D.C. Circuit: Military Tribunals A-Okay.

July 15, 2005 11:19 AM

D.C. Circuit: Military Tribunals Just Fine, Thanks.The U.S. Court of Appeals for the D.C. Circuit unanimously rejected an appeal by an Afghan who is being detained by the military to the tribunals established by the President's Court order in 2001. The decision reversed a federal trial court ruling that the tribunals violated the Geneva Convention.
posted by esquire (67 comments total)

Nothing good can come of subverting the geneva convention, international law, and basic constitutional protections.
posted by stenseng at 11:29 AM on July 15, 2005

A cynical man might argue that the judges on the DC Circuit Appeals' courts are jockeying for a better position on Bush's "prospective SCOTUS nominees" list...
posted by clevershark at 11:37 AM on July 15, 2005

Damn activist judges.

Good one clevershark. "a cynical man might ..."
posted by nofundy at 11:40 AM on July 15, 2005

The lower court did not rule "that the tribunals violated the Geneva Convention." It ruled that a seperate tribunal must be held to determine whether the Geneva Convention applied to this prisoner. That's quite a big difference, really.

This ruling states (A) the Geneva conventions do not apply and thus no indpendent tribunal and (B) even if the Geneva Convention did apply, the DOD tribunal that the lower court ruled against would have been sufficient. And (C) The court further ruled that the tribunals need not apply the UCMJ, which offers may procedural protections to defendants. There's other stuff in the ruling, but that's enough for now.

I expect that (C) will actually be the most contentious point down the road.
posted by Jos Bleau at 12:06 PM on July 15, 2005

esquire posted "President's Court order in 2001."

Not to be picayune, but I think it was an Executive Order.
posted by OmieWise at 12:10 PM on July 15, 2005

Ok, someone needs to explain this to me because I'm having a hard time seeing how these prisoners aren't either:

a) Soldiers protected by the Geneva Convention
or, if not soldiers,
b) Criminals in US custody and therefore Constitutionally protected.

Isn't lumping these prisoners into some "other" category a dangerous exception to the rules that we supposedly hold close and dear to ourselves as a nation?
posted by Jon-o at 12:11 PM on July 15, 2005

Ok, someone needs to explain this to me because I'm having a hard time seeing how these prisoners aren't either:

a) Soldiers protected by the Geneva Convention
or, if not soldiers,
b) Criminals in US custody and therefore Constitutionally protected.

Disclaimer: I'm not in favor of the tribunals. That said, here's the legal argument, as I understand it:

A. They're not soldiers. Soldiers must wear a standard uniform, or insignia showing their nationality. They must be part of a regulated army. Otherwise, they count as spies. This is why in wartime, a POW gets sent to a POW camp, while a spy can potentially be shot. It's also why a soldier that is on duty is pretty much always dressed in recognizable military clothing.

B. They're not American citizens, and their crimes did not take place on American soil. So they don't classify as standard criminals.

Hence, the ambiguity. Argument a, IMHO, has some validity, but b is pretty much crap, and I think that if these tribunals ever get overturned, it'll be because of this.
posted by unreason at 12:52 PM on July 15, 2005

Thanks for that cogent explanation, unreason. I didn't know a) at all, and I had long wondered what possible legal rationale supported the "enemy combatant" stuff.
posted by Marquis at 12:59 PM on July 15, 2005

The argument saying the Geneva conventions don't apply is deeply dubious. The Geneva conventions were written as broadly as was imaginable *at the time* to cover people participating in war. What we call "international terrorism" now was quite literally unimaginable at the time the Geneva conventions were drafted. (the communications technology just was not there) The only way possible to wage war at that time was with an organized army of SOME sort, so that's how it was written.

To claim it doesn't cover "enemy combatants" might be semantically correct, but is absolutely against the *intent* of the document. It would be like saying the First Amendment doesn't cover what I'm writing here, since the Internet didn't exist in the 18th Century.
posted by InnocentBystander at 1:12 PM on July 15, 2005

Thinks back to the kindergarten explanation of why we won the Revolutionary war, because the redcoats were so easy to spot in the forrest while our militiamen wore their regular clothes and blended in...
posted by nomisxid at 1:17 PM on July 15, 2005

Hey, nomisxid don't you know it's Unamerican to discuss how we pioneered the guerilla war? We won a straight-up fight against the Brits, don't you know, without the slightest hint of terrorism about it.

Those East India Company ships and personnel were just one step away from being government anyway. They were completely legitimate targets.

