By Cernig
John McCain was a POW, and was tortured while in detention. You'd think he of all people would know that the Geneva Conventions apply to all detainees and are judicially enforceable in habeas proceedings. The Conventions specify that any combatant is to be designated a POW until their status is determined by a judicial review and enshrine detainees rights of habeas corpus for the purposes of such a review. By virtue of the U.S. being a signator to the Conventions, by constitutional provisions for such treaties to be U.S. law, and by specific acts of U.S. law upholding the provisions of the Conventions and other international treaties, habeas rights in respect of challenging unlawful detention or detention for torture are encoded in American law in an indelible manner - they cannot be wiped out by sophistry or parsing.
Yet McCain, along with the rest of the American Right, is trying to do exactly that by following former AG Gonzales assertion that non-citizens have no rights under the U.S. constitution whatsoever. Despite that document, in several places, making the distinction between "persons" and "citizens" in affording the former rights, they insist that anyone who is not a citizen is not a person under the constitution.
That, not the Supreme Court's action yesterday, is "one of the worst decisions in the history of this country". McCain has joined with those in the Bush administration who have broken the international laws of war - war criminals - and given up any pretense at the moral high ground afforded by his past.
The Supreme Court's majority got it right. That their getting it right may well mean some bad people walking free is the fault of the Bush administration's course (and now McCain's) in pursuing illegal detentions beyond legal oversight, rather than of the Court.
Within hours of the court's decision in the combined cases known as Boumediene v. Bush and Al Odah v. United States, attorneys were preparing to demand hearings for detainees long held without charges.
These habeas corpus hearings before federal judges will force the Bush administration to reveal its evidence and expose publicly how the detainees have been treated. Some attorneys think that the administration simply will start releasing detainees to avoid the potentially embarrassing hearings altogether.
"Frankly, I don't think the government is going to want to continue to hold these detainees," predicted Matthew MacLean, co-counsel for a detainee named Fawzi Khalid Abdullah Fahad al Odah.
Eugene Fidell, the president of the National Institute of Military Justice, agreed that the court ruling would provide "additional incentive for the administration to repatriate as many people as possible."
MacLean, a former Army prosecutor, noted that 100 to 200 detainees have had habeas corpus petitions on hold waiting for the Supreme Court to rule. Now that it has, Odah and others can pursue their cases before an assortment of judges in the U.S. Court of Appeals for the District of Columbia Circuit.
...Kennedy and four other justices further concluded that the detainees deserved full habeas corpus access to federal courts, despite congressional efforts to curtail it. Through habeas corpus hearings, prisoners can challenge the legal basis for their incarceration.
In the hearings, the burden will be on the government to show that it has sufficient evidence that the men are enemy combatants and can be charged with crimes. While it's unlikely that any of the detainees will appear at the hearings, they'll be able to offer exculpatory evidence. Judges can settle on remedies that include ordering release.
The Geneva Conventions make a distinction between unlawful enemy combatants and POWs... in a nut shell, not all people who act violently are treated equally. Uniformed soldiers obeying a chain of command that answers to a sovereign state (with which other states may sign peace treaties) is not the same legal thing as some civilian who takes it upon himself to attack wily nily civilians. The former are soldiers - POWs, the latter are terrorists.
ReplyDeleteJohn, you're correct. What you are missing is that the Conventions specify a judicial hearing including habeas rights to determine that status, and that detainees are to be considered POWs, with full rights of that designation, until they are determined to be unlawful combatants by such a hearing.
ReplyDeleteuh huh, and that's how we processed the Japanese, Germans, Koreans and Vietcong we captured in past battlefield wars was it?
ReplyDeleteDid past wars involving "partisans" have nice little US civilian court judges running along with the GIs to make sure we didn't abuse irregulars of their Miranda Rights?
I didn't think so.
This is called "if you can't beat them, move the goal posts".
John, I can't figure out whether you're being dense on purpose.
ReplyDeleteThose other cases were unproblemmatic because no-one wanted to classify the detainees as other than POWs, so detainee status reviews, Miranda Rights statements, and "judges running along with the GIs" (actually, in rear areas at holding camps, within 30 days, as set down by the Conventions) were not required.
Even now, that could so easily be an option in the "War On Terror". Simply accord detainees POW status, try them under the USMCJ and apply the punishments from that code to those found guilty, up to and including the death penalty.
Why not?
You really should refrain from writing on topics you know nothing about, but then you wouldn't have much to do with your time, would you?
