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Do Habeas Rights Extend to Bagram Detainees Under Boumediene?:
Judge Bates says yes, at least for detainees not from Afghanistan who have been detained at Bagram for several years:
Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time -- here, over six years -- without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus, based on an application of the Boumediene factors. Three petitioners are in that category. Because there is no adequate substitute for the writ of habeas corpus for Bagram detainees, those petitioners are entitled to seek habeas review in this Court. Accordingly, respondents' motions to dismiss the habeas petitions of petitioners al Maqaleh, al Bakri, and al-Najar are denied. As to the fourth petitioner, Wazir, the Court concludes that the possibility of friction with Afghanistan, his country of citizenship, precludes his invocation of the Suspension Clause under the Boumediene balance of factors.
  Judge Bates's opinion strikes me as a careful and thorough application of Boumediene. The result is plausible under that case, especially given the vagueness of Boumediene and its multi-factor approach.

  At the same time, my guess is that the Supreme Court would (will?) look at this differently. Judge Bates ends up focusing a lot on the practical control that the U.S. exerts at Bagram, especially around page 30:
Perhaps the difference in jurisdiction precludes the United States from operating at Bagram, as it does at Guantanamo, entirely free from the scrutiny of the host country. As a practical matter, however, when assessing day-to-day activities at Bagram, the lack of complete "jurisdiction" does not appreciably undermine the conclusion that the United States exercises a very high "objective degree of control."
  My guess is that the Supreme Court would weigh freedom from scrutiny by the host country as a formal legal matter as more important than does Judge Bates, and that the Court would end up effectively limiting Boumediene to Guantanamo so that it generally does not cover detention elsewhere. That's my guess, at least. Obviously this will be an important case to watch.
Soronel Haetir (mail):
Not sure, but I do think there is a lot to go on with the citizen/non-citizen differentiation. The host country has a great deal more interest in how its nationals are handled than foreigners. However I am reminded that the US brought numerous POWs to the US mainland during WW2. Perhaps the rules on such detentions have changed?

Though my understanding in that situation was that few people contested that they were in fact legitimate captures.

Such a huge lovely mess. If the person is legitimately a combatant (regardless of whether they are a legal combatant) then we should be able to hold onto them. The process of that determination seems to be the most messed up part.
4.3.2009 12:39am
Oren:

Not sure, but I do think there is a lot to go on with the citizen/non-citizen differentiation.

I thought the emphasis was moving from where the person is held, to where they were captured. Bates makes a lot about the fact that the detainees in question where captured elsewhere and then moved to Bagram.

As a general approach, that seems quite reasonable.
4.3.2009 2:14am
Chris L:
I agree that Judge Bates was both constrained by Boumediene and appeared to undertake a good faith effort to follow it and apply it. To me, the key passage that foreshadows another round in the Supreme Court is this one:

Lastly, in evaluating the practical obstacles relevant to the extension of the Suspension Clause to Guantanamo, the Supreme Court noted that "if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impracticable or anomalous' would have more weight." Boumediene, 128 S. Ct. at 2261-62. Bagram is in such an "active theater of war" and the Court recognizes that the path to providing habeas review for these petitioners is likely strewn with more practical obstacles than was the case for detainees at Guantanamo.


Whether Justice Kennedy will have a change of heart this time around, your guess is as good as mine.

As a practical matter, I suspect that if this decision is affirmed, the effect may be an increased reliance upon renditions since detainees whose custody is relinquished into the hands of foreign powers won't be able to effectively seek redress in our civilian courts. The Los Angeles Times has already foreshadowed such a result even before today's ruling because the viable options for keeping our country safe were already dwindling, some by executive choice, others by judicial fiat.
4.3.2009 2:40am
John Moore (www):
I guess it's a good thing the geniuses in the White House have changed the name from a war to the "Overseas Contingency Operation!" We clearly no longer have the will to wage effective war.
4.3.2009 2:40am
CharleyCarp:
Judge Bates said the prisoners would get review of their cases -- hardly the end of the world for US, after six years of detention. If we're not capable of coming up with a valid basis to detain these particular men under the law of war, then their release won't mean much to us.

One would hope, of course, that the government would do better at Bagram than it has at GTMO, and maybe win more than 25% of the cases (GTMO prisoners are currently ahead 24-6, with one of the six being the Taliban cook, and another yesterday's Tunisian -- people who think release of either of those men would endanger the United States in any serious way need to have their dials adjusted -- and neither has been released!).
4.3.2009 6:52am
Dreadnaught (www):
Judge Bates should pack his robe. We will need a judge at Bagram, any traveling with all troops, in the future.
4.3.2009 8:21am
Houston Lawyer:
The judge doesn't need a robe, he needs a helmet and a flack jacket. I'll even grant him the right to carry a personal side arm.
4.3.2009 8:57am
Thomasly (mail):
As I read it, if Orin has it right, then Boumediene isn't so much limited to Guantanamo as limited to Bush. The idea that the scrutiny that our client government could hypothetically provide distinguishes Bagram from GTMO just seems a pretty slender reed to me. Maybe the new constitutional rule is that Republican presidents have less authority over foreign policy than Democratic ones.
4.3.2009 9:12am
Patrick216:
My guess is that the Supreme Court would weigh freedom from scrutiny by the host country as a formal legal matter as more important than does Judge Bates, and that the Court would end up effectively limiting Boumediene to Guantanamo so that it generally does not cover detention elsewhere.