/drip... drip... drip...
posted by InnocentBystander at 1:21 PM on July 15, 2005

B. They're not American citizens, and their crimes did not take place on American soil. So they don't classify as standard criminals.

A further clarification of the argument in "B" is also that some enemy combatants aren't being held because of their "crimes", they're being held because they were captured in combat and if released they'll get back to the business of killing Americans. In conventional wartime it's common and accepted that prisoners-of-war are held without being charged with any crimes --- the point is that they were fighting lawfully (no crime) but can't be released since they'll just go re-join their old unit and start shooting again. The solution is to hold them (under the Geneva rules) and release them when the war is over. The same logic can be applied to the current batch of "enemy combatants" --- they might not have comitted crimes worth punishing, but if released there is a significant risk that they'll go back to fighting.

The problem, of course, comes when we're fighting a war without a clear endpoint. The problem is complicated by the fact that in conventional war it's really clear when Side A has captured a soldier of Side B --- hence the requirements in Geneva for uniforms, insignia, weapons in the open, etc. In the current situation it isn't clear that the capturees are actually fighting for the "other side", so there should be some sort of tribunal to establish whether they are actualy "enemy" or not. The problem is that tribunals aren't usually set up to do that sort of work and most Americans expect a court to try criminal charges, not just determine that somebody is for the "other side" and thus can be held indefinitely.
posted by thedevildancedlightly at 1:22 PM on July 15, 2005

So, if the Geneva conventions do not apply because the people we capture are not prisoners of war, then... clearly this can't be a war. We're not at war. The War on Terror is over!
Um. Cool. (Did we win?)

This guy was Afghan. Could the ruling be any different if was Iraqi?
posted by -harlequin- at 1:23 PM on July 15, 2005

The Circuit Court also ruled that the Geneva Convention does not create 'privately enforcable rights'. That is, the court decided that even if the Convention applied to the prisoner, and even if his rights were violated, he is still not allowed to sue in a federal court because no one can bring suit within the United States for violating the Geneva Convention for any reason, no matter what.
posted by Jos Bleau at 1:28 PM on July 15, 2005

So, if the Geneva conventions do not apply because the people we capture are not prisoners of war, then... clearly this can't be a war.

No, the Geneva Conventions only apply to some types of war. As pointed out above, that might be an oversight on the part of the drafters (they hadn't imagined post-Vietnam war yet), or an intentional decision to say that "you only get protections if you play by the rules of 'civilized' warfare".

Further, even in the middle of a "conventional" war there may be some combatants who don't qualify for Geneva protections (namely by not following the rules about open arms, uniforms, insignia, etc). They would be part of a war, but not "prisoners of war" under Geneva.
posted by thedevildancedlightly at 1:28 PM on July 15, 2005

This guy was Afghan. Could the ruling be any different if was Iraqi?

even if the Convention applied to the prisoner, and even if his rights were violated, he is still not allowed to sue in a federal court because no one can bring suit within the United States for violating the Geneva Convention for any reason, no matter what.

Well I guess that answers that. Even undeniably genuine POWs are SOL if denied their GC rights. SNAFU.
posted by -harlequin- at 1:32 PM on July 15, 2005

This guy was Afghan. Could the ruling be any different if was Iraqi?

Probably not. Reason being, he wouldn't have been working for the Iraqi government, but for a rebellion. If he'd been captured before Hussein left power, he'd probably count as a soldier though. Unless he committed a war crime, in which case all bets are off.

Thinks back to the kindergarten explanation of why we won the Revolutionary war, because the redcoats were so easy to spot in the forrest while our militiamen wore their regular clothes and blended in...

Actually, this was an issue. The British argued that since our troops were not under a legal government, that they did not count as soldiers and could be treated any way that the British liked, which could mean execution, or other nasty things. The situation only changed when the American leadership threatened to treat British troops in the same way. Afterwords, Americans were treated as soldiers, but only because of this understanding, not because they were recognized as legal troops.
posted by unreason at 1:33 PM on July 15, 2005

The problem is, the US is supposed to be better than this. We're resorting to legalities and semantics as an excuse to deny basic human rights, and that is OBSCENE. We are supposed to be a beacon to the rest of the world ... not a thug holding up a bigger club than anyone else.

