(02-16-2010 10:32 PM)Machiavelli Wrote: I'm not a lawyer but I think under the Geneva Conventions they have a section for non uniformed enemy combatants. I would follow those rules. It shouldn't be that damn hard folks. Have it go through the world courts. Anything but that Cowboy Diplomacy we had for 8 years. Civilized societies have ways of dealing with thugs. These guys are criminal elements. I think Cheney and that group had it wrong with the war on terror route. Just my humble opinion.
I am a lawyer, and there is no explicit provision under the Conventions for irregular combatants. If they are injured, they fall under GC 1 or 2. If they are uniformed enemy combatants they fall under GC 3. If they are unarmed civilians they fall under GC 4. There is dicta arising out of the Yugoslavia cases suggesting that everyone has to fit under one of the categories, but the Conventions on their face do not provide this.
Moreover, section 2 of the conventions all provide that they shall apply to signatories fighting other signatories, and to signatories fighting non-signatories, so long as the non-signatory abides by them. Thus even if you close the GC 3/GC 4 gap, you still have a jurisdiction issue because al-Qaeda and the Taliban were non-signatories who obviously did not abide.
Also, the rules don't provide what I think you believe they do. They certainly don't provide that they must be taken to any courts--ours or international. They can be tried for war crimes--which means military tribunal to me. They can also be confined indefinitely, for the duration of the conflict, a provision that simply codifies centuries-old international common law.
Now, here's where the Shrubbies got it all cocked up.
1. They went to war without a declaration of war. That doesn't make it an illegal war, but it does mean that there are no bright-line rules.
2. They decided unilaterally to extend GC protections to our captives. This creates a legal limbo where nobody really knows what the rules are.
3. They set up Gitmo based on the assumption that precedent would be observed and US constitutional protections would
not apply there. Then the Supreme Court overturned precedent and applied US constitutional rights to prisoners held there. As an aside, I recall a bunch of you stating so indignantly that the court should never reverse precedent when talking about the campaign finance ruling; I'm guessing all of you in that group would totally support the reversal of precedent here--so you are hypocrites.
Anyway, the Shrubbies so confused the legal landscape that nobody really knew what the rules were. We needed a declared war--against al-Qaeda, against the Taliban, whomever--in order to define what law to invoke. Not some ill-defined "war on terror." Unilaterally applying the Geneva conventions was a mistake. I know what the Shrubbies wanted--a politically correct war, to minimize political opposition. But war isn't politically correct, and trying to fight it that way is a pretty good way to end up in a no-win quagmire. Finally, we should never have brought them to Gitmo. Keep them in the desert, if you want to try them, do it in military tribunals there, convict them, and kill them. Everybody incarcerated in Gitmo should have been dead five years ago.
Treating them as criminals under US or international law is neither required nor appropriate. The DA has a whole bunch of procedures available to him--warrants, seizures, interrogation, etc.--that cannot be availed of in a military context; that's why the rules are different.
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