The Supreme Court has already crossed the Rubicon by holding that habeas relief applies to enemy combatants captured in a time of war. Why stop there? The only difference here is that the Messiah will probably capitulate and release the three affected terrorists to avoid additional adverse precedent, just as he's going to release GTMO terrorists into the U.S. (and give them welfare to boot).
4.3.2009 9:19am
geokstr:
What's next - a determination that Miranda applies to those enemy combatants captured on the battlefield?
4.3.2009 9:33am
Dreadnaught (www):
Miranda will apply if enemy combatants are tried in Art III courts.
4.3.2009 10:17am
Anderson (mail):
habeas relief applies to enemy combatants captured in a time of war

Isn't it a little late in the day to be begging the question as to whether these are "enemy combatants" in the first place?

I mean, that point has been made, what, 10,000 times at this blog alone?

If they are "enemy combatants," then of course we have authority to detain them. That is the *issue*.
4.3.2009 10:38am
Soronel Haetir (mail):
Oren,

Except that the one Afghani involved claims to have been captured elsewhere. Yet the judge ruled that Afghanistan has enough of an interest over Afghani nationals that at least for now his claim must fail.
4.3.2009 10:42am
Anderson (mail):
From the SCOTUSblog summary:

While Bagram is "located in an active theater of war," and Guantanamo was not, Bates said that that may pose some "practical obstacles" to court review of their cases. But, he added, "those obstacles are not as great" as government lawyers claimed, are "not insurmountable," and, anyway, "are largely of the Executive's choosing" by shifting the prisoners from elsewhere to Bagram.

That *should* be an important point. There's a world of difference between capturing someone in a theater of war, and transferring 'em there to frustrate habeas juridiction.

The latter is just the kind of gamesmanship that led to the gradual expansion of habeas jurisdiction at common law, if I'm remembering my internet crash-course on the subject correctly ....
4.3.2009 10:43am
martinned (mail) (www):
As I recall, there was an amicus brief in the Boumediene by a number of legal historians who argued that at common law the writ ran essentially to all of the king's jailors. I haven't read this Bagram ruling yet (I'm about to), but I'd imagine that would be the most practical approach: fundamentally, the writ can run to Bagram if there is a US-run detention facility there, but a POW can't ask for it.
4.3.2009 10:46am
Richard Aubrey (mail):
German and Italian POWs were shipped to the US because it was easier to feed them here than to ship the necessaries to Europe along with the huge amounts of other stuff necessary to fight a war.
But not all were shipped here.
So a question is whether there was a legal difference between the two groups who were separated as a frank matter of logistics.
Is a German captured in Germany and held in a POW camp in France subject to different laws than if he'd been captured in Belgium? Held in the US?
Seems that the current cases are splitting hairs that went unsplit several wars back.
4.3.2009 10:54am
Anderson (mail):
but a POW can't ask for it

Exactly. People who rattle off comparisons to our hundreds of thousand of German prisoners in WW2, etc., are choosing to ignore that those were POW's.

Declare everyone at Bagram a POW, and you're set! Except then you have to treat them like POW's ... quelle horreur.
4.3.2009 10:55am
Oren:

Bagram is in such an "active theater of war" and the Court recognizes that the path to providing habeas review for these petitioners is likely strewn with more practical obstacles than was the case for detainees at Guantanamo.

Sure, but many of the detainees were not captured in an "active theater of war" (colloquially "on the battlefield") but rather captured elsewhere and moved to the battlefield.


Except that the one Afghani involved claims to have been captured elsewhere. Yet the judge ruled that Afghanistan has enough of an interest over Afghani nationals that at least for now his claim must fail.

That's true. I suppose you have to claim both capture not on a battlefield and not be a citizen of the country in which you are imprisoned.
4.3.2009 10:56am
Oren:


Is a German captured in Germany and held in a POW camp in France subject to different laws than if he'd been captured in Belgium? Held in the US?

I think the ruling supports that notion -- if he was captured on the battlefield he is POW irrespective of where he is held.
4.3.2009 10:57am
martinned (mail) (www):
@Anderson: Even then there is the question of who should prove what in case the detainee doesn't think he should be considered a POW. But it seems to me that this can be settled between reasonable adults.
4.3.2009 10:59am
BenFranklin (mail):
The problem with enacting policy from the bench is that you always have to keep going back to carve out the particular exception you wanted. The Supremes wanted to create a law to apply only to Guantanimo because they were getting heat from their left wing buds over it. Unfortunately, now they have to go back and create exceptions. In any future wars what they have done will be ignored entirely because there simply won't be a political issue at stake.

It will be interesting to see what this does to the Geneva Convention which expressly forbids civilian trials for combatants.

But the US military will adjust and take fewer prisoners. The ones they have to take will be turned over to allies who have fewer qualms about such things and the net effect will be that detainees will receive a lower standard of treatment and fewer of them will live. I hardly think this is what the court had in mind but the bench is a blunt instrument to use in the drafting of new laws so it is hardly surprising.
4.3.2009 11:00am
Anderson (mail):
Damn, I'm getting good ... I clearly sensed Richard Aubrey's comment as its data packets were percolating through the intertubes ...

