GCs because they disguise themselves as civilians, hide among civilians, commit war crimes in violation of the GCs and do not observe the GC requirements privileged combatants.
4.29.2008 4:26pm
Bob from Ohio (mail):

it doesn't mean that the US wants to set a precedent that its special forces can be summarily executed, tortured, or held hostage if caught in another country


Do you really think that our enemies need a "precedent" before they will kill or torture American soldiers?

So, when US soldiers have been captured in Iraq, absent Gitmo, they would have been released unharmed instead of being tortured and killed?

Or going back a little further, when Petty Officer Robert Dean Stethem was killed, what US "precedent" was being followed?

When our Ambassador to the Sudan was killed by the PLO, what "precedent" was being folowed?

What "precedent" was followed when John McCain was tortured?

When US prisoners n Korea were taken to China and "brainwashed", what "precedent" were they folowing?
4.29.2008 4:40pm
J. F. Thomas (mail):
Even if they were considered combatants, the Blackwater employees fall under the definition of privileged combatants under the GCs by openly carrying their weapons and wearing gear which identifies them at a distance as a combatant and not a civilian.

Actually they wouldn't, since they don't wear insignias of rank. Also they fit they would fit the definition of mercenary because they are not part of the regular military and make much more than ordinary American soldiers doing the same job.
4.29.2008 4:57pm
Mark Field (mail):

Do you really think that our enemies need a "precedent" before they will kill or torture American soldiers?


Of course not. They aren't the ones who need the precedent, we are. We need the precedent to confirm that when our enemies behave like this, we can shout to the world about how barbaric they are and how justified we are in tracking them down. We lose that platform of justice if we behave like our enemies do; we're no better than they are.
4.29.2008 5:35pm
Sk (mail):
"Actually, you are oversimplifying the GC rules on whether someone is lawful or unlawful combatant--in some instances (e.g., irregular forces fighting invaders) non-uniformed fighters can be considered lawful. Afghan members of the Taliban certainly had at least a colorable claim to being lawful combantants.

Like most people who glibly throw out supposed loopholes in the Geneva conventions it is clear that SK doesn't know anything about them other than what he has been told by so-called authorities he does have the brains or intellectual independence to question."

Um..I didn't write the paragraph you quoted. JK Thomas did.

In fact, I never mentioned the geneva conventions in either previous post, and never referred to the geneval conventions. I also never mentioned a loophole to the geneva conventions, either.

Sk
4.29.2008 5:40pm
libarbarian (mail):

Even if they were considered combatants, the Blackwater employees fall under the definition of privileged combatants under the GCs by openly carrying their weapons and wearing gear which identifies them at a distance as a combatant and not a civilian.


Lies. Most PMCs wear civilian clothes and no uniforms or any other insiginia identifying themselves as combatants. The only "gear" that they carry identifying themselves as combatants are their guns.

The Mahdi army - which I assume you do not consider to be privileged - also carries their arms openly. Frankly, ANY material standard under which PMCs qualify as combatants ALSO applies to groups like the Mahdi army as well.
4.29.2008 5:48pm
ObeliskToucher:
Article 4.A.4 of the POW Convention would be the most likely coverage for a Blackwater employee:

"4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model."
4.29.2008 5:48pm
libarbarian (mail):

Um..I didn't write the paragraph you quoted. JK Thomas did.

In fact, I never mentioned the geneva conventions in either previous post, and never referred to the geneval conventions. I also never mentioned a loophole to the geneva conventions, either.


Yes you did.

Scroll up dude. You wrote:

That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants." -SK



Now you have lied about what the Geneva Conventions say and lied about what you said about the Geneva Conventions. Are you Hillary Clinton? If you are going to lie about what you said or did not say please dont do it when the evidence that you ar lying is so easily available.

P.S. Geneva Conventions DO NOT call ANYONE "unlawful combatant". It is clear that you have never read it and are simply parroting points that you have read from other people.
4.29.2008 5:55pm
J. F. Thomas (mail):
Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model."

This is to protect non-combatant personnel such as cooks, non-military medical personnel and the like--not mercenaries. Mercenaries, which are illegal combatants and not entitled to POW treatment, even if they are wearing uniforms, are not covered by that provision. In fact according to SK and his ilk, they can be summarily executed.
4.29.2008 6:09pm
ObeliskToucher:
J. F. Thomas said:

This is to protect non-combatant personnel such as cooks, non-military medical personnel and the like--not mercenaries. Mercenaries, which are illegal combatants and not entitled to POW treatment, even if they are wearing uniforms, are not covered by that provision. In fact according to SK and his ilk, they can be summarily executed.

I assume it says this somewhere in the J. F. Thomas codicil to the convention? Otherwise, since it doesn't say that anywhere in the written text, you seem to just be waving your arms and screaming "Mercenaries! Mercenaries!"...
4.29.2008 6:43pm
Ben P (mail):

I assume it says this somewhere in the J. F. Thomas codicil to the convention? Otherwise, since it doesn't say that anywhere in the written text, you seem to just be waving your arms and screaming "Mercenaries! Mercenaries!"...