ReplyDeleteYou haven't just sipped the kool-aid, you bought it, got out the pitcher, mixed up the packet and drank the whole thing. Your editorials are so consistently skewed. You simply pick the most "progressive" result and then reverse engineer your writing to reach that result. A boring and useless exercise in self congratulation on how smart you think you are.
For U.S. The Convention of 1949 is the applicable reference. You will find a reference to it at http://en.wikipedia.org/wiki/Third_Geneva_Convention Article 4 defines who is afforded the protection of POW Status. �that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I); � being the operative sentence in this case. Note the Congress rejected both Protocol I and Protocol II, so nether applies to the U.S. And this is where the confusion lies. Leftists, and the ACLU base their Guantanamo cases as if the two Protocols are applicable, which they are not, on several grounds. First, of course, the U.S. Is not a signatory of the two protocols. And for good reason. Article 4 specifically requires that combatants have a fixed distinctive sign, and that combatants who do not can, after determination by a competent authority (see Article 5), be summarily executed. The competent authority is four officers of the detaining power. And the standard is equivalent of our 'preponderance of evidence'. This was specifically done to REDUCE civilian causalities by making the penalty for impersonating a civilian so extreme.
ReplyDeleteUnfortunately, the above article is extremely poorly written. References to the required treatment of 'unlawful combatants' quote from Protocol I and II, and the International Humanitarian Law, none of which the U.S. Were signatories, and thus do not apply to the U.S.
Second, if one argues that enemy combatants qualify as POW's, as the ACLU holds, then one is in something of a quandary. For the Geneva Convention specifically prohibits POW's from facing civilian courts of the detaining power! In simple terms, holding the 'POW's' at Guantanamo until hostilities cease, is perfectly legal under the Geneva Convention. As was done in every previous war fought under the Geneva Conventions. This isn't Rocket Science, People. Requiring a Federal Judge, rather than a Military Tribunal, determine their status, is a clear violation of the Geneva Convention! Now here is the interesting part. The Military has been holding military tribunals as called for by the Geneva Convention of 1949, and have made determinations releasing HUNDREDS of detainees at Guantanamo. Now that the ACLU has 'won', however, the Military Tribunals are required to cease. And those detainees innocently held are condemned to be detained indefinitely. Way to Go!
As usual, Liberals do things based on 'Feel Good', rather than facts or results. And if it hurts those they are trying to 'help', well, it really doesn't matter to them. Ask the Iraqi's who died under Sadam. Liberals long to place them back under a repressive dictatorship with no respect for human rights. Ask the millions of African Children who have died from Malaria. Liberals hold expensive conventions, calling on them to live in squalid, disease-ridden conditions with polluted water, no sanitary facilities, etc, in the name of 'saving Gaia'. Ask the homosexual teens who are hanged by the dozens in Iran. Liberals cheer Ahmadinejad's statement that 'there are no homosexuals in Arab Cultures.' Ask the millions of Cambodians who died in the 'Killing Fields' which Liberals first denied, then forced President Ford to ignore. Ask the tens of thousands of black Africans currently held in slavery. Ask the million plus who died by machete in Rwanda. Ask the hundreds of thousands who are dying still in Somalia.
Ask...Why heck, just stop the next child you see, and tell him or her that you firmly believe their mother is entitled to have killed them. And you believe that because you are so 'Enlightened'.
Now, excuse me while I go pound the wall in frustration.
Peter, how would you know? You're not a regular reader. Newshoggers regularly challenges group-think from the Left as well as the Right.
ReplyDeleteMhatlau, great rant. The first couple of paragraphs actually made sense - you're correct that if the Bush administration had just aclled the detainees POWs then civil courts wouldn't have jurisdiction. But you ignored the crucial fact that the Bush administration wanted to accuse the detainees of crimes too - which means a trail. And military trials don't accept evidence gained by torture. Thus the parsing of terms to come up with a beast neither fish nor foul - the "unlawful combatant" that was never properly designated as such by a hearing with the detainee possessing habeas corpus rights.
After that, though, you just lost the plot.
Regards, C
The Bush administration have always been shooting for a de facto policy of indefinite detention by legal delay. They have zero interest in trials, even where the evidence was overwhelming ( captured bearing arms in battle, for example).
ReplyDeleteNone of this is hard or unprecedented. Fighting out of uniform and targeting civilians are war crimes and have always been regarded as such for the last century going back to the original Hague Convention which dealt with "spies and saboteurs". All a courts-martial or military commission needed to do was establish that the detainees were combatants and into the clink at hard labor or to the firing squad they go. It's a low bar. Anything beyond that - such as proving a particular atrocity or specific crime - is gratuitous.