A German who is a POW is a POW is a POW. (Stein, J.)
4.3.2009 11:00am
Buffalo Law Review (mail) (www):


I would invite people to read the above lecture by Federal District Court Judge James Robertson published in the Buffalo Law Review. The article entitled "Quo Vadis, Habeas Corpus?" was among the winners of the annual Green Bag award for excellence in legal writing.

Judge Robertson saw all of this coming and recounts the history of the writ, including how the American usage of the writ is a "civics" lesson in the system of checks of balances.
4.3.2009 11:03am
martinned (mail) (www):

But the US military will adjust and take fewer prisoners. The ones they have to take will be turned over to allies who have fewer qualms about such things and the net effect will be that detainees will receive a lower standard of treatment and fewer of them will live.

Americans must be so proud of their government.
4.3.2009 11:04am
Oren:

But the US military will adjust and take fewer prisoners.

Anyone captured by the US military is cannot be covered by this ruling in any instance. If you had read the ruling, you'd know that because it's in the first paragraph of background:

All four claim to have been captured outside Afghanistan and contest their designation as enemy combatants.

So, either our military is running combat operations outside Afghanistan or you are bloviating.
4.3.2009 11:10am
Anderson (mail):
Americans must be so proud of their government.

Sure -- that's why the author of the murderous sentiments you quote, calls himself "BenFranklin." After the guy on the $100 bill, I suppose.
4.3.2009 11:15am
sg:
"The Supremes wanted to create a law to apply only to Guantanimo because they were getting heat from their left wing buds over it."

BenFranklin, you know this how?
4.3.2009 11:17am
Richard Aubrey (mail):
Oren.
Or maybe the four are lying, having been told that faking the US judiciary into terminal grid lock is a valuable war aim.
To return to WW II. Is a member of the Waffen SS a POW? The Germans already had a Wehrmacht. The latter did not command the former. The Waffen SS were a party police force trained and equipped for conventional combat.

How about deserters? Hitler commanded that nobody retreat from North Africa. That meant that the teeth--combat formations--were losing guys and the rear echelons not so much so the terrible effort to supply the North African theater was grossly skewed in support of non-combat guys.
Having learned that lesson, when they retreated from Holland, they left the cooks, clerks, and jerks, ash&trash,retrieving only their combat formations.
The left-behinds deserted and Dutch mothers, being mothers, gave them civilian clothes belonging to their sons, many of whom were in the east in the colonies fighting or captured by or dead fighting the Japanese.
Did these guys qualify as POWs? Then, they did.
Now?
How about German civilians who were members of the occupation government?
Seems we're a lot more finicky these days.
Well, once you grok that Bush is no longer president, I imagine you'll find this tiresome and ignore it.
4.3.2009 11:22am
martinned (mail) (www):

Seems we're a lot more finicky these days.

Quite apart from the (lack of) merit of your other arguments, it is certainly true that we're more finicky these days. Since WW II, quite a bit of new law has been added to the laws of war, like arguably the rulings of the Nuremberg and Tokio tribunals, the Geneva Conventions of 1949, the 1977 protocols to the Geneva Convention, the ICCPR, the Convention Against Torture, etc., etc., etc.

Most people tend to think this is a good thing, but apparently this is not a universally held position.
4.3.2009 11:34am
Anderson (mail):
Or maybe the four are lying, having been told that faking the US judiciary into terminal grid lock is a valuable war aim.

Right you are. You may also have noticed that not every domestic applicant for habeas deserves it. In fact, I would guess a substantial majority of habeas applications are denied.

That is why a habeas application is not a get-out-of-jail-free card, but rather, an opportunity for a "hearing" where the applicant and his captor can put on "evidence" to let the court decide what the facts are.
4.3.2009 11:40am
Richard Aubrey (mail):
martinned.
You're welcome. Just in case I forgot.
Anyway, what about POW law has been improved since the Germans decided to conquer your country to amuse themselves while waiting for a tee time?
Is there/should there have been a difference in the legal situation of the Wehrmacht versus that of the Waffen SS?
Where did German civilians who were part of the occupation government fit?
German police? Gestapo?
How about non-official Germans who were there as merchants and other opportunists?
Once the French government was re-established on French soil, who owned the POWs captured by the Brits or Americans and held in France?
Did it make a difference where they were captured?
None of these questions seemed particularly important at the time. Why similar questions now are suddenly important is not easily explained, save that it has the happy effect of hobbling the war effort.
What about the post-war laws you mentioned has improved the lot of POWs? Speaking in actuality, not theory. IOW, I'm not interested in hearing about how al Q now is enjoined to treat our guys better. Or how they're not, not being an army. Or how we can't treat them badly because they treated our guys badly because they're actually an army, sort of, or just enough.
Or how they're simultaneously soldiers so that they can have the privileges of POWs but criminals so they can have trials.
4.3.2009 11:50am
Steve:
The fundamental absurdity here involves capturing bad guys, intentionally moving them halfway around the world to be detained in a war zone, and then arguing, "Hey, you can't apply habeas here, it's a war zone!"

There's a basic principle that the courts try to stay well clear of interfering with ongoing military operations. That means that if the military is waging war in Afghanistan, the federal courts aren't inclined to stick their noses into Afghani detention facilities to see if the military is holding everyone lawfully. The problem arises when a devious administration decides, "Hmm, since the courts aren't going to inquire into detentions in Afghanistan, let's move everyone into Afghanistan!"
4.3.2009 11:51am
C. Gittings (mail) (www):
[sigh]

1) I wouldn't be so sure that DOJ's current posture in these cases actually reflects the Obama administration. The people litigating the cases have not really changed, and the Obama "review process" is still doing whatever it's doing.

