JavaFox

Would you agree? Ashcroft's answers --or lack of them-- here are disconcerting at best. "I don't think there's any basis for doing that" is far from an adequate answer when an American citizen asks his government whether or not he could be detained and deprived of his liberty as an enemy combatant.

But then Ashcroft --and I am no lover of Ashcroft, let me tell you-- has some points. Shouldn't someone who is fighting against the United States be detained as part of the military operation to destroy terrorism, rather than the judicial criminal courts? Does the fact that he is on American soil --or even that he is an American citizen-- matter?

What do you think?

XxStichesxX

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3DMark06

PoopyTheJ

What's the basis for declaring someone an Enemy Combatant? I don't really think there is one, it's an arbitrary power invested in GW, and he can declare anyone he feels fit to be one. WRONG WRONG WRONG. There should most certainly be judicial or better yet Congressional review of this sort of thing. Opening a huge can of worms with "Enemy Combatants".

JavaFox

Well, yes, you make a good point. This sort of thing is, I think, a good tool, but it does lack some oversight. But unlawful combatant status is not arbitrary. It is firmly grounded in the Geneva Convention. Article 4 of the Geneva Convention has some pretty specific guidelines as far as who is considered a legitimate prisoner of war. There are basically six categories of people that are awarded POW status. They are, with some paraphrasing, as follows:

1) Members of the armed forces of a party of the conflict;
2) Members of militias and other volunteer corps;
3) Members of a regular armed forces who are loyal to a government not recognized by the Detaining Power;
4) People who accompany the troops but are not members of the military;
5) Merchant marines and civil aviators;
6) Inhabitants of a non-occupied territory that take up arms to fight

Clearly, terrorists are not members the members of any armed forces and they are not merchant marines. They are, therefore, disqualified and do not fit into three of the six categories. But what of the others? I bolded the ones that terrorists could potentially fall under. With some elaboration, though, I'll think you'll see that they don't fit into these, either.

The Geneva Convention offers protection to "members of militias and other volunteer corps." At first glance, one may be tempted to say that al Qaeda fighters could be considered militia men. But the Geneva Convention goes on to list four criteria that militamen must fulfil to be protected as prisoners of war. First, the Convention says that troops "[must be] commanded by a person responsible for his subordinates." Arguably, this exists, even in al Qaeda. Secondly, the Convention maintains that the milita must be easy identified -- that is, they must have insignia or have a standard issue uniform. Obviously, this isn't the case in al Qaeda, and they are therefore exempt from being considered a milita. Furthermore, the Convention dictates that militamen must "carrying arms openly" and "conducting their operations in accordance with the laws and customs of war." Neither of these things are true of al Qaeda or, generally speaking, any terrorist group. So while al Qaeda has commanders, it does not have uniforms, it does not carry its arms openly, and it does not adhere to the rules of war. It is therefore not a legitimately recognizable militia.

Can terrorists be considered "people who accompany the troops but are not members of the military"? Again, I would say no. The Geneva Convention is painfully specific here, as well. It states that people who fit into this category are people such as "civilian members of military aircraft crews, war correspondents, supply contractors, [and] members of labour units or of services responsible for the welfare of the armed forces." Al Qaeda fighters are none of those things. Furthermore, the Convention states that people who accompany troops must a) be authorized by the troops, and b) be provided identification cards. Again, it is obvious that terrorists do not fall into this category.

Finally, the Geneva Convention provides that "inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units [should be awarded POW status.]" On the surface, this looks like it could apply to al Qaeda. But it does not, and it two very distinct ways. Firstly, al Qaeda did not "spontaneously take up arms" to resist our invasion. They have been at war with the United States since the 90s. Perhaps on an ideological level, they think of themselves as "spontaneous fighters against Western cultural oppression" but that is neither here nor there and to even pretend that this sort of justification would be recognized by the Geneva Convention is both illogical and insane. Finally, the Geneva Convention also states that in order to receive POW protection under this category, the rebels/fighters must "carry arms openly and respect the laws and customs of war." Again, neither of these apply.

Clearly, al Qaeda poses a challenge for the Geneva Convention because its fighters do not fall into any protected category of fighters and are therefore unlawful. This is where the "unlawful combatant" status comes from. Terrorist fighters simply do not satisfy any of the requirements laid down in 1949 that govern prisoners of war.

Fundamentally, I have no problem with not awarding POW status to these people. If al Qaeda began to respect the rules of war, began wearing insignia, had a government they answered to, and openly carried their arms, then they would be protected as POWs and if they weren't, it'd be a war crime. But since they do none of those things --and never will-- it just doesn't make sense to give someone the protections of a document they do not respect or recognize.

The question for me, though --and I hope it is for you, too, after having read the above-- is whether or not a US citizen can be declared an enemy/unlawful combatant. Inasmuch as Padilla is a US citizen, and is therefore under the control of a legitimate government, shouldn't he be processed under our judicial system? Or is our battle against terrorism strictly a military one, and therefore under the control and guidance of the miltary?

Tough questions.

raid517

Arbitrary power is the instrument of abuse, There must be some degree of formal oversite of these powers that can monitor the status of detainees. A country that imprisons its citizens without charge and without legal representation can hardly claim a moral imperative when other supposedly less developed countries do it.

In the UK our government has adopted similar laws (well unsurprisingly they are more or less identical, as the UK does pretty much everything the same as the US) - and there is the same kind of debate about it here.

This is just another grab for more power by the politicians. Whether you felt people were a security risk or not, you should never have the power to place them outside of the law. There is nothing to prevent some form of (possibly secret) independent overview. How exactly would this endanger national security? The only danger is that they would be proved innocent - and if they are innocent they deserve to be released anyway.

