Should terrorists have military trials?

[Holiman]

Who captured the terrorists? - The military.

Now, Obama is having them tried in a criminal court with all the protections granted by the US Constitution. Do you think the guy was read his Miranda rights? What do you think the chances are that the judge tells the govt to set this man free because he wasn't read his Miranda rights? Or because the suspect was tortured in order to get a confession?


I started this post so as not to derail the other one, my answer to this is either the US is a nation of laws or a nation of might. If we believe in our laws then they are just and right for all men and women or they are not this is as simple as that. They commited murder on our soil so we judge them by our laws in our country, if this gives them 'undue' advantages you might want to ask yourself if you would wish different treatment if you were the person on trial(trial does mean not proven guilty btw).

The US has one of the best police forces in the world becuase of these protections. Our military while the greatest in the world has already proven itself utterly inept at producing confessions or obtaining useful information, this IS NOT the job of the military. Part of removing the 'policing the world' concept should be not asking our military to become police.

[Melchizedek]

I take it you're not familiar with the concept of enemy combatants, war crimes, military trials, etc.?

[kepstein8888]

Military trials are no good for the obvious reason that there are no checks and balances. The people who caught them are going to run the trial? How fair could that be?

If we try them in US courts, they won't get a fair trial, because juries will be composed of US citizens, who have been bombarded with terrorism on their TVs for the past 9+ years. So I don't think civilian trials are the soft touch that many people say it is.

An international court composed of people chosen from several countries might be the lesser evil. It would surely be influenced by politics, but at least it would be held on semi-neutral ground with a mix of jurors. It might also be a way for the US to help itself out of the PR mess it created for itself with Gitmo, torture, etc.

[Arkeph]

Here's an excellent movie quote (A Man for All Seasons)

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Gets the point across rather well, I think.

[Holiman]

I take it you're not familiar with the concept of enemy combatants, war crimes, military trials, etc.?


In the right circumstances I do think war crimes and military tribunals are called for and needed. The US has already chosen to thumb its nose after 9/11 on actual war crime trials as agreed upon by 130 nations and the UN, there is definately room to discuss this but the real question is what do you know about them that I do not ?

Here is what I do know about them
The plotting or carrying out of aggressive war had not been previously and explicitly called criminal, and the judges tended to define it very narrowly. A defendant was generally found guilty only if he had been involved in developing the policy, but not if he had simply carried it out.


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[phej]

Military trials are no good for the obvious reason that there are no checks and balances. The people who caught them are going to run the trial? How fair could that be?

There are checks and balances to military tribunals in the U.S. It is a parallel judicial structure that eventually leads to the Supreme Court: To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts. s

[Holiman]

There are checks and balances to military tribunals in the U.S. It is a parallel judicial structure that eventually leads to the Supreme Court: To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts. s



Sorry phej youll just have to read more about this, your link is to Court Martial's and UCMJ offenses of US troops which has no bearing on military tribunals;

Decisions made by a military tribunal cannot be appealed to federal courts. The only way to appeal is a petition for a panel of review (which may or may not include civilians as well as military officers) to review decisions, however the President, as commander-in-chief, has final review of all appeals. No impartial arbiter is available.

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[hubcap]

I started this post so as not to derail the other one, my answer to this is either the US is a nation of laws or a nation of might. If we believe in our laws then they are just and right for all men and women or they are not this is as simple as that. They commited murder on our soil so we judge them by our laws in our country, if this gives them 'undue' advantages you might want to ask yourself if you would wish different treatment if you were the person on trial(trial does mean not proven guilty btw).
I believe in our laws.

The US has one of the best police forces in the world becuase of these protections. Our military while the greatest in the world has already proven itself utterly inept at producing confessions or obtaining useful information, this IS NOT the job of the military. Part of removing the 'policing the world' concept should be not asking our military to become police.
Herein lies a large part of the dilemma. The military is not a police force, nor is the police force a military unit. The military is not trained to, nor should they be, to bring criminals to justice. The police force has no jurisdiction outside the borders of the United States, and as far as I know the FBI can work in with local and national law enforcement when operating on foreign soil, but have no authority to actually arrest anyone. When operating in this capacity the suspects when apprehended are subject to local laws which in many nations means they can be tortured in order to gain information and or confessions. When this occurs and we subsequently extradite the subject to the United States we are complicit in torture even though it didn't occur on our soil which means our laws are in fact a facade.

When terrorists are captured by the military on foreign soil they are not read Miranda rights, they don't get a phone call, or an attorney, nor do they have the "right" to remain silent. They may in fact be subjected to coercive techniques in order to extract information. Now, some want to bring them back to the United States and try them criminally. I'm not a legal professional, but I can see how this could turn into a huge debacle as a result of the denial of Constitutional rights to enemy combatants.

Philosophically, I believe it to be in the best interest of the nation, and its citizens to treat these men as what they are...........enemy combatants. Whether you believe they are criminals or combatants.........they believe they are combatants. We need to get the message as a nation, that those people consider themselves to be at war with us.

[Holiman]

You make some great points I cannot say this is an easily solved issue. To your last point first enemy combatants, can we just kill them? Have you been on a battlefield it doesnt lead to cool heads and well thought out decisions. There are numerouse examples of how unfair such trials will/would be we must have laws or chaos ensues.


Military Tribunals have issues since the US ignored international rules and laws we helped form in the UN. The problem with international law is holding ourselves to the same standards as we would hold others to. If you read about this youll find the main objection of the bush administration was fear that US members would be tried as well.

This goes right back to might vs right, which would we choose either we live within the laws we would rule ourselves by or admit we are hypocrites on a world stage.


New laws should be considered but the US has used this system (trial within the US) and it has worked. The true danger lies in our already documented complicitness in torture, kidnapping and removal of basic human rights of suspected terrorists. Do you really think that more of the same is going to move us forward ? History is full of examples of those with power using it recklessly and uncaringly of those whom are tread upon and it has never stopped them from rising up and striking back.

There most definately is a message in this and if you think going to war with the middle east jihadists is a solution I suggest you merely look at how long 'holy wars' have been raging.

[hubcap]

One of the challenges in resolving this dilemma is the fact that "terrorists" are in a unique category. The Geneva Conventions do not apply to "terrorists", nor does the United States criminal code adquately cover acts of "terrorism" as relates to their capture by the military. Acts of terrorism are a relatively modern phenomenon and the legal system has yet to evolve to deal with the situation.

Philosophically we find our political leaders divided on how to treat terrorists. The Clinton administration chose to deal with them as criminals, while the Bush administration chose to deal with them as "combatants". Now we have the Obama administration reverting back to treating them as criminals.

It is my opinion that the criminal justice system cannot provide terrorists, who are captured by the military on foreign soil, constitutional protections afforded to criminals who are caught by domestic law enforcement for the reasons I've already mentioned above. The Geneva Conventions do not adequately address the issue of non-uniformed combatants who are not representing a sovereign nation.

I do not advocate the torture of those captured on the battlefield, but until the status of captured "terrorists" is specifically addressed by international agreement it seems that the gray area will permit each administration to apply their own views to the issue as they deem appropriate.