2) You'd think they'd have gotten some positive guidance, but the vibe I'm getting is they haven't gotten much. The did get an order from Obama not to rely on any of the OLC memos written by Bush, but that message seems to have lost something in translation, because the briefs still reflect the Addington-Yoo approach underneath the superfical linguistic changes.

3) What Obama really needs to do here is fire ALL of the lawyers working on these cases and assign competent people, but that not even half of what he needs to do because most of the problem is located at DoD, not DOJ, and the biggest problem of all is simply that he accepted the decision to retain Gates and Petraeus et al.

And I suspect that DoD has lot more influence over the detainee cases at DOJ than they should have even under the new administration. The institutional arrangements and the people running things are pretty much the same. There have been positive changes, but not nearly enough.

4) In essence, I think the new administration has the right idea about the legal side of things, but have gone seriously astray regarding these pointless phony wars. They'll never get any of this stuff by thinking that any part of the Bush administration policies were sound. The reality is that this situation is NOT a war, and treating it as one doesn't get you anything, it just wastes effort and resources and makes the underlying problems worse.

That's been true since 2001, and all the evidence supports that view -- but only if you actually bother to look at the evidence objectively.
4.3.2009 12:05pm
martinned (mail) (www):
Since I'm not in the mood for some actual work, why not amuse myself with some ius in bello, courtesy of Richard Aubrey:


Anyway, what about POW law has been improved since the Germans decided to conquer your country to amuse themselves while waiting for a tee time?

The Geneva conventions. You should read them someday.

Is there/should there have been a difference in the legal situation of the Wehrmacht versus that of the Waffen SS?

Where exactly is it written that a country can have only one army? Germany had two, and legally they were the same, except to the extent that the members of the (Waffen) SS could be considered ipso facto accomplices to war crimes.

Where did German civilians who were part of the occupation government fit? German police? Gestapo?
How about non-official Germans who were there as merchants and other opportunists?

I'm sure you have a nice precedent from WW II, but under current law they are all civilians.

Once the French government was re-established on French soil, who owned the POWs captured by the Brits or Americans and held in France?

I'm not sure why you write "owned". I'm pretty sure they weren't slaves. POW are held by whoever runs the POW camp.

Did it make a difference where they were captured?

Not as long as they were captured on the battlefield. (Which is exactly what Boumediene and this Bagram ruling also say.)

None of these questions seemed particularly important at the time. Why similar questions now are suddenly important is not easily explained, save that it has the happy effect of hobbling the war effort.

Hang on, are you saying that the detainees who were the plaintiffs in this Bagram case are POWs? That's news.

What about the post-war laws you mentioned has improved the lot of POWs? Speaking in actuality, not theory. IOW, I'm not interested in hearing about how al Q now is enjoined to treat our guys better. Or how they're not, not being an army. Or how we can't treat them badly because they treated our guys badly because they're actually an army, sort of, or just enough.

Here's a list of US servicemen and women captured by the Iraqis during desert storm. Isn't the 3rd Geneva convention a wonderful thing?

Or how they're simultaneously soldiers so that they can have the privileges of POWs but criminals so they can have trials.

Actually, our friend Bush jr. seemed to argue that they were neither POWs nor criminals. People like me pointed out that there is no third category, so would he please choose. Imho, most of these detainees cannot reasonably be considered soldiers, and are therefore civilians. But I'll settle for their treatment as POWs.
4.3.2009 12:09pm
C. Gittings (mail) (www):
Richard,

Several things have changed:

1) The IMT Charter (1945)

2) Geneva 1949 replaced Geneva 1929.

3) WW2 was actually a war, whereas the Global War on Everything in General and Notinhg in Particular is just a bad idea and a fraud.

And Steve is quite right about the absurdity here. If you actually look at the laws of war, the way these detainees have been handled is a war crime in and of itself.
4.3.2009 12:12pm
Anderson (mail):
I wouldn't be so sure that DOJ's current posture in these cases actually reflects the Obama administration.

You are more optimistic than I am. But then, it's difficult to fathom what Obama's position is on the economy, an issue he's much more interested in than torture, indefinite detention, etc.
4.3.2009 12:13pm
Oren:

Or maybe the four are lying, having been told that faking the US judiciary into terminal grid lock is a valuable war aim.

I hear we have some sort of process that can decide which of two claimants is more likely to be correct.


To return to WW II. Is a member of the Waffen SS a POW? The Germans already had a Wehrmacht. The latter did not command the former. The Waffen SS were a party police force trained and equipped for conventional combat.

If he is captured on the battlefield, he's a POW.

If he is captured at home eating dinner with the kiddies, he's not (that's not to say you can't hold him, of course).


How about deserters?

Same answer -- the location of capture determines the substantive rule.
4.3.2009 12:14pm
John Moore (www):

Quite apart from the (lack of) merit of your other arguments, it is certainly true that we're more finicky these days. Since WW II, quite a bit of new law has been added to the laws of war, like arguably the rulings of the Nuremberg and Tokio tribunals, the Geneva Conventions of 1949, the 1977 protocols to the Geneva Convention, the ICCPR, the Convention Against Torture, etc., etc., etc.

Most people tend to think this is a good thing, but apparently this is not a universally held position.