Q

JavaFox

I agree with your basic points. There needs to be some sort of check to the ability of the executive branch to declare a US citizen an enemy combatant. At the very least, there needs to be clear guidelines as to when it can be imposed, and there needs to be limits. It is simply not good enough for our Secretary General to say "Don't worry about it, there's no reason we'd go after you" in response to the question "What assurance do other Americans have that they won't be treated the same?" -- as Mr. Ashcroft basically did in a recently televised interview. That isn't good enough.

However, the danger and difficulty in dealing with all terrorists within our judicial system is clear. Firstly, it is difficult inasmuch as many of the terrorist we've captured were captured in battle. As a result, it is unreasonable and illogical to suggest that the cirumstances are the same as any criminal arrest. There is no military apparatus with which to, for example, collect evidence and dust for prints after a gun battle. There is a long precedent for military justice substituting for civilian justice -- the reason for that is that the circumstances are so different.

Second, having completely open and public trials for terrorists is plainly dangerous on a few levels. Most importantly, it would allow terrorists to reveal information regarding military actions and would give them an avenue with which to communicate with their ilk. This is not to say I agree totally with our use of military tribunals. While I do feel that the trials are as fair as any, the implementation has too many arbitarily decided procedures and too little oversight.

On a side note, raid, I am interested in hearing what critiques you might have of my reading/interpretation of the Geneva Convention vis a vis prisoners of war. I am sure you have an interesting perspective to add, and I mean that very sincerely.

PoopyTheJ

Actually my reply is from Thomas Jefferson,
In a letter to Madison, Jefferson indicated what he did not like about the proposed
Constitution. ??First the omission of a bill of rights providing clearly and without
the aid of sophisms for freedom of religion, freedom of the press, protection
against standing armies, restriction against monopolies, the eternal and unremitting
force of the habeas corpus laws, and trials by jury in all matters of the fact triable
by the laws of the land and not by the law of Nations. . . . Let me add that a bill
of rights is what the people are entitled to against every government on earth, general
or particular, and what no just government should refuse, or rest on inference.??

This is the danger that the US and the robot republicans are falling into willy nilly. The dems aren't much better but you do hear a squeek now and again of protest. We're talking about inalienable human rights granted by GOD. What right have we any of us, simple clerk or government muckity muck to declare oh you know God didn't want HIM to have any rights. These rights are inalienable, immutable and we are not to F with them. How can we as a country talk about how great our constitutional form of government is when we throw the thing out the window every chance we get. Hell even Congress during the hearings about going to war in Iraq one of the speakers, outta mind right now, said that the constitution was outdated and ineffective. they needed to handle this differently. I dunno about you but that scares the living bejesus outta me. Geneva convention is all well and good but don;t forgt this was writtten up by a bunch of wealthy nations. Not poor ass bastards living under repression unable to get weapons or uniforms, or to have a prayer in hell fighting a war the way the enemy wants to fight it. In the Art of War Sun Tsu made it very clear that you make your enemy fight your way, you destroy his supplies, you hit him where and how it hurts. These people are fighting a war, the same as any other war in that they are fighting for what they believe in. As far as protections, these people have these protections already under the constitution. A far more important document.

I must say there is nowheere in the constitution which says go ahead and suspend the constitution in cases where it's most convenient or practical. If we're gonna be the good guys here then dammit lets be the good guys. Lets do thing's correctly, honorably and by the LAW OF THE LAND. Not some overgrown coke fiends dreams of omnipotent guidance from above.

Not flaming you here Java I just feel very strongly about the destruction of the USA.
Later

raid517

The Geneva convention was previously the benchmark that defined 'civilized countries' from 'uncivilized countries.' Not so long ago only the worst regimes in the world could be openly accused of ignoring the rights of prisoners of war. For me that benchmark still holds, even if the US has decided to ignore it. The bottom line is we all know that it's simply a technicality that allows your government to hold these people without rights or representation. The mere fact that they did not wear uniforms is hardly any excuse. In all likelihood they probably couldn't afford uniforms anyway.

In any case I understand all your military speak, but without civilian oversite of such matters what you end up with is a military dictatorship, or junta - where military imperatives become more important than the rights and freedoms of the people at large. The military will always have different priorities from the civil and public authorities. For the military, the law is undoubtedly an obstacle in allowing them to achieve their objectives. Sometimes however, they need to be reminded that their true objective is to fight to preserve all of the freedoms we are fortunate enough to enjoy - rather simply than suggest it might be expeditious for us to surrender them. (Currently the military and government line is that you must curb certain rights and freedoms. Personally I think you should ask them why they are not prepared to fight to defend their constitution, as they promised to do in the oath they took. Failing to fully defend these rights is simple incompetence).

When your freedom is threatened you must fight harder to protect those freedoms - otherwise it is only the enemy who wins. I do not think I am alone in feeling that if freedom is worth having, it is certainly worth fighting for.

Q

desmo

I agree that there should be some sort of civilian judicial proceedings to determine the merit in declaring a US citizen of being an 'enemy combatant'. Then if such a determination is reached, a time limit is set for how long they can be held before a 'probation hearing' is convened to determine appropriate conditions for release such as electronic monitoring, checkins, etc.

What scares me the most is that the Supreme Court may soon get the Padilla case and rule in favour of the Bush Administration. If that happens it may take a constitutional amendment to re-establish the constitution as the rule of law. Of course the sitting president could declare anyone supporting such an amendment an "enemy combatant" and have them picked up. Just imagine what Nixon would have done with this power? He actually had a plan to have war protestors kidnapped and shipped to Mexico.