As I see this it's a factual question. (As to who determines the facts I'm not really sure in this case)

You have reporters accompanying your units. They clearly fall under that treaty section as "war correspondents." Same with civilian technical specialists.

You might be able to make the case that people like this fall under this section of the GC's even if they're armed for self defense. But on the other hand, if they're doing something like escorting VIP's through arguably hostile territory, it's quite a bit harder to argue that they're legitimately "civilian members accompanying the armed forces."
4.29.2008 6:59pm
libarbarian (mail):
Obelisk Toucher,

The fact that every job enumerated is a non-combatant role certainly makes his point more compelling than just screaming "mercenary". I don't know how this article is traditionally interpreted but I wouldn't be surprised if J.F., and not you, had the bulk of precedent behind him.
4.29.2008 7:06pm
libarbarian (mail):

Furthermore,

Exclusively focusing on the Geneva Convention distracts us from the important point that many GWOT detainees were seized outside of both combat and any warzone.

The idea that most GWOT detainees were taken "in flagrante delicto" is simply wrong. It is a fantasy!
This claim is either a mistake made by trusting people or a bald-faced lie by someone who knows better. Most GWOT detainees were never captured by US forces much less in "combat". Most were handed over to us by foreign entities (governments or local groups) in return for $$$ or favors. Others have been taken in raids far outside the borders of any warzone.

It is one thing to argue that the GC doesn't cover an armed man who was captured in the middle of combat operations - his guilt can be presumed. It is another to argue that the same applies to people who were taken, unarmed, out of their beds during police-style raids or people who were simply rounded up because they were men of military age caught up in routine sweeps after an IED explosion or people who were simply handed over to us by others who said "this man is a terrorist". The fact is that plenty of Iraqis and Afghans have played us for suckers by handing over personal enemies to us and claiming they were terrorists.

It is bad-faith to argue that the 3rd GC even applies to unarmed people who were captured outside of combat. Unarmed people outside of combat are presumed to be civilians. Arguing their status as war criminals begs the question of their guilt. You cannot simply start by assuming someone is a terrorist, and hence not covered by the GCs for Civilians or POWs, and then use this assumption to justify not applying the GC to them.
4.29.2008 7:38pm
Malvolio:
Actually they wouldn't, since they don't wear insignias of rank. Also they fit they would fit the definition of mercenary because they are not part of the regular military and make much more than ordinary American soldiers doing the same job.
Are those GC requirement? Certainly the US military does a certain amount of work concealing insignias of rank (partly as protection against sniper but mostly on the principle that shiny objects attract fire).

The part about pay doesn't sound any more plausible.

Moreover, if a Blackwater security guy shoots somebody, he has to justify as self-defense (just as you or I would); if a soldier shoots somebody, he only has to justify it under his commander's rules of engagement.
4.29.2008 7:43pm
Bart (mail):
J. F. Thomas (mail):

BD: Even if they were considered combatants, the Blackwater employees fall under the definition of privileged combatants under the GCs by openly carrying their weapons and wearing gear which identifies them at a distance as a combatant and not a civilian.

JFT: Actually they wouldn't, since they don't wear insignias of rank. Also they fit they would fit the definition of mercenary because they are not part of the regular military and make much more than ordinary American soldiers doing the same job.

Here are the requirements for irregular forces:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.


Blackwater meets all of these elements.

BTW, merecenaries are hired soldiers. Blackwater do not provide soldiers. They are no more soldiers that are the Secret Service.
4.29.2008 8:10pm
elim:
it took quite a few posts for the randomly picking up innocent goatherds blather to make an appearance. can I add that most were turned in by rival tribesmen for bounties? somehow, despite this, we have only a few hundred folks detained as opposed to the hundreds of thousands we should have under the goatherd who took a wrong turn in Istanbul train of thought.
4.29.2008 9:01pm
Brian G (mail) (www):
So let me get this straight. Davis is convinced the guy is guilty, but testified in his defense to air out his own policy differences? Oh please.

Of course, being in his position an dbeing a critic of Bush's policies will get you great press, as he surely knows. When is the book due out?
4.29.2008 11:11pm
Sk (mail):
Liberbarian:

"Yes you did.

Scroll up dude. You wrote:

That's why the Geneva Conventions call them "unlawful combatants" and treat them differently, and why the traditional law of war allowed for simple summary execution of un-uniformed combatants." -SK

Now you have lied about what the Geneva Conventions say and lied about what you said about the Geneva Conventions.Are you Hillary Clinton? If you are going to lie about what you said or did not say please dont do it when the evidence that you ar lying is so easily available."

The quote is from a post by Sigivald. Not me. Take a deep breath, reread the postings, and start over.

Sk
4.30.2008 1:03am
libarbarian (mail):
Sk,

You're right. I'm wrong. My apologies for misreading.
4.30.2008 2:08pm