Most lawyers and diplomats may think this is a good thing. I think you would have a very different finding if you checked with ordinary Americans.

I think agreement with ever-tightening restrictions on war-fighting powers during a time when the enemy obeys the laws of war not at all is directly proportional to distance from the battlefield, closeness to legal and diplomatic professions, and lack of military experience.

In other words, those "most people" live ignore the real world in favor of intellectual abstractions that are too often wrong.
4.3.2009 12:23pm
C. Gittings (mail) (www):
Anderson, it's not optimism -- things just don't add up.
4.3.2009 12:24pm
sg:
C, Gittins,
Yeah, Petraeus and Gates are real fascists, aren't they? And that surge was a real failure too.

Oren,
I don't know what you mean by "the battlefield," but someone captured there who is not in uniform, etc., is not a POW.
4.3.2009 12:24pm
martinned (mail) (www):

Most lawyers and diplomats may think this is a good thing. I think you would have a very different finding if you checked with ordinary Americans.

Given how many ordinary Americans have served in the armed forces, or have a loved one serve in the armed forces, I think they are happy to know there are laws protecting POWs.
4.3.2009 12:25pm
Oren:

I think agreement with ever-tightening restrictions on war-fighting powers during a time when the enemy obeys the laws of war not at all is directly proportional to distance from the battlefield,

Wait wait wait. I've been told 1000 times that every inch of the US (and the entire world, for that matter) is "the battlefield". That means that those Americans are right there, in the thick of the battle, every day when they go to work, to the grocery store or their own backyards and therefore have zero "distance from the battlefield". That's why Padilla and Al-Marri can be thrown in a brig, right?

Pick a position and stick to it. Either "battlefield" has its usual meaning in the English language (An area where a battle is fought) or it has some newfangled, hard to quantify meaning that is whatever it needs to be for your current argument.
4.3.2009 12:27pm
Richard Aubrey (mail):
Oren. You're not clear. If a member of the Wehrmacht was captured while on leave at home, is his situation different from that of a Waffen SS guy found at home?
If so, why?
"Why?" in the legal sense, since the legal sense seems to amuse you, and "Why?" in the practical sense--to stretch your mind.
4.3.2009 12:30pm
C. Gittings (mail) (www):
John,

In the real world, I think ordinary people understand things like basic fairness and human decency, rogue cops and lynch mobs.... But in any case, you only speak for yourself, just like everyone else.

And if you think 1 + 1 = 2 is just an "intellectual abstraction" that stands in the way of robbing someone you consider an enemy, what does that make you?
4.3.2009 12:31pm
Oren:


Oren,
I don't know what you mean by "the battlefield," but someone captured there who is not in uniform, etc., is not a POW.


The battlefield is an area (and the area directly around it) in which a battle is fought. Like, for instance, Helmand province in Afghanistan.

As to the uniform issue, I'll grant that I was imprecise. I only mean that the military ought to be allowed summary detention (e.g. no review beyond what the DOD wants) for anyone captured in and around a battlefield.

Those people captured in, say, Yemen, where there are no battles, ought to be entitled to a cursory hearing in front of a neutral arbiter in which the DOD present something justifying their continued detention. It shouldn't matter if the detainee was captured in Yemen and then taken to GTMO or Bagram.
4.3.2009 12:32pm
sg:
Oren,
I think I agree with our clarification. Now I am wondering, if, say, a fighter out of uniform is captured on the battlefield, e.g. a terrorist or an alleged terrorist, do you agree that he is not a POW and if so do you then classify him as a civilian or as an enemy combatant or some such thing?
4.3.2009 12:40pm
sg:
Sorry, I meant "your" clarification.
4.3.2009 12:40pm
Oren:

Oren. You're not clear. If a member of the Wehrmacht was captured while on leave at home, is his situation different from that of a Waffen SS guy found at home?
If so, why?
"Why?" in the legal sense, since the legal sense seems to amuse you, and "Why?" in the practical sense--to stretch your mind.

There is no difference, since the SS guy is a combatant because the SS took place in, wait for it, combat.

A combatant can be seized anywhere and detained until the end of hostility. He is, of course, entitled by the GC to a hearing about his status.

The point is that the plaintiffs here make two important claims:
(1) They are not combatants.
(2) They were not captured on or around a battlefield.

Given both of those things, they are entitled to a cursory hearing to flesh out those claims.
4.3.2009 12:43pm
Oren:

Now I am wondering, if, say, a fighter out of uniform is captured on the battlefield, e.g. a terrorist or an alleged terrorist, do you agree that he is not a POW and if so do you then classify him as a civilian or as an enemy combatant or some such thing?

Whatever the classification, he has no right to challenge it in US courts because the military has the right to make battlefield captures.
4.3.2009 12:44pm
C. Gittings (mail) (www):
sg,

The surge?

Give me a break. What exactly was the purpose of the surge?
What exactly was the purpose of the invasion of Iraq?
Why are we still there?

The surge was the military equivalent of masturbation. I don't think of Gates and Petraeus as fascists (that would be Cheney and Addington, etc), but as incompetent fools.

The war in Iraq was and is nothing but complete waste of time. It absolutely blows my mind that people can look at the last seven years of follies, failures, and despicable crimes and think we could or or did "win" anything thereby. All it shows is how little such people actually understand history and warfare.
4.3.2009 12:45pm
Anderson (mail):
I think you would have a very different finding if you checked with ordinary Americans.