[Arkeph]

Philosophically, I believe it to be in the best interest of the nation, and its citizens to treat these men as what they are...........enemy combatants. Whether you believe they are criminals or combatants.........they believe they are combatants. We need to get the message as a nation, that those people consider themselves to be at war with us.

I think a much more powerful argument can be made that it's in our best interest to deny them that legitimacy.

[hubcap]

I think a much more powerful argument can be made that it's in our best interest to deny them that legitimacy.
How is it in our best interest to deny them the legitimacy of being an "enemy of the United States"? What powerful arguments?

If they are not "legitimate" combatants then we have no justification in using our military against them, in my opinion. Whether someone is a legitimate "combatant" or not has no bearing on how potentially deadly they may be.

[Arkeph]

Well, for instance, that a single man can be considered a significant enemy of the "Great Satan" is a pretty big deal to some people. Also, the terrorists would likely be given status as POWs in our prisons, and would be afforded Geneva Convention rights accordingly. They'd be able to dismiss civilian casualties as collateral damage in a military conflict too. I agree that trying them as criminals would undermine the use of the military in that context, but they aren't being used solely for capturing terrorists.

I don't think I really understand what your position is, though. Why use military tribunals if constitutional protections are insufficient in federal court? How are the Geneva Conventions deficient? (detainees are under article II or III, as judged by a tribunal. No exceptions).

(As a side note, terrorism is actually an old and fairly common phenomenon (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.). It's the potential deadliness of modern terrorism that you're probably referring to when you say terrorism is a new phenomenon.)

[Angel1]

You know, if we called these terrorists "Prisoners of War" then we could hold them forever without charge. This War on Terror is not going to end anytime soon and thus, by calling them "Prisoners of War", we could hold them until the war actually did end.

That being said, the main problem (perhaps nearly insurmountable) with trying terrorists in civilian courts is that many of the terrorists were not captured by police forces. Police forces (like the FBI) would be all about collecting and preserving evidence and the proper manner so that they could present a solid case to prosecuters. You cannot seriously expect our soldiers to waste time (while being fired upon) to collect evidence to prosecute these people. Thus, trying these people in civilian courts makes no sense at all.

Military tribunals should absolutely be used, at least for those terrorists captured outside the US. Military tribunals have legal precedent and Supreme Court backing. They are legal and they are a reasonable way to move these individuals out of legal limbo.

If a terrorist is capture inside the US (the plot is in the US and that whole nine yards), then they should still be handed over to either intelligence or military officials where they can be questioned (without miranda rights) for at least two weeks (preferably longer) before being handed over to the FBI. The FBI can then mirandize the suspect and question him to their hearts content. If we're going to be able to collect enough evidence and in such a manner that will stand up in our courts, then I see no problem with charging them in our civilian courts. Should these courts be unable to find an unbiased American jury, then that's the terrorist's fault. On the other hand, I have faith that the jury will at least demand to see evidence that the suspect is a terrorist.

The difference between a terrorist captured outside the US by the military and one captured inside the US by the FBI and other is just that, the agency capturing them and what that agencies priorities are. The FBI's priority is law enforcement, but the military's primary goal is fighting a war. If terrorists start going free because the civilian courts find fault with the way the military collects evidence (or doesn't collect evidence), then the military would be right to simply raise the black flag and take no prisoners (then again, this would solve all our problems quite nicely). If no terrorists are captured by the military then we have no need to consider the legal implications thereof.

[larkin]

There are checks and balances to military tribunals in the U.S. It is a parallel judicial structure that eventually leads to the Supreme Court: To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts. s

Why would we rely on a parallel structure when we have a perfectly serviceable existing structure in our civilian court system? Part of the idea behind the court system is so that people aren't tried in secret, behind closed doors, with only assurances from the government to "trust us, everything was handled appropriately." I find it unbelievable that anyone with any claim to being libertarian would be so casual with this fundamental right. (Not you specifically, Phej, just generally - there is no right more essential than habeas corpus.)

Oh, another argument against military tribunals - they violate federal law, including the UMCJ, confirmed by the Supreme Court in the 2006 Hamdan decision.

One of the challenges in resolving this dilemma is the fact that "terrorists" are in a unique category. The Geneva Conventions do not apply to "terrorists", nor does the United States criminal code adquately cover acts of "terrorism" as relates to their capture by the military. Acts of terrorism are a relatively modern phenomenon and the legal system has yet to evolve to deal with the situation.

Philosophically we find our political leaders divided on how to treat terrorists. The Clinton administration chose to deal with them as criminals, while the Bush administration chose to deal with them as "combatants". Now we have the Obama administration reverting back to treating them as criminals.

It is my opinion that the criminal justice system cannot provide terrorists, who are captured by the military on foreign soil, constitutional protections afforded to criminals who are caught by domestic law enforcement for the reasons I've already mentioned above. The Geneva Conventions do not adequately address the issue of non-uniformed combatants who are not representing a sovereign nation.

I do not advocate the torture of those captured on the battlefield, but until the status of captured "terrorists" is specifically addressed by international agreement it seems that the gray area will permit each administration to apply their own views to the issue as they deem appropriate.

One thing I saw repeatedly on the thread that's factually inaccurate - that terrorists are people "captured by the military." Richard Reid, Ramzi Youssef, Tim McVeigh, Umar Farouk Abdul, Eric Rudolph, countless suspects captured by the police forces of countries with extradition, and suspects captured by civilian agencies abroad were not captured by the military, they were captured by civilian police and defense forces. And no one questioned the ability of civilian police and defense forces to do the job then. But now suddenly they're "inadequate" to try them? In what way? Because they require evidence?

The Geneva Conventions are clear, and explicitly apply to terrorists, however they are defined: enemy combatants captured on the battlefield and are entitled to protections as prisoners of war. If the Bush administration had chosen to define them as "combatants", as you claim, that would have afforded them these protections. The U.S. chooses to treat them as civilians in order to prosecute and permanently detain them under criminal law. Fine, but that means they are subject to the laws of the United States. The same way we would treat spies or any other category of people who may also consider themselves at war with the United States. (And by the way, by the same court system that has been perfectly suited for trying spies ad terrorists for the past 200 plus years.) The fictional term "unlawful enemy combatant" that Bush preferred, to skirt both prisoner of war conventions and criminal conventions, was first rejected by the Supreme Court in the Hamdan ruling and again in the Boumediene ruling.

But if the fundamental illegality of all of this is somehow still philosophically unconvincing (philosophically, the only U.S. political leader who has ever disagreed with how to treat terrorists has been Bush), keep in mind it is a basic tenet of COIN strategy to treat terrorists as criminals. Outlined most clearly by the Reagan Administration (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.) but somehow only the province of crazy leftists now.