And if we won't respect the geneva conventions, what POSSIBLE reason would our foes have to do so?
posted by InnocentBystander at 1:37 PM on July 15, 2005

Further, even in the middle of a "conventional" war there may be some combatants who don't qualify for Geneva protections (namely by not following the rules about open arms, uniforms, insignia, etc)

It sounds like this shadowy "Valarie Plame" person may have been exactly this kind of dodgy illegal character. Good thing she was discovered before she could do too much damage. Props to the brave hero who risked life and limb to take her out, for King and Country. Damn. Y'know, in Blackadder Goes Fourth, this kind of crap was funny.
posted by -harlequin- at 1:38 PM on July 15, 2005

Just so long as everyone is prepared for "what's sauce for the goose is sauce for the gander," it's all cool.

I don't wanna hear any more whinging when American citizens are tortured.
posted by five fresh fish at 1:50 PM on July 15, 2005

One of the key precedents cited in this case was Ex Parte Quirin, which was the subject of a (mine, for the record) FPP years ago; that article is still viewable at the Wayback Machine. Worth a read to understand the legal bases for this decision.
posted by norm at 1:59 PM on July 15, 2005

I'm sorry, but I just don't see anything we're doing to these detainees as violating "basic human rights."

They are being given a hearing before a magistrate, there is no question about that, the only question is about what sort of hearing they will receive.

They are being interrogated, but not incredibly harshly. There's some heavy handed techniques being used, but nothing that sinks to the level of pure physical torture.

The whole "we should be better than our enemies" line is absurd. We ARE better than our enemies, we are not targeting school children, we are not executing prisoners summarily. We are conducting the closest thing to a standard war that is possible when faced with this kind of enemy.
posted by Bulgaroktonos at 2:05 PM on July 15, 2005

Just so long as everyone is prepared for "what's sauce for the goose is sauce for the gander," it's all cool.

This decision doesn't relate to the content of the tribunals, just the format (military or civilian). Given the much greater speed of a military tribunal, it's not such a bad thing. I think if Americans were held overseas and given military tribunals with protections equivalent to those available here then there is no grounds for complaint.
posted by thedevildancedlightly at 2:06 PM on July 15, 2005

I don't see how Quirin is anything but a VERY shaky precedent in this case. If we're talking about saboteurs on American soil, then it applies. (maybe) But this "enemy combatant" argument is basically saying we can invade a country and ignore the Geneva conventions for anyone we catch attempting to defend us.

Like we're creatively redefining conquered lands to be native soil before the battle is even over.

And that's simply insane. If we're invading a country, how can someone defending their homeland - EVEN if not officially part of the army - not be a legitimate, legal combatant?
posted by InnocentBystander at 2:18 PM on July 15, 2005

Bulgaroktonos

You're saying we're somehow better because rather than suicide bombing, we just carpet-bomb villages from a distance?

We routinely kill dozens of civillians while trying to take out "terrorist cells." It happened again in Afghanistan just a couple weeks ago.

The fact that we go "oops" afterwards doesn't change a thing.

And if you think a "hearing" before a military tribunal which has no reason to set these people free and EVERY reason to keep them in containment, regardless of whatever the particlar facts of their case are, is the same as a legitimate habeas corpus hearing, then you are sadly deluded.
posted by InnocentBystander at 2:23 PM on July 15, 2005

If we're invading a country, how can someone defending their homeland - EVEN if not officially part of the army - not be a legitimate, legal combatant?

I haven't read Quirin, but it seems that the US is calling them official legal "combatants", just not Geneva "soldiers." The Geneva Convetions address your point reasonably directly and don't extend protection to organized resistance unless they follow the "laws of war", which preclude acts such as suicide bombings and targeting of innocents. Thus there is no basis why the US should have to apply Geneva, even if it is a good idea to do so.

Article 4, Part 1[The following groups are protected under the Geneva Conventions:]
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

posted by thedevildancedlightly at 2:28 PM on July 15, 2005

And if you think a "hearing" before a military tribunal which has no reason to set these people free and EVERY reason to keep them in containment, regardless of whatever the particlar facts of their case are, is the same as a legitimate habeas corpus hearing, then you are sadly deluded.

A habeas corpus hearing is useful for citizens who are being held in anticipation of being charged with a crime. As explained above, the idea of holding an enemy combatant is that they are a prisoner-of-war and will not be charged with a crime, but cannot be released until the end of hostilities for fear that they will again take up arms and begin killing American soldiers again. Therefore there is a strong argument that habeas doesn't apply since they never will be charged with crimes and are just being detained until the end of hostilities. Admittedly, in a war without a clear endpoint that's a problem (no way to know when to release them), but it's not a problem that habeas is set up to solve.