Ordinary Americans elected the senators and presidents who entered into those treaties, and the Congresses and presidents who enacted those statutes.

You'll forgive me if I take that as a better estimate of what "ordinary Americans" prefer.

(If a correctly-worded opinion poll reaches a different result, then I suppose you have made an evidentiary point in favor of representative democracy as opposed to direct democracy. Just think, if the U.S. were governed by referenda, we'd be in the same great political shape that California is in today.)
4.3.2009 12:49pm
Anderson (mail):
And that surge was a real failure too.

Is that supposed to be irony?
4.3.2009 12:53pm
sg:
Uh, yes, it was irony. Unfortunately the positions of C. Gittings are so extreme that debating with him would be a waste of time.
4.3.2009 12:56pm
Anderson (mail):
The surge was the military equivalent of masturbation.

I don't think that's a fair assessment. The premise of the surge was to ratchet down the violence in Iraq in order to give the political actors an opportunity to resolve those issues amongst them which were generative of much of that violence.

As my link above suggests, I think Thomas Ricks is as good a source as we've got on this subject, and his last book demonstrates that, militarily, the surge was a (somewhat surprising) success, but that the political reconciliation did not happen.

That makes the surge a failure. Possibly it was doomed from the start, since the exact connection b/t decreased violence and a political resolution was never very clear. But Petraeus and Gates are not diplomats, and I think they held up their end.
4.3.2009 12:59pm
Anderson (mail):
I don't think "torture is illegal and should be punished" or "no one should be held indefinitely without due process of law" are extreme positions. An extremist would be someone who disagreed with those positions.

As for the Iraq war, as my last comment implies, I do not entirely agree w/ Mr. Gittings. It was a stupid war undertaken on false premises (or pretenses), but at least since 2006, I think our troops (who did not ask to go) have been doing the best they can with it -- hampered, it seems, by the political failures of President Bush.
4.3.2009 1:02pm
sg:
Anderson,
If that is really what Ricks says, it sounds like a gross exaggeration to me; in any case his is far from the only informed point of view and many such observers who know far more about Iraq than I do would disagree with the idea that there has been no political reconciliation. But you are certainly correct in saying that C. Gittings is unfair.
4.3.2009 1:03pm
Dreadnaught (www):
C. Gittings adds a great deal to this discussion. You know its going to be good when someone uses fascist. Instantly doubles one's credibility.
4.3.2009 1:04pm
sg:
And I would add that while Anderson is right that up to 2006 our soldiers were hampered by the mistakes of the Bush administration, starting in 2007 they were very nearly hampered by the mistaken attempts of the Democratic Party to pull the plug on the surge, which I think turned out to be a tremendous and unexpected success.
4.3.2009 1:05pm
Anderson (mail):
starting in 2007 they were very nearly hampered by the mistaken attempts of the Democratic Party to pull the plug on the surge

What, exactly, did the Democrats prevent Petraeus from doing?

As for Ricks, see his post I've linked above, and his blog generally -- or better, read The Gamble. If you know of more credible sources, I am interested in them; I don't credit Ricks uncritically, but I find him very persuasive.
4.3.2009 1:16pm
sg:
Anderson,
I said attempted to prevent, not succeeded in preventing.
4.3.2009 1:18pm
C. Gittings (mail) (www):
"Uh, yes, it was irony. Unfortunately the positions of C. Gittings are so extreme that debating with him would be a waste of time."

You bet it would: then it would be obvious that you can't answer my question about the purpose of the war.

As for "extreme", you're the one making excuses for a needless, criminal war of aggression that resulted in countless thousands of deaths or injuries, and millions of people being driven from their homes simply to satisfy the malicious blood lust and demented political delusions of George Bush, Dick Cheney, and their political supporters.

And YOU are calling ME and extremist??

What's extreme here is your nonsense. I'm just honest.
4.3.2009 1:30pm
MarkField (mail):

Just think, if the U.S. were governed by referenda, we'd be in the same great political shape that California is in today.


What's Mississippi's excuse? :)


C. Gittings adds a great deal to this discussion. You know its going to be good when someone uses fascist. Instantly doubles one's credibility.


This from someone whose sole "substantive" comments on this thread were the suggestions that (a) Judge Bates go to Afghanistan; and (b) Miranda warnings would apply on the battlefield.
4.3.2009 1:32pm
Bob from Ohio (mail):

I think they are happy to know there are laws protecting POWs.


What an infantile statement.

Do you know what happens to Americans who are captured by Al Queda? Soldiers or civilians.

The US soldiers captured in Iraq were protected how? Lets ask their families. Maybe at the cemetary.

The Geneva Conventions, Convention on Torture etc. do not protect Americans at all.

Not in Korea, not in Vietnam, not now.
4.3.2009 1:32pm
Richard Aubrey (mail):
Ref Germany and two armies.
Germany did not have two armies. Germany had the Wehrmacht and the party had the SS. They were required to, sort of, cooperate. From time to time, toward the end of the war, they fought each other. The SS also included their Battle Police who acted like the USSR's NKVD, shooting soldiers out of hand who were not with their units and who didn't have paperwork allowing it. Or just shooting laggards.
Not like the US Army and the USMC whose chain of command eventually converges.
So that brings up the question, using a historical precedent, of treating a non-national army guy in arms as if he were a legitimate soldier.
IMO, something from that era applies.
Or, to put it another way, we have a new situation which cannot be handled by using the old means. Of course, the means, new and old, are deployed so as to cause maximum difficulty for the war effort.
Graham Greene once said that he held no brief for the USSR, but "the enemy of my enemy is my friend and my enemy is Ronald Reagan". Why that was so was left unsaid.
So, no, I don't see many folks who love the jihad, but I do see a number who can't stand the thought of redstate rednecks actually doing something successful.
Not all lawyers are Lynne Stewart and Ramsey Clark.