[hubcap]

Well, for instance, that a single man can be considered a significant enemy of the "Great Satan" is a pretty big deal to some people.
Actually, one man with his finger on the detonator of a nuclear device IS the significant enemy of any state whom he chooses.
Also, the terrorists would likely be given status as POWs in our prisons, and would be afforded Geneva Convention rights accordingly. They'd be able to dismiss civilian casualties as collateral damage in a military conflict too. I agree that trying them as criminals would undermine the use of the military in that context, but they aren't being used solely for capturing terrorists.
I am puzzled by your statements here. Terrorists are neither uniformed members of the military of any sovereign nation or criminals. What are you suggesting? What is the military being used for other than killing/capturing terrorists?
I don't think I really understand what your position is, though. Why use military tribunals if constitutional protections are insufficient in federal court? How are the Geneva Conventions deficient? (detainees are under article II or III, as judged by a tribunal. No exceptions).
As I have already mentioned; treating terrorists that have been captured by the military presents huge problems from a Constitutional perspective seeing as how the Constitution guarantees Miranda rights, legal representation, the right to remain silent, and so on. The military is neither trained to provide those things, nor are they authorized to make "arrests" on foreign soil. The Geneva Conventions are deficient in that they only cover the treatment of POW's. Terrorists are not uniformed soldiers representing a sovereign government so they are not covered by the Geneva Conventions.

(As a side note, terrorism is actually an old and fairly common phenomenon (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.). It's the potential deadliness of modern terrorism that you're probably referring to when you say terrorism is a new phenomenon.)
Terrorism by definition consists of acts of violence, typically extreme violence, against third parties in an attempt to have demands met by another party, usually in order to secure political goals. My original statement referred to terrorism as a "relatively modern phenomenon" which your link supports, so I think we are in agreement on that point.

---------- Post added 01-31-2010 at 02:06 PM ----------

Why would we rely on a parallel structure when we have a perfectly serviceable existing structure in our civilian court system? Part of the idea behind the court system is so that people aren't tried in secret, behind closed doors, with only assurances from the government to "trust us, everything was handled appropriately." I find it unbelievable that anyone with any claim to being libertarian would be so casual with this fundamental right. (Not you specifically, Phej, just generally - there is no right more essential than habeas corpus.)
Habeas corpus is not offered to prisoners captured by the military.
Oh, another argument against military tribunals - they violate federal law, including the UMCJ, confirmed by the Supreme Court in the 2006 Hamdan decision.
The issue is not nearly as well clarified from a legal perspective as you may think. Justice Stevens writing for the majority actually advocated using regular military "courts-martial" trials.
One thing I saw repeatedly on the thread that's factually inaccurate - that terrorists are people "captured by the military." Richard Reid, Ramzi Youssef, Tim McVeigh, Umar Farouk Abdul, Eric Rudolph, countless suspects captured by the police forces of countries with extradition, and suspects captured by civilian agencies abroad were not captured by the military, they were captured by civilian police and defense forces. And no one questioned the ability of civilian police and defense forces to do the job then. But now suddenly they're "inadequate" to try them? In what way? Because they require evidence?
You are correct in that some terrorists are captured by civilian authorities and turned over to our military while on foreign soil. So, does this create a different class of criminal or terrorist?
The Geneva Conventions are clear, and explicitly apply to terrorists, however they are defined: enemy combatants captured on the battlefield and are entitled to protections as prisoners of war. If the Bush administration had chosen to define them as "combatants", as you claim, that would have afforded them these protections. The U.S. chooses to treat them as civilians in order to prosecute and permanently detain them under criminal law. Fine, but that means they are subject to the laws of the United States. The same way we would treat spies or any other category of people who may also consider themselves at war with the United States. (And by the way, by the same court system that has been perfectly suited for trying spies ad terrorists for the past 200 plus years.) The fictional term "unlawful enemy combatant" that Bush preferred, to skirt both prisoner of war conventions and criminal conventions, was first rejected by the Supreme Court in the Hamdan ruling and again in the Boumediene ruling.
The Geneva Conventions only apply to legal combatants. Terrorists aren't legal combatants.
But if the fundamental illegality of all of this is somehow still philosophically unconvincing (philosophically, the only U.S. political leader who has ever disagreed with how to treat terrorists has been Bush), keep in mind it is a basic tenet of COIN strategy to treat terrorists as criminals. Outlined most clearly by the Reagan Administration (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.) but somehow only the province of crazy leftists now.
The link you referenced refers to terrorists captured by civil authorities, and doesn't address the military specifically.

My position is not in support of eliminating any rights of captured terrorists, only to clarify by law their actual legal status. Whether that be via updating of the Geneva Conventions to cover terrorists specifically, or by congressional legislation. At this point in time the legal system has not resolved this matter and I suspect that when the men in question are tried in the legal system as criminals we will see the shortcomings of our existing laws when applied to suspected terrorists.

[larkin]

I am puzzled by your statements here. Terrorists are neither uniformed members of the military of any sovereign nation or criminals. What are you suggesting? What is the military being used for other than killing/capturing terrorists?

I'm sorry, but the number of factually inaccurate statements in your post alone is impressive.

Terrorists have been explicitly defined as criminals by: the Geneva Conventions, The Supreme Court, the military and every other President aside from Bush.

Terrorists are not uniformed soldiers representing a sovereign government so they are not covered by the Geneva Conventions.

Terrorists are covered under the Geneva Conventions as non-state actors.

Terrorism by definition consists of acts of violence, typically extreme violence, against third parties in an attempt to have demands met by another party, usually in order to secure political goals. My original statement referred to terrorism as a "relatively modern phenomenon" which your link supports, so I think we are in agreement on that point.

Terrorism is not a "relatively modern phenomenon", it is a centuries-old phenomenon - again, read the outline of COIN strategy related to terrorists (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.) from the military in 1987.

The issue is not nearly as well clarified from a legal perspective as you may think. Justice Stevens writing for the majority actually advocated using regular military "courts-martial" trials.

He said it was possible for such a thing to be legal, but tribunals in their current incarnation simply weren't. And what couldn't be clearer in Hamdan, Boumediene, Rasul et al is that this fictional definition of terrorists as "unlawful enemy combatants" is illegal and not recognized under either international or U.S. law.

You are correct in that some terrorists are captured by civilian authorities and turned over to our military while on foreign soil.

Many terrorists are captured by civilian authorities and not turned over to our military at all. (By the way, Khalid Sheikh Mohammed was extradited to the U.S. through a civilian agency, not the military.)

The Geneva Conventions only apply to legal combatants. Terrorists aren't legal combatants.

The Geneva Conventions clarifies the distinctions between enemy combatants and non-combatants and civilians. Terrorists, like spies, fall into the latter group and are subject to criminal penalties.

The link you referenced refers to terrorists captured by civil authorities, and doesn't address the military specifically.

It refers to all terrorists; there is no distinction between those captured by the military and and those captured by a civilian agency.

My position is not in support of eliminating any rights of captured terrorists, only to clarify by law their actual legal status. Whether that be via updating of the Geneva Conventions to cover terrorists specifically, or by congressional legislation. At this point in time the legal system has not resolved this matter and I suspect that when the men in question are tried in the legal system as criminals we will see the shortcomings of our existing laws when applied to suspected terrorists.