I do hope that each and every combatant recieves a fair hearing to verify that they are indeed enemy combatants and are released as soon as it is safe to do so. That said, habeas seems to be the wrong route to follow to achieve that end.
posted by thedevildancedlightly at 2:32 PM on July 15, 2005

InnocentByStander, why wouldn't a military hearing have any reason to set them free? The military doesn't want to hold people for no reason anymore than we want them to, it's costly and dangerous. Your criticisms not withstanding, we have not held a single one of these hearings. You can not make a single claim on the basis of what you believe the outcome of these hearings will be, that's just a flight of your personal imagination, it is not argumentation and it is not fact.

As for how we "carpet bomb villages from a distance", if you'll notice I said that we don't target civilians. Can you point out a time in Afghanistan or Iraq when the military has made a decision to attack the innocent for the purpose of terrorizing the population? I don't see that happening.

The attempts to make military action that results in accidental civilian death equivalent to deliberate attacks aimed at civilians is based on a deeply flawed morality that ignores the intention of the actor entirely. We make mistakes sure, but we are trying to find a path between the extremes of acting like our enemies, and doing nothing to protect our security.
posted by Bulgaroktonos at 2:37 PM on July 15, 2005

A little more about what unreason says: the Geneva conventions outline both POW status (3rd convention) for soldiers, and protected person status (4th) for civilians. They are worth a read, especially the first handful of articles for each. They are mutually exclusive statuses, I think, and both are protections to be earned, not automatically gained by just anyone.

As unreason says, you generally have to be something like a soldier to be a POW. Read article 4 of the POW link. You can get away with not wearing a uniform if you didn't have time to form a proper militia unit before the conflict -- which could easily be the case for some detainees from the Afghanistan invasion. In other words "I didn't have time to go out and buy a stupid uniform" is a valid defense. "I'm part of a covert force" is not. I'm not sure about the status of the American mercenaries in Iraq, but a terrorist or secret agent would have no hope of POW status.

So see article 5:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So by default, POW status is granted. If Jos Bleau is saying it right, I think the DC Appeals decision is very weasley: they have in practice declared themselves a competent tribunal by deciding POW status wasn't in question in the first place (despite the obvious fact that it was, or the case would never have come to them). So it was okay not to hand out that default protection. Ass fully covered.

Terrorists are very akin to spies and saboteurs, except possibly worse because they are spies and saboteurs who are specifically seeking to commit war crimes. Despite what Innocent Bystander says, the conventions were written with such situations in mind -- but it took a dim view of those who fight dirty. Read Article 5 of the protected persons link. To my understanding the Bush line on "enemy combatants" is just pushing hard on this article. It lets you hold people awhile, without protection of the convention, incommunicado. Which sounds a lot like the original idea behind Camp X-Ray, I think. Legitimate in the beginning, then perhaps blossoming into something reprehensible (sort of like the War on Terror itself).

Generally the Geneva conventions will protect you if you are an honest soldier or honest civilian.

I'm not a lawyer or historian by any means though.
posted by fleacircus at 2:37 PM on July 15, 2005

Like, people here think the Geneva Convention should apply. What a surprise!

OK, how many here are with me in thinking Guantanamo Bay, "Gitmo," has about 50% too much amenities? Like Rush Limbaugh says, it's Club Gitmo. Less fluffy pillows, please!

Here's what I suggest as an superb psychological technique: give the prisoners kosher food instead of halal food. Normal, non-fanatic Muslims accept Kosher food as proper, but the Islamo-freaks don't--PERFECT!
posted by ParisParamus at 2:39 PM on July 15, 2005

Well, the idea being that if they aren't military, then they're civillians, and therefore must be tried in civillian courts.

And I would fully support THAT too.

But instead we're claiming they're civillians, but yet must be held and tried by the military.

And, while I'm at work and can't research this heavily, IIRC the geneva conventions say we cannot do that. Which is why we have this "other" status which we're using to try to legitimize our acts.
posted by InnocentBystander at 2:42 PM on July 15, 2005

Like, people here think the Geneva Convention should apply. What a surprise!

There's a difference between thinking that all "enemy combatants" deserve to be treated with respect, dignity, and humanity and thinking that they should be subject to a code written 50 years ago that expressly does not cover their situation.

For example, I think that prisoners in the US should be treated with dignity, but I don't think the Geneva Conventions apply to them either.
posted by thedevildancedlightly at 2:42 PM on July 15, 2005

Well, the idea being that if they aren't military, then they're civillians, and therefore must be tried in civillian courts.