But, apparently, enough.
4.3.2009 1:40pm
C. Gittings (mail) (www):
Richard,

Both the Wermacht and the Nazi Party were under the command of Hitler.

But what success are you talking about??

The Bush administration was by far the worst this country has ever had, and their handling of the military was a disaster from start to non-finish. Raping a defenseless country like Iraq isn't anything to brag about, and neither is the preposterously incompetent occupation that followed the invasion.
4.3.2009 1:53pm
Richard Aubrey (mail):
CG.
I didn't say anything about success.

However, I think you and juke can sit in the same seat from now on.

Adios, my friend.
4.3.2009 2:18pm
C. Gittings (mail) (www):
Richard,

What you said was:

"So, no, I don't see many folks who love the jihad, but I do see a number who can't stand the thought of redstate rednecks actually doing something successful."

And I repeat:

What success??
4.3.2009 2:36pm
Anderson (mail):
What's Mississippi's excuse?

We are a *model* state compared to California, which is in danger of supplanting Arkansas and Alabama as the states Mississippi is most grateful for.

(I visited the Sacramento area last summer and observed vast expanses of dry brown grass. "When's the last time it rained here?" I inquired. "About 6 months ago," I was told. People: if it doesn't rain where you live, then maybe you should live somewhere else.)

they were very nearly hampered

Oh, okay. Very-near hampering. Add that to the list of Democratic offenses against man and God.
4.3.2009 3:00pm
Oren:

So that brings up the question, using a historical precedent, of treating a non-national army guy in arms as if he were a legitimate soldier.

The organizational posture is irrelevant. If the SS participates in battles, they are combatants. EOL.
4.3.2009 3:26pm
MarkField (mail):

We are a *model* state compared to California, which is in danger of supplanting Arkansas and Alabama as the states Mississippi is most grateful for.


If by "model" you mean "state we're (apparently) most determined to emulate", then I'd have to agree.
4.3.2009 3:59pm
Anderson (mail):
Yeah, *that* definition of "model."

Thank god, whatever else is wrong with this state, we don't have constitutional amendments by simple majority popular vote. I would have to move to a haven of sanity, like ... Louisiana?
4.3.2009 5:39pm
John Moore (www):

Given how many ordinary Americans have served in the armed forces, or have a loved one serve in the armed forces, I think they are happy to know there are laws protecting POWs.


Idiotic. This exactly illustrates my point about those not having real world experience are least likely to be clueful on this subject.

Obviously you never went through SERE school or equivalent training. Those of us who served knew damned well the enemy would ignore those laws, and they have - every enemy since WW-II (and the Japanese during WW-II).
4.3.2009 6:46pm
Anderson (mail):
Those of us who served knew damned well the enemy would ignore those laws, and they have - every enemy since WW-II (and the Japanese during WW-II).

That's why I don't push the "golden rule" argument vs. torture. We reject torture because of who we are, not because of who the other guys are.

That said, I note again that the laws and treaties protecting POW's and prohibiting abuse, etc., are of fairly long standing.

If anyone thinks we should be able to torture POW's, etc., perhaps a letter to their congressman is in order?
4.3.2009 7:17pm
C. Gittings (mail) (www):
"If anyone thinks we should be able to torture POW's, etc., perhaps a letter to their congressman is in order?"

Every once in a while the thought crosses my mind that maybe we should torture some Republicans until they confess...
4.3.2009 8:21pm
Richard Aubrey (mail):
If the SS were a legitimate Army, so would ACORN be, if somebody bought them some tanks.
Hmm. Don't mention this.
4.3.2009 10:26pm
Oren:

If the SS were a legitimate Army, so would ACORN be, if somebody bought them some tanks.

Of course, if they had tanks and drove around getting engaged in tank battles with the enemy (for instance, quoting the wikipedia page):

In March 1945, the X SS Corps was encircled by the 1st Guards Tank Army, 3rd Shock Army, and the Polish 1st Army in the area of Dramburg. This pocket was destroyed by the Red Army on 7 March, 1945.[103][104] On March 8, 1945 the Soviets announced the capture of General Krappe and 8,000 men of the X SS Corps.[105]

Then they would obviously be combatants, having engaged in combat usually has that effect.

Are you seriously trying to be dense or does the criterion of engaging in combat really confuse you that much?
4.4.2009 3:24am
Richard Aubrey (mail):
Oren.

Are you trying to be dense? Did I ever say the Waffen SS did not participate in combat? I don't get it. What is the benefit of misrepresenting something I said when it's all available to anybody who wants to read it.

I don't need Wiki to know this stuff. If I have a hobby, it's been military history since I was a kid, particularly about WW II, since I grew up surrounded by its veterans.

The point is not whether the SS participated in combat but whether they count as a legitimate army for legal purposes.

There are any number of groups which don't count as legitimate armies for various reasons, many described in the GC. That's why we're having the discussion right now.

Clearly, participating in combat doesn't make one a legitimate soldier, or we wouldn't have opponents of Gitmo crying that these guys need to be tried as criminals. The object of the opponents is to get the guys off, no matter their actions or actual military status. The exigencies of battlefield capture mean evidence suitable for a trial is most unlikely to be available. Presto, the guys are either acquitted or there is no trial at all. You win.
We lose, but what the hell, that's the point, isn't it?
4.4.2009 10:02am
C. Gittings (mail) (www):
Richard,

When exactly has the US government ever claimed that any detainee at Gitmo was a POW?

When exactly has any of them been treated as one?

As for what motivates this particular opponent of Gitmo, it's uncomplicated: I want to enforce the laws of the United States. What motivates you?
4.4.2009 10:30am
Anderson (mail):
Are the Waffen SS less worthy of emulation than the Gestapo, then? A pleasant surprise.

Regardless, Mr. Aubrey's point requires illustration. Were Waffen-SS members not, in fact, treated as POW's by the Western Allies?

I can't speak for its authority, but this interesting page suggests that Waffen-SS prisoners were indeed treated as POW's, though some were held longer than other POW's after the Nuremeberg adjudication that the Waffen-SS was a criminal organization.
4.4.2009 10:45am
C. Gittings (mail) (www):
Anderson,

Yes, they were treated as POWs. Very serious consideration was given to declaring the SS a criminal organization subject to some form of collective punishment, but in the end they didn't proceed with it. That's all part of the history of the IMT.

The important things to understand here are:

1) There is nothing in Geneva III POWs that prevents anyone from being tried for war crimes.

2) One of the most basic benefits of POW status is that it protects belligerents from prosecution as criminals, which under the traditional laws of war, is exactly what an unprivileged belligerent is.

3) The only thing motivating the arguments of apologists like Richard and Bart is the need to fashion a sophist rationalization for denying accused criminals a fair trial by imprisoning them indefinitely at the whim of their accusers -- which is a war crime in and of itself.
4.4.2009 12:05pm
Richard Aubrey (mail):
Anderson,
There's an old saying that Wehrmacht prisoners claimed that, at least, they weren't SS.
SS prisoners claimed that, at least, they were Waffen SS and not those other, worse guys.
And the SS not in combat formations claimed that, at least, they weren't Gestapo.
Was the thinking about treating SS differently based on their behavior--and if so was the Waffen SS included--or was it based on their legitimacy?
4.4.2009 12:32pm
John Moore (www):

That's why I don't push the "golden rule" argument vs. torture. We reject torture because of who we are, not because of who the other guys are.

Good for rejecting one straw-man. How about the argument that "torture doesn't work?" Do you use that equally fallacious one?

If not, I agree with your analysis. Unfortunately, IMHO, "who we are" is rapidly becoming "ivory tower idealists who, left alone, would forfeit their civilization and its heritage" to those who are not so perfect.

The debate is framed by "torture" opponents in a binary fashion - it is torture or it is not; we torture or we do not. Likewise, the framing about extending civil rights to terrorists is equally polarized.

If you go out and ask ordinary Americans (i.e. who we really are) whether we should torture, the majority would say no. If you described water-boarding and asked them if it should be applied to KSM, the majority would say yes.
4.4.2009 1:43pm
Richard Aubrey (mail):
My interest in the legal fate of the SS has a couple of questions.
One is whether, in the current situation, which is to say, a war started on the watch of a Texas republican and thus not one which can be supported by the Right Sort of People, a current version of an SS would be provided special, which is to say, lenient treatment.
Figure that the SS was not an army--which would be argued either way depending on convenience--and thus not subject to the laws of war--which would be argued either way depending on convenience.
Just like what is argued about the Taliban and al Q
The second is to make the case that some of these considerations went without much consideration during and after WW II without causing various atrocities by lack of parsing.
I do recall hearing that at a Chicago military installation, where Americans liberated from German camps were processing through, the boys discovered some of the mess workers were SS, rioted, and killed them. Steak knives. The Wehrmacht prisoners weren't hated so much. Perhaps the SS should have been treated differently.
However, their treatment as it was seems a useful source of precedent.
Problem with calling the Gitmo Goons POWs is then we get to keep them until the war is over. Lefties who insist on POW privileges do so until that little thingy is mentioned, and then they go nuts insisting on criminal status.
4.4.2009 2:57pm
John Moore (www):
RA - THe war is over. It is now just an Oversease Contingency Operation.

It's pretty clear that the Obama administration doesn't want the fact of a war to restrict their options, so they renamed it.
4.4.2009 10:23pm
Richard Aubrey (mail):
JM.
Yeah. Never thought of that.
What is the Law of Overseas Contingency Operations?
Anybody got a cite?
4.5.2009 7:42am
Dreadnaught (www):
Richard Aubrey makes a great point. Many demand that the people at GTMO are POW, that is until they are reminded that a POW may be held until the end of hostilities. Has Al Qaeda issued a ceasefire? Then the party line changes to: they must be charged or released.
4.6.2009 2:50pm
Oren:
Dreadnaught, I'm fine with declaring them POWs and then holding them to the end of hostilities, if you do so consistently from the moment of capture. Unfortunately, POW status confers substantial rights that we don't seem to want to give them.

Pick a status and then stick with it.
4.6.2009 3:42pm

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