You saying the legal status is unresolved doesn't make it so. It is not unresolved; there has never been any significant legal ruling, treaty or political leader outside of Bush who has ever questioned the legal status of terrorists; these internationally accepted definitions have been in place for over 50 years. And we have tried terrorists in this country for over a hundred.

[Arkeph]

As I have already mentioned; treating terrorists that have been captured by the military presents huge problems from a Constitutional perspective seeing as how the Constitution guarantees Miranda rights, legal representation, the right to remain silent, and so on. The military is neither trained to provide those things, nor are they authorized to make "arrests" on foreign soil. The Geneva Conventions are deficient in that they only cover the treatment of POW's. Terrorists are not uniformed soldiers representing a sovereign government so they are not covered by the Geneva Conventions.

Well, the military can simply extradite the detainees to the US, where civilian authorities who can provide constitutional protections can provide them. I'm not sure it's accurate that the military doesn't have the authority to capture terrorists.

As for what the GC covers, I think we're at the heart of the matter. According to international law, detainees are either POWs or civilians for purposes of treatment. What kind of court they should be tried in is not specified, but a tribunal decides what category they fit in. Sure, the GC can be updated to include terrorists under one of the two specifically, but I don't see any sensible reason to do this. The GC covers all detainees, not just "lawful" combatants, whether or not they are uniformed soldiers acting on behalf of a state.

There's no confusion about the legal status of the detainees unless their captors refuse to clarify their status, which I think is what's going on. They're either POWs or civilians, warriors or criminals. The claim that they have no status under international law seems to me to have been a direct effort by the Bush administration to skirt GC, completely ignoring the responsibility of actually deciding the legal status of detainees.

Also, to address the question about the activities of the military, they're providing general security, which is far more broad than simply capturing terrorists.

[hubcap]

Larkin - I'm not going to go point by point through your post to respond to everything you say. It is clear enough to me that I have not provided enough clarity in my previous posts to describe either my position or what I am suggesting.

OK - you say that terrorists are covered by the Geneva Conventions - So let's say our military captures a terrorist in the mountains of Afghanistan, he is taken prisoner and brought back to the United States to stand trial. The suspect is considered innocent until proven guilty, the military has not provided any chain of evidence to support the charges against the man, the military did not read the suspect his Miranda rights, perhaps he was even roughed up a bit (police brutality?) he was questioned without an attorney present, he was held for longer than 24 hours without charges being brought in a proper court of law............etc etc and now you want to try the man in the judicial system of the United States with full Constitutional protections...............

How do you see this working out? The man's Constitutional rights have been grossly violated............so how are we going to reasonably expect a conviction? Heck, I would be surprised if the suspect didn't file charges against the U.S. military.

[larkin]

Larkin - I'm not going to go point by point through your post to respond to everything you say. It is clear enough to me that I have not provided enough clarity in my previous posts to describe either my position or what I am suggesting.

OK - you say that terrorists are covered by the Geneva Conventions - So let's say our military captures a terrorist in the mountains of Afghanistan, he is taken prisoner and brought back to the United States to stand trial. The suspect is considered innocent until proven guilty, the military has not provided any chain of evidence to support the charges against the man, the military did not read the suspect his Miranda rights, perhaps he was even roughed up a bit (police brutality?) he was questioned without an attorney present, he was held for longer than 24 hours without charges being brought in a proper court of law............etc etc and now you want to try the man in the judicial system of the United States with full Constitutional protections...............

How do you see this working out? The man's Constitutional rights have been grossly violated............so how are we going to reasonably expect a conviction? Heck, I would be surprised if the suspect didn't file charges against the U.S. military.

In this instance, the military is free to declare him an enemy combatant captured on the field of battle. In which case he is entitled to prisoner of war protections. The only reason the Bush administration chose not to do this, and create a third, fictional classification for this combatant, is because they wanted to provide legal cover for torture.

[Arkeph]

How do you see this working out? The man's Constitutional rights have been grossly violated............so how are we going to reasonably expect a conviction? Heck, I would be surprised if the suspect didn't file charges against the U.S. military.

Sovereign states can, in certain circumstances, curtail detainee rights, although certainly not past the GC. This makes it practical for the military to capture terrorists overseas while ignoring miranda rights, arrest warrants, and the like. Once these circumstances have past, there's no reason to deny detainees these rights. In effect, terrorists get a full suite of constitutional protections once those protections become available.

I don't see a good reason to deny them any constitutional rights once they're in a US prison, though. Convictions can still take place if the detainee's rights have been violated, and he still has standing to sue for being mistreated. Secret evidence and evidence obtained by coercion are, of course, thrown out.

Military commissions are viewed as unlawful because they allow those forms of evidence in contradiction to the GC, which stipulates that detainees should receive a full and fair trial.

[hubcap]

Aren't un-uniformed combatants subject to execution under the Geneva Conventions?

[Arkeph]

If you mean they can be executed while in captivity without a trial, then no (murder is explicitly prohibited). If execution is the sentence of a fair trial, then the GC doesn't prohibit it (to my knowledge). If you mean they can be killed while engaged in combat, then the GC has nothing to say on the matter. US soldiers still have to follow the rules of engagement, though.

[hulloworld]

I think the main issue is clearly defining the word 'terrorist' otherwise way may all be in some trouble...

[Grimstad]

I've been pondering this issue myself. It makes sense to me to try them in military court in spite of the fact they are not part of an organized army. Either that or put the "hate crimes" definitions to the test.

[larkin]

I think the main issue is clearly defining the word 'terrorist' otherwise way may all be in some trouble...

I agree that does seem to be a problem. Here's the definition of the word terrorist: a person who uses terror as a political weapon. Here's what it's not: anyone fighting on a side we don't like using methods we may not approve of.

[boldbidder]

Our military while the greatest in the world has already proven itself utterly inept at producing confessions or obtaining useful information, this IS NOT the job of the military. Part of removing the 'policing the world' concept should be not asking our military to become police.

I think the assertion that the military is inept at producing confessions or obtaining useful information is a bit unfair. What reasonable expectation do we have as private citizens to privy to key intelligence findings that relate to national security? I would say not very much

Regarding the idea of policing the world, you make a fair point. However, unless we start standardizing the procedures employed for both domestic police forces and the military internationally then suspects apprehended by the military will be forever a difficult pass-through to our civilian justice system. Miranda rights, surveillance, use of force, etc... all these areas will vary wildly depending on whether or not its a beat cop making an arrest or a Seal Team taking some stragglers in for questioning. The two don't lend themselves well to cross-pollination and I'm not really convinced that they should in either case.

[hubcap]

After reading the relevent portions of the Geneva Conventions themselves as well as some commentary it seems to me that the issue isn't quite so clear-cut as many think it to be.

Without question un-uniformed combatants are afforded protection under the Geneva Conventions if they are captured on the battlefield. On the other hand it seems that civilians who take up arms are considered unlawful combatants who are not afforded the status of POW, although they are to be given humane treatment they can be held and interrogated.

If a civilian were to be turned over to the military by law enforcement they are still afforded humane protection but not granted POW status. Likewise, mercenaries are afforded humane treatment but not granted POW status.

It seems that trying civilians in a military court is an acceptable practice according to the Geneva Conventions. This would seem to be the most sensible approach to trying terrorists who are captured on the battlefield seeing as how the protections afforded them by the Constitution for trial by our domestic legal system are not practical as far as Miranda rights, chain of evidence, etc etc

I completely support humane treatment, and fair legal treatment for terrorists but I cannot see how a criminal trial in the federal court system can be the most practical solution to this issue.

[Arkeph]

It goes back to "fair legal treatment." The military commissions which were set up to deal with them aren't fair, allowing secret evidence and coerced evidence. However, if military trials were set up which were fair, then they'd be perfectly lawful (as far as I know). The difference between that and federal court would be very small in practice, though.

[hubcap]

As much as I like black & white solutions to problems, I can see this issue being very nuanced and not lending itself to a cookie cutter solution. It will be interesting to see how it plays out when the trial actually begins.

[larkin]

After reading the relevent portions of the Geneva Conventions themselves as well as some commentary it seems to me that the issue isn't quite so clear-cut as many think it to be.

Without question un-uniformed combatants are afforded protection under the Geneva Conventions if they are captured on the battlefield. On the other hand it seems that civilians who take up arms are considered unlawful combatants who are not afforded the status of POW, although they are to be given humane treatment they can be held and interrogated.

If a civilian were to be turned over to the military by law enforcement they are still afforded humane protection but not granted POW status. Likewise, mercenaries are afforded humane treatment but not granted POW status.

It seems that trying civilians in a military court is an acceptable practice according to the Geneva Conventions. This would seem to be the most sensible approach to trying terrorists who are captured on the battlefield seeing as how the protections afforded them by the Constitution for trial by our domestic legal system are not practical as far as Miranda rights, chain of evidence, etc etc

I completely support humane treatment, and fair legal treatment for terrorists but I cannot see how a criminal trial in the federal court system can be the most practical solution to this issue.

Here's the outline of treatment for unlwaful combatants under the Geneva Conventions (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.), including spies, civilians who carry arms, etc.:

The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[4] because in the opinion of the ICRC, "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action".[1][5]

The "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of a POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial."

It's actually pretty clear. There is no intermediate status. You're either a POW or an unlwaful combatant, subject to the laws of the detaining state. I've used the shorthand "criminal" in previous posts in response to your claim that unlawful combatants are not criminals, and not subject to the laws of the detaining state. They are; that's precisely their definition, they are subject to criminal laws. And the outline above also makes clear it's completely within the province of the detaining authority to determine which one of these categories the detainee fits under - which is just one reason why for those captured on a field of battle, the concept of being tried in the U.S. simply would never come into play.

(You also seem to be still under the mistaken impression that most "terrorists" are frequently captured by the military on the field of battle. I suppose that depends on your definition of the word (as clarified above), and it is true for a few, but it is not the case with Khalid Sheikh Mohammed nor any of the prominent terrorists who have already been captured and tried in the U.S. They were captured by civilian agencies, and they should be prosecuted by them. It's a specific COIN tactic to delegitimize their cause and their methods. And it's been successfully applied to terrorists in this country for over 100 years.)

As for prosecution of those deemed unlawful combatants - our laws have said, repeatedly, that military tribunals do not constitute full and fair trials. That's not saying that it's not possible for tribunals to do so, but that they don't.

And an unlawful enemy combatant is a phrase not appearing anywhere in the Geneva Conventions and has been specifically rejected by the Supreme Court.

As much as I like black & white solutions to problems, I can see this issue being very nuanced and not lending itself to a cookie cutter solution. It will be interesting to see how it plays out when the trial actually begins.

The law is clear on the issue. The legal system has been clear on the issue. The only people who pretend it is unclear are former Bush administration officials seeking to evade legal culpability and Fox News. If the detaining state hasn't declared them enemy combatants, they get a trial. The talking point about the need to "clarify" the Geneva Conventions on this issue has one purpose and one purpose only - to justify after the fact our failure to comply with them.

[hubcap]

And the outline above also makes clear it's completely within the province of the detaining authority to determine which one of these categories the detainee fits under - which is just one reason why for those captured on a field of battle, the concept of being tried in the U.S. simply would never come into play.
I would refer you to this:

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(You also seem to be still under the mistaken impression that most "terrorists" are frequently captured by the military on the field of battle.
No, I'm not under that mistaken impression.

As for prosecution of those deemed unlawful combatants - our laws have said, repeatedly, that military tribunals do not constitute full and fair trials. That's not saying that it's not possible for tribunals to do so, but that they don't.
Here is portion of Justice Breyer's concurrence:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legisla-tive authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
In Justice Breyer's opinion, the POTUS could be granted the necessary authority by Congress in order to conduct military tribunals of this sort, but current laws do not do so. This seems to suggest that there would be nothing wrong with having the military handle these sorts of issues as long the Congress grants the POTUS the authority to do so.

And an unlawful enemy combatant is a phrase not appearing anywhere in the Geneva Conventions and has been specifically rejected by the Supreme Court.
Apparently the SCOTUS has accepted the term in the past:
The term unlawful combatant has been used for the past century in legal literature, military manuals and case law[3]. The term "unlawful combatants" was first used in US municipal law in a 1942 United States Supreme Court decision in the case ex parte Quirin.[26] 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.

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From the SCOTUS unanimous opinion re:Ex parte Quirin, 317 U.S. 1 (1942),

…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.

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The law is clear on the issue. The legal system has been clear on the issue. The only people who pretend it is unclear are former Bush administration officials seeking to evade legal culpability and Fox News. If the detaining state hasn't declared them enemy combatants, they get a trial. The talking point about the need to "clarify" the Geneva Conventions on this issue has one purpose and one purpose only - to justify after the fact our failure to comply with them.
Perhaps after more research you will draw a different conclusion.

[larkin]

I would refer you to this: To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.

The relevant context to this article is the fact that the Bush administration has created this problem by neither declaring them enemy combatants nor giving them a trial. All of this could be avoided by declaring them enemy combatants. Of course, then you have to agree to not, y'know, torture.

Here is portion of Justice Breyer's concurrence: In Justice Breyer's opinion, the POTUS could be granted the necessary authority by Congress in order to conduct military tribunals of this sort, but current laws do not do so. This seems to suggest that there would be nothing wrong with having the military handle these sorts of issues as long the Congress grants the POTUS the authority to do so.

Your argument has been overtaken by events, I'm afraid. This is the concurrence on Hamdi in 2004; since then SCOTUS has gone much further, saying in Hamdan 2006 that military commissions were wholly illegal. Congress, in response to the decision, passed the Military Commissions Act of 2006. And in response the Supreme Court again confirmed the illegality of those commissions in the Boumediene decision in 2008.

So while I would agree (and have said on this thread) that in general, the Supreme Court has not said that military tribunals or commissions are necessarily illegal, they have repeatedly said that the tribunals that we have are.

Apparently the SCOTUS has accepted the term in the past: [...] Perhaps after more research you will draw a different conclusion.

For the last time: there are two categories recognized, enemy combatant and unlawful combatant. Enemy Combatants are treated as POWs. Unlawful Combatants get a trial. Bush tried to create a third term, "unlawful enemy combatant", that is neither subject to U.S. law nor the POW requirements outlined by the Geneva Conventions. The term is entirely fictional and not recognized by any legal authority outside of Alberto Gonzalez. And it was created only to have a tenuous legal justification for the fact that we did not treat prisoners according to either POW requirements or U.S. laws.

At least Cheney makes the more intellectually honest argument that there's no need to abide by the Geneva Conventions. While his lawyers were busy spinning it as: "no no no, we abide by them, they're just all so unclear"

[hubcap]

I am actually in agreement with your primary assertions in this discussion. The only point I am attempting to illustrate is that there are nuances that need to be recognized.

I agree that those captured should be declared either enemy combatant or unlawful combatant. I think the only point we are in disagreement on is whether or not they should be tried by a properly constructed military court or by a criminal court.

[larkin]

Will leave to the mods whether to split the discussion or just revive the thread.

There was an interesting exchange in Newsweek (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.) on what constitutes a terrorist, specifically about whether Joseph Stack flying a plane into a building qualifies. Referring to Hulloworld's post seeking clarification on the definition.

I haven't decided about Joe Stack - seems like he was acting more out of isolated frustration than specifically to use his act as a political weapon. But I will admit that's probably splitting hairs, since the motivation is probably almost always both.

Here's a pretty appalling quote from the discussion, though there are many to choose.


Right or wrong, we definitely reserve the label "terrorist" for foreign attackers. Even the anthrax guy (not that we ever found him) wasn't consistently referred to as terrorist.


I think this mindset contributes directly to the idea that "terrorists" should only get military tribunals, or worse, not get trials at all.

[xanodel]

For the legal side, go here: To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.

The problem with these terrorist is several fold:
1) Do we really have a "war?" Under traditional notions of war being a state vs state issue, then the initial attack on the Taliban can be considered part of war. However since terrorists do not have a predefined "state" or "government" to reside in, they do not constitute a "state" for an actual "war" under treaty or UN definitions.
2) The Geneva conventions essentially would eliminate a substantial number of the "terrorists" from gaining "enemy combatant" status because they are "on-off" fighters, and they are not "official military." A military tribunal for enemy combatants, or POWs are only for the combatants under geneva conventions definition. Others are generally tried under criminal law.
3) The status of "illegal combatants" was a legal fiction, created on a whim to aid the "war on terror" and allow Bush to deal with them whichever way he pleased.

The easiest, and legal, and legit way to deal with the "terrorists" is to try them under criminal law, as common petty criminals. We don't give them the benefit for being "freedom fighters" in the eyes of some, decrease the legitimacy of the terrorist groups overall. The trial of course does not need to be in the US; however under common guidelines of where there is enough security, stability, neutrality etc, US might be the best choice. An international or regional court could also work, but I highly doubt that the US congress will re-enter the ICJ or sign the Rome treaty for the ICC because they just don't like the international courts.

[zibber]

The great big glaring problem here is that the term "terrorist" is very vague and selectively applied. Basically, if you violently resist the agenda of the USA and Israel, you are a terrorist. Any violence used by the USA and Israel is self-defense, no matter how hard it is to recognize it as such. If they kill 100,000 innocent civilians in some sand country, it's self-defense. If an anti-colonialist blows himself up in protest, it's terrorism and only reaffirms the necessity of colonial violence. (The easy-to-grasp formula at work here is "white=moral crusader, beige=terrorist".)

Here is a proposal: examine the roots of so-called "terrorism". What are the USA and Israel doing to incur this very rude savagery? (A quite similar thing goes for petty domestic crime, by the way. Don't fight the symptoms if you might cure the disease.)

[alphawolf]

I started this post so as not to derail the other one, my answer to this is either the US is a nation of laws or a nation of might. If we believe in our laws then they are just and right for all men and women or they are not this is as simple as that. They commited murder on our soil so we judge them by our laws in our country, if this gives them 'undue' advantages you might want to ask yourself if you would wish different treatment if you were the person on trial(trial does mean not proven guilty btw).



The civilian judicial system is not equipped to deal with this category, because they will never be provided with the level of intelligence required to prove and prosecute.

OTOH, the military system is wide open for governmental abuse because of the inherent secrecy involved. Congressional oversight is needed, but at the end of the day everything is still a secret.




The US has one of the best police forces in the world becuase of these protections.


Hearsay, motion to strike.




Our military while the greatest in the world


Hearsay, motion to strike.




has already proven itself utterly inept at producing confessions or obtaining useful information, this IS NOT the job of the military. Part of removing the 'policing the world' concept should be not asking our military to become police.



It's the job of the CIA, not the military, to obtain confessions and useful information. However, the CIA can more easily cooperate with the military because of the similar level of security clearances in both organisations.


I think the real question is whether it is ethical to keep enemy combatants indefinitely locked up offshore just to avoid the human rights that they would receive were they on US soil. It certainly is an easy solution to a complex problem.

[zibber]

I think the real question is whether it is ethical to keep enemy combatants indefinitely locked up offshore just to avoid the human rights that they would receive were they on US soil. It certainly is an easy solution to a complex problem.

The interesting thing is that this systematic disregard for international laws goes virtually unpunished (by the international criminal court, for example) and is actually implicitly condoned by most ("western") countries.

My god; how on Earth could anyone become violently angry at this west-o-centrism?!

[hubcap]

An interesting development seems to be taking place within the Obama administration. It seems that Obama's advisors are preparing to flip-flop on their approach to trying terrorists as criminals in a civilian court:

Top advisers to President Obama are close to a decision recommending that the self-proclaimed mastermind of the Sept. 11, 2001, terror attacks be prosecuted in a military tribunal, The Washington Post reported Friday, citing unnamed administration officials.

According to the report, the president's advisers have grown increasingly wary of bipartisan opposition to the planned civilian federal trial in New York City, mere blocks from where nearly 3,000 Americans were killed in the spectacular attack on the World Trade Center.
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It seems that this decision is being based on political reasons rather than idealogical or legal reasons. It will be interesting to see what Obama ultimately decides. His decision will certainly show whether he is more ideological or political.

[larkin]

An interesting development seems to be taking place within the Obama administration. It seems that Obama's advisors are preparing to flip-flop on their approach to trying terrorists as criminals in a civilian court:


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It seems that this decision is being based on political reasons rather than idealogical or legal reasons. It will be interesting to see what Obama ultimately decides. His decision will certainly show whether he is more idealogical or political.

I think the word that you're looking for is "ideological", but either way I find it absolutely unconscionable that you would a.) initially push for no trials at all, because "terrorists aren't criminals"; b.) soften the position to be in favor of some kind of trial, but still a military tribunal - a position usually offered alongside yellow journalism sloganeering like "terrorists shouldn't be mirandized" or some other such nonsense; only to have the nerve to c.) criticize the Obama administration when he switches his position to be more like yours. (All in the course of this thread, no less!) Because he doesn't have the courage of his convictions, right? But you do?