And I would fully support THAT too.

But instead we're claiming they're civillians, but yet must be held and tried by the military.

No, they are not "soldiers" under Geneva for all the reasons outlined above, but they are an unlawful militia (or "beligerents" to use the Geneva term) which is recognized as a status that is pretty much "fair game" under Geneva. They aren't civilian since they have committed military acts of hostility, but they aren't part of an organized army meeting the right criteria to be protected under Geneva. It's not an either/or situation.
posted by thedevildancedlightly at 2:44 PM on July 15, 2005

Why are talibani fighters not soldiers? Where did they not follow the four rules outlined by the Geneva convention? They were certainly carrying their arms openly and had a structured command structure. I haven't heard any accusations of atrocities from the soldiers on the ground. It's my impression thaqt most of the people in guantanamo were caught during combat operations.

The only sticking point might be the insignia, but I bet if you wear an Afghani you could tell the Italian apart from the northern alliance.

Plus TDD you left out section 4.6 of the convention which also could include the Italian fighters

"6. 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, provided they carry arms openly and respect the laws and customs of war."

I really can't see how guantanamo is not a blatant violation of the geneva conventions. Not that that will ever matter.
posted by afu at 2:50 PM on July 15, 2005 [1 favorite]

ack spell check went awry, it's been a long night,

that should be Taliban fighters, not "Italian fighters"
posted by afu at 2:52 PM on July 15, 2005 [1 favorite]

BUT THEY WERE DEFENDING THEIR OWN HOMELAND!

This is the part that baffles me. If they were on American soil trying to be saboteurs, I wouldn't have a problem with any of this.

But we are talking about an invasion. We took over a country. And you appear to be saying, in essence, that no civillians not officially part of a military group had the right to *defend their own homeland.* At least not if they wanted to enjoy geneva protections.

That was not the purpose of the geneva conventions, and I fully believe that it IS an either\or situation. Either they are military, or they are civillians. Both these groups enjoy their own protections. We can't invent a new category just to especially punish those who dared oppose us.
posted by InnocentBystander at 2:52 PM on July 15, 2005

The only sticking point might be the insignia, but I bet if you wear an Afghani you could tell the Italian Taliban apart from the northern alliance.

Plus TDD you left out section 4.6 of the convention which also could include the Italian Taliban fighters

"6. 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, provided they carry arms openly and respect the laws and customs of war."

I suspect the key to 4.6 is "respecting the laws and customs of war." I don't know all of what happened on the ground, nor will any of us, but I would suspect that some of the significant acts of guerilla warfare would be sufficient to violate 4.6. That said, the Taliban did not "spontaneously take up arms", they had been organized before and thus aren't eligible under 4.6 and must fit the more stringent requirements elsewhere in 4.

And those damn Italians. Always getting into everything.

And you appear to be saying, in essence, that no civillians not officially part of a military group had the right to *defend their own homeland.* At least not if they wanted to enjoy geneva protections.

No, as afu astutely noted, 4.6 applies to those who carry arms openly and are unorganized. The current Iraqi resistance don't count since they disrespect the laws of war and don't carry arms openly. The Taliban was a pre-organized movement that must meet the more stringent requirements elsewhere in 4.

If you are a resistance group to your homeland being invaded then carry your arms openly and respect the laws of war and then you're protected by Geneva (provided that the old ruler of your nation signed it, as did the invader).
posted by thedevildancedlightly at 2:59 PM on July 15, 2005

"Nothing good can come of subverting the geneva convention, international law, and basic constitutional protections."

Yes, and that would include not pretending they apply when they don't (aren't being violated) to score political points with the President you hate (hereinafter, the "PYH")
posted by ParisParamus at 3:00 PM on July 15, 2005

But we are talking about an invasion. We took over a country. And you appear to be saying, in essence, that no civillians not officially part of a military group had the right to *defend their own homeland.*

Also note that I do want them to be treated with dignity, respect, and humaneness. I just don't think Geneva or habeas is the right solution. Legislation and pressure on the military (based on the actual facts rather than hyperbole) is the right answer. Often courts are really bad at these sorts of cases where they are up against the executve and military (see the mess that these cases have already become). Congress, however, could pass a law tomorrow that would outline the procedure that should be followed when detaining somebody from Afghanistan or Iraq. They should do so. I would fully support them doing so instead of shoehorning the situation into Geneva.
posted by thedevildancedlightly at 3:02 PM on July 15, 2005

Well, I certainly agree with you there. What I object to is holding them for years, without trial, and arