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| Fifth Column |
| In Big Shift, U.S. to Follow Geneva Treaty for Detainees |
| 2006-07-11 |
| Oh Goody! Does this mean we get to shoot them now? The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today. As part of its decision, the court found that a key provision of the Geneva conventions, known as Common Article 3, did apply to terror suspects, contradicting the position taken by the Bush administration. Article 3 guarantees detainees a minimum level of rights expected in a civilized country. But what that includes and what procedures should govern their trials is expected to be the subject of lively Congressional debates all summer, beginning with todayÂ’s Senate Judiciary Committee hearings. One of the more intriguing hearings will be held Thursday, when the current top military lawyers in the Navy, Army, Air Force and Marines are due to testify before the Senate Armed Services Committee. Longstanding custom allows serving officers to give their own views candidly at Congressional hearings if specifically asked, and some in the Senate expect the current uniformed lawyers to generally urge that Congress not stray far from the Uniform Code of Military Justice, the system that details court-martial proceedings. |
| Posted by:DanNY |
| #15 NS, I agree fully, we should accept reality. Let us be done with it, sooner the better. |
| Posted by: bombay 2006-07-11 22:46 |
| #14 Thanks for the "Each Party" info JAG. Might take all the lawyers on the planet to get the terrorists to agree however. They're too much into the 'Chop Chop Square' thing. For my part, if I never saw or heard from another donk lawyer I'd be very pleased. Shakespear was right, "hang them firstly." |
| Posted by: Besoeker 2006-07-11 21:01 |
| #13 Right, sorry for the imprecise language. The GCs permit the detaining power to hold anyone, up to and including POWs, for the duration of the conflict. I tend to think of that as "as long as we want" because this conflict is likely to outlast us all. Common Article 3 is actually pretty specific: In the case of armed conflict not of an international character This is important. This means internal armed conflicts, civil wars -- inapplicable to the US in Iraq & Afghanistan. Common Article 2 is the relevant one -- it says the GCs are applicable in their entirety to international conflicts, "even if the state of war is not recognized by one of them." US policy has long been to comply either way. occurring in the territory of one of the High Contracting Parties, Iraq and Afghanistan both ratified the GCs in 1956 -- and the GCs have become customary international law by now, binding even non-signatories. each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed out of combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. POWs have the right not to be interrogated and the right not to be prosecuted, except for crimes commited while in custody. That "regularly constituted court" part is what the Sup. Ct. was all ornery about. Bottom line, everything the critics whine about is stuff we already do -- and were doing long before GWOT. US policy has been to comply with the GCs in all conflicts, whether legally required to or not. So this "dramatic shift" business is illusory, other than in perception. I don't see how it will change much at all about the way we actually do business. |
| Posted by: exJAG 2006-07-11 19:00 |
#12 The vague 3rd Article of the Third Geneva Convention:In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: This entire problem goes away, and so do many attendant problems, if we simply kill them all while they are still taking part in active hostilities. It seems to me very clear which side has continuously and as a matter of policy, without punishment for offenders, violated this agreement in every major term and abrogated its right to any protection under it. We should fight this war exactly as we fought in the Pacific Theater in WWII. It did not prevent the Japanese from making peace with us and living together for 40 years now. The sooner we start, the fewer horrors the world will have to endure. Let's get it over with. |
| Posted by: Nimble Spemble 2006-07-11 18:51 |
| #11 The headline is an overstatement. Bush is acknowledging the Supremes authority (while interviewing additional judical candidates) without accepting the decision. Two attornies stated as much today during Senate hearings. |
| Posted by: Captain America 2006-07-11 18:35 |
| #10 "But now we're going to toss out what the GC says in favor of what people WANT it to say. We're bound by imaginary laws; our enemies are bound by none. Unless we stop this nonsense we cannot win, because it's quite clear we don't want to win." No,youre missing the point. Third Geneva is MAINLY a long document with lots of detailed stuff about POWS and how to treat them. Article 3 of third Geneva is a short, vague section that assures everybody some baseline minimal rights. Even non-POWS. This decision does NOT accord the detainees full POW rights, (which would mean the right to be detained only for the duration of the conflict, and the right NOT to be interrogated, IIUC) but only the minimal vague, rights under article 3. Now that includes the right not to be subject to degrading treatment, but we've ALREADY moved to that, with regard to MILITARY prisons, including Gitmo. It also seems to require standards for trials, WHEN they are tried - but the UCMJ seems to be in accord with that. Now there are SOME aspects of the UCMJ procedures that would seem to be problematic for AQ terrorists (like facing your accuser - a big problem if theyre killing informants) But who says we have to have trials for ANYONE? We dont. We just keep them and dont try them, like POWs, except that since theyre not POW's, we can hold them as long as necessary. At least thats my understanding. |