Obviously I don't agree with the Obama administration's position on this or very much related to human rights. I think it's absurd that this country has made what should be an obvious decision into a political fireball, so much so that now he's dancing to your tune. But it's still your tune.

[hubcap]

I think the word that you're looking for is "ideological", but either way I find it absolutely unconscionable that you would a.) initially push for no trials at all, because "terrorists aren't criminals"; b.) soften the position to be in favor of some kind of trial, but still a military tribunal - a position usually offered alongside yellow journalism sloganeering like "terrorists shouldn't be mirandized" or some other such nonsense; only to have the nerve to c.) criticize the Obama administration when he switches his position to be more like yours. (All in the course of this thread, no less!) Because he doesn't have the courage of his convictions, right? But you do?
I believe you have mischaracterized my position entirely. I never suggested that there should be "no trials at all". My position is and always has been that we follow the law. I believe the "terrorists" should be classified as "unlawful enemy combatants" rather than criminals. I've never suggested that "terrorists shouldn't be mirandized". I have on the other hand brought up a number of potential scenarios which you have failed to address in any form. You seem to view this matter as black and white with no areas of gray whatsoever.

My criticism of Obama is based on his hypocrisy, not his position. Obama openly criticized GWB for taking the very position that he seems to be willing to adopt.

Obviously I don't agree with the Obama administration's position on this or very much related to human rights. I think it's absurd that this country has made what should be an obvious decision into a political fireball, so much so that now he's dancing to your tune. But it's still your tune.
An OBVIOUS decision? Again, you seem to overlook any shades of gray in these matters.

Life is not black and white, rather an entire rainbow of black to white with many shades of gray in-between.

If all these terrorists are actually criminals rather than enemy combatants then I suggest the immediate withdrawal of all military personnel from the current theatre of operations. We can then replace them with FBI agents and US Marshals, who are actually trained in law enforcement. If they are criminals rather than combatants we should never have sent the military into Afghanistan.

[Holiman]

First is hearsay... really cmon this is a discussion forum, if you want me to cite where I get these opinions Im sure I could find others whom agree. However if it makes some kind of difference I will state both our police and military are Some of the best forces in the world.

The civilian judicial system is not equipped to deal with this category, because they will never be provided with the level of intelligence required to prove and prosecute.

OTOH, the military system is wide open for governmental abuse because of the inherent secrecy involved. Congressional oversight is needed, but at the end of the day everything is still a secret.

I dont believe in a need for secrecy nor do I think a solid case could be made unless its to cover up unlawful or improper actions on the part of our goverment. There are many tools in place in court rooms to handle these cases. You need look no further than the DEA cases to see how we can protect sensitive information from becoming public.

It's the job of the CIA, not the military, to obtain confessions and useful information. However, the CIA can more easily cooperate with the military because of the similar level of security clearances in both organisations.


Funny how the CIA doesnt agree with this statement. You need look no further than Susan J. Crawford, the senior Pentagon official overseeing the military commissions at Guantánamo who openly admitted they tortured prisoners. The CIA's only job was inteligence gathering and covert operations. They failed miserably in several area's in the last decades and now have an oversight body. There is no truth in your statement about CIA and military security having any similarity or bearing on this case. To find useful methods of invoking confessions from prisoners you must look no further than any career detective or police professional theyve been doing wonders for years.


To hubcap's point when a goverment supports terrorism against the US its definately in US interests to use military forces to strike at that goverment, to this end I and most of this country supported Afghanistan. If US forces had kept prisoners in Afghanistan and tried them there it would make sense to follow standards set forth by the UN for trial however they were carted to US held territory and questioned, tortured. This was done in defiance of world opinion and international law. Civil trials are to me the only solution to solve both the mistakes that our goverment made and to possibly convict terrorists.

[Wien1938]

hulloworld is right, we need to first define what we mean by "terrorist".

Can I take it from the assumptions in the conversation here that we are talking about two legal identities:
1. Persons arrested on suspicion of committing or of intent to commit acts of terrorism upon US soil.
2. Persons arrested/captured on foreign soil, either on suspicion of committing or intending to commit an act of terrorism. This further subdivides into two categories:
2a. Persons arrested on suspicion of committing or intending to commit acts of terrorism.
2b. Persons captured in a war situation by military forces, as above.

There is a further category, one which is simpler to dispose of, by which we mean non-uniformed enemy combatants who do not fall under Part I, Article 4 of the Third Geneva Convention.
I should point out that if one Power in a belligerent situation (here the USA and the Islamic Emirate of Afghanisatan - the Taliban today) refuses to abide by the Convention or does not apply the Convention to their actions, the other Power shall not be bound by obligations towards the other Power.
Simply speaking, the Taliban and their Islamist allies refuse to operate by the Geneva Conventions and so the US and her allies are under no legal obligation to extend the protection offered under the Geneva Conventions to the Taliban.
Furthermore a person engaged in hostilities who does not qualify as a Prisoner of War (see GC.III, P.I, A.5) must be held as POW until his status under CG.3 has been determined by a competant tribunal. The implication is that if the competant tribunal rules that the person does not qualify for POW status, then they are a civilian engaged in a criminal activity (such as murder or attempted murder) which then falls under military law.
It is possible that 2a/b (above) fall into this category if acting as combatants.

I would argue that those captured on foreign soil and held as "illegal combatants" should be tried under military law with the offences relevent to their capture. These are not Prisoners Of War but civilians engaged in criminal activities under military law.

Unless these crimes were committed on United States sovereign territory, the persons cannot be competantly tried in a civilian court and thus do not qualify for constitutional protection.

Geneva Conventions
GC.III
GC.IV.
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Do not forget that the USA is not signatory to the additional Protocols under GC.IV.

[larkin]

My position is and always has been that we follow the law. I believe the "terrorists" should be classified as "unlawful enemy combatants" rather than criminals.

Sometimes it's as if you haven't read any of the entire discussion above. The term "unlawful enemy combatant" is not recognized in law (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.); find a positive legal affirmation for it or stop using it.

Terrorists are unlawful combatants, i.e. civilians entitled to habeas in a civilian court ("criminals"), as ruled by SCOTUS in Hamdan and again in Boumediene. Sorry for the handwaving but we're well past the point of re-explaining now.

I've never suggested that "terrorists shouldn't be mirandized". I have on the other hand brought up a number of potential scenarios which you have failed to address in any form. You seem to view this matter as black and white with no areas of gray whatsoever.

Wien makes the argument above that we are not obligated to follow the Geneva Conventions. I obviously disagree (and even so, there are multiple instances of our Supreme Court has reiterated support for civilian trials of unlawful combatants in our own law), but at least respect the honesty of the argument. It's basically Cheney's argument as well; he is, quite simply, pro-denial of habeas and pro-torture, and makes no apologies for it.

But Cheney's lawyers (and you, to a large extent) routinely try to hide this position in claims that they want to follow the law, but it's too unclear. It's not that some are for trials and they are against; the whole point of this argument is to introduce as much uncertainty into the law as possible, so they can simultaneously claim they are following the law and still deny habeas, without having to publicly acknowledge they are rejecting habeas outright. The entire goal is to desperately pretend this issue is anything other than black and white.