| Posted by: liberalhawk 2006-07-11 17:54 |
| #9 detain them as long as we want (okay even for POWs). Or at least for the duration of the conflict.. and the WOT will last decades. Hicks and the other scum will grow old waiting in Gitmo. |
| Posted by: john 2006-07-11 17:43 |
| #8 There has to be a penalty for not following the Geneva conventions. When you don't wear a uniform and get caught on the battlefield, you are not entitled to the protections that those who follow the conventions are entited to. Rob Crawford's point about "imaginary laws" is spot on. |
| Posted by: john 2006-07-11 17:41 |
| #7 I would think Scalia's dissent would get a careful reading by Congress. Seems to him the Supremes flipped off Congress pretty well. |
| Posted by: Nimble Spemble 2006-07-11 17:03 |
| #6 I see it differently. This represents basically no material change in how prisoners are actually handled. The DoD has long complied with the GCs in all conflicts as a matter of policy. Nothing in the GCs accords POW status to Gitmo detainess, so our position doesn't change at all. We'll continue to interrogate them (not okay for POWs) and detain them as long as we want (okay even for POWs). One of the major issues in the Hamdan ruling was that military commissions do not meet the GC's "regularly constituted court" standard to prosecute war crimes. For whatever reason, the Sup. Ct. said ad hoc courts don't meet that standard, which is what all courts-martial and military commissions are. But that's easy to fix. The pres can appoint a panel of officers (say, military judges) as a new, permanent federal circuit court -- a "war crimes" court -- or something along those lines. Problem solved. Further, under the GCs, ad hoc military commissions DO meet the standard to prosecute crimes committed while in custody (like the ambush last month). Commissions haven't been outlawed, and they still have utility. And, of course, nothing prevents commanders from hunting down terrorist scum and killing them on the spot like the dogs they are. In other words, this "new policy" represents no tangible change at all. About the only thing that changes is the appointing authority. Big whoop. The Senate committee hasn't even started discussing how to deal with the Hamdan ruling, a process I expect to take months, at least. Congress doesn't overrule the Sup. Ct. very often, but they can. I'm not sure Hamdan was bad enough to make it necessary. So this "new White House policy" seems like a huge publicity stunt, intended to appease the rabid left and make them think they've won some kind of victory, when they haven't won shit at all. Clever -- but it also looks like an admission of wrongdoing, which it ain't. My $0.02. |
| Posted by: exJAG 2006-07-11 16:36 |
| #5 This is a disaster. |
| Posted by: Hupatch Flomolet2475 2006-07-11 13:55 |
| #4 Also, IIUC, article 3 still doesnt give them POW status. They can still be detained indefinitely, and can still be interrogated. No shit they're not entitled to POW status. That's been the administration position -- and mine -- all along. They're not protected by the GC because the GC is quite explicit about who is protected; terrorists in general and AQ specifically fall far outside the definitions. But now we're going to toss out what the GC says in favor of what people WANT it to say. We're bound by imaginary laws; our enemies are bound by none. Unless we stop this nonsense we cannot win, because it's quite clear we don't want to win. |
| Posted by: Rob Crawford 2006-07-11 13:37 |
| #3 dont panic (for those of you so inclined) this applies to military prisons only. IE not CIA prisons. The really important detainees wont be effected, only the cannon fodder being held at Gitmo. And we can still toss people to "friendly" countries as appropriate. Also, IIUC, article 3 still doesnt give them POW status. They can still be detained indefinitely, and can still be interrogated. The end of civilization may be upon us, but probably not because of this. |
| Posted by: liberalhawk 2006-07-11 13:16 |
| #2 Simple - dont detain them anymore. All illegal combatants (according to the same GC) get summarily shot dead in the field. End of problem. |
| Posted by: CrazyFool 2006-07-11 12:59 |
| #1 Oh Goody! Does this mean we get to shoot them now? It would if by "follow Geneva treaty" they meant "follow what it says". Unfortunately, they mean "follow what we think it says". How many years does civilization have left? We're not gonna win this one -- not enough of us want to -- so I need to plan on seeing and enjoying some of the fruits of civilization before they're gone. |
| Posted by: Rob Crawford 2006-07-11 12:51 |