While in general I might agree that many issues are rarely black and white, the law is one area where it shouldn't be. It shouldn't be situationally applied.

My criticism of Obama is based on his hypocrisy, not his position. Obama openly criticized GWB for taking the very position that he seems to be willing to adopt.

There is no defense of Obama's position on these matters, but equally to blame are those who made civilian trials - the military and legal policy in this country for terrorists for over a hundred years - suddenly so politically unpalatable. It was a concerted effort. This means politicians looking to avoid prosecution, the lobbyists, the pundits, and the pr specialists who all manipulated the portions of the public to repeat their talking points and otherwise serve as useful tools are as much to blame as anyone.

That said, say I were in favor of a program x, and implicitly or explicitly criticized those politicians who opposed it. If one Senator decided to change their vote to be in favor of program x, and then I turned around and called them a hypocrite, others might rightfully suggest that it seems like I have an axe to grind, and that I care more about making whatever criticism is available than I do about the issue.

If all these terrorists are actually criminals rather than enemy combatants then I suggest the immediate withdrawal of all military personnel from the current theatre of operations. We can then replace them with FBI agents and US Marshals, who are actually trained in law enforcement. If they are criminals rather than combatants we should never have sent the military into Afghanistan.

More outright confusion on the legal distinction of the term "enemy combatant" and "unlawful combatants", ("criminals"). Just above you called them unlawful combatants.

It also seems as if you think that this is the first time this issue has ever been addressed in war, that this is the first time we've ever had to deal with a civilian insurgency or terrorists, as if Vietnam wasn't often fought against civilians carrying arms or terrorists. You'll say you're of course aware that this is the case, but then, legal arguments aside, why the sudden advocacy in favor of changing the COIN approach the military has taken to terrorism for years (To view links or images in this forum your post count must be 2 or greater. You currently have 0 posts.), under Republican and Democratic presidents - treating it as a criminal activity - now? Why second-guessing of the military's strategic approach?

:1. Persons arrested on suspicion of committing or of intent to commit acts of terrorism upon US soil.
2. Persons arrested/captured on foreign soil, either on suspicion of committing or intending to commit an act of terrorism. This further subdivides into two categories:
2a. Persons arrested on suspicion of committing or intending to commit acts of terrorism.
2b. Persons captured in a war situation by military forces, as above.

To answer to these instances: in the case of 1 there would be little serious disagreement that they are entitled to a civilian trial. This was the case even under Bush.

In the case of 2b, there would be little serious disagreement that the military make the decision how to handle those captured on the field of battle. In the great majority of cases they are classified enemy combatants, do not get a trial, and sent to a military prison such as Bagram, Abu Ghraib, etc. All we have to do is agree not to torture.

The case of 2a is most controversial. We can either remand to local custody, which is the most frequently used option, or extradite them to the U.S. In some rare cases we have even chosen extraordinary rendition - as evidenced by the Israelis with Eichmann, the latter option still requires a trial.

I would argue that those captured on foreign soil and held as "illegal combatants" should be tried under military law with the offences relevent to their capture. These are not Prisoners Of War but civilians engaged in criminal activities under military law.

Moral and military strategy arguments aside, the legal argument against trying unlawful combatants under military law does not rest solely on the Geneva Conventions; as above, your position has been struck down by the Supreme Court. Hamdan and Boumediene could be considered politically controversial decisions (5-3 and 5-4, respectively) but change the circumstances to Hamdi, where the petitioner is undoubtedly a terrorist captured abroad but also a U.S. citizen, and the ruling in favor of habeas in a civilian court is 8-1. With the most virulently pro-habeas opinion being offered by Scalia.

We have chosen to extradite these people into U.S. custody. We did not have to make that decision, as shown in the multiple potential avenues of treatment for the different instances you describe. We have defined ourselves (I use the term "ourselves" generally) since the Magna Carta as a society that does not let our government detain people without trial indefinitely, or disappear in secrecy. We expect the same treatment from other countries, and would be appalled if we did not get it.

You have crimes to answer for, you get to do so in front of a judge on the record. This right is universal and does not only apply to people who we think deserve it.

[Holiman]

I should point out that if one Power in a belligerent situation (here the USA and the Islamic Emirate of Afghanisatan - the Taliban today) refuses to abide by the Convention or does not apply the Convention to their actions, the other Power shall not be bound by obligations towards the other Power.
Simply speaking, the Taliban and their Islamist allies refuse to operate by the Geneva Conventions and so the US and her allies are under no legal obligation to extend the protection offered under the Geneva Conventions to the Taliban.



Im not sure where you got this concept since I know of no place where it states if people break the law you are obliged to break the law in retaliation. The UCMJ does not allow any type of leeway on this matter regardless of the actions of the enemy. Germany and Japan both broke the conventions and were held to task afterwards (Nuremburg and others). The US had isolated incidents which were held trial under UCMJ court martials. War crimes are war crimes.

[Wien1938]

larkin, I would agree with you on the Hamdi case. Regardless of his crimes or place of capture, he is a US citizen and entitled to US Constitutional protections. Scalia's opinion is very interesting and I would suggest the most legally correct. Habeas Corpus has and had not been suspended, so the administration was under an obligation to present charges and move for a trial.
However, this does not apply to Hamdan and Boumediene, where the argument (tightly split as you point out) relates to judicial compentence (the extent of the law and the court's juridistion) and to the legality of the military commissions as "competent tribunals" under the GC. I, too, would argue that the military commissions would be unfit to try foreign citizens held by US forces because no fit attempt (competent tribunal) had been made to determine the status of the prisoner under GCIV. The CT would need to fulfil the crititeria to be constituted as "competent" but I see no reason why, so long as the legal process is followed, that the majority of those held in Guantanamo could not be ultimately tried in the courts martial for trying the defendents under military law.
I am annoyed at the legal incompetance of the Bush administration in creating the legal situation of Guantanamo but not constructing the legal procedures to resolve the problem of the foreign combatants.


Holiman, you misunderstand the concept. The issue is that is the other Party does not apply or abide by the Convention, then the original Party is under no legal obligation to extend the protections contained in the GC.
That said (and this is important), the UCMJ is then the legal framework in which these people exist and their rights are limited within that framework. No one is advocating breaking the law but you cannot argue that the GC applies to the Taliban or the Al Qaeda groups because the Convention clearly states that if one side does not apply or abide by those rules, then the other party is not under the legal obligation.
You can find this under the ICRC commentaries on the GCs.

The case of Germany does not apply here. Germany was a signatory to the GC and critically, in the case of the German-Soviet war, refused to accept the Russian offer at the opening of Operation Barbarossa to apply the Geneva Conventions. Germany has no legal right to refuse GC protection once offered.
Japan never signed the Geneva Conventions. Japan's crimes legally fall under failure to prosecute crimes committed under Japanese military law, breaches of the Kellogg-Briand Pact (a signatory) and breaches of the Hague Conventions (a signatory).
War Crimes are indeed War Crimes but crime is defined by the law and not by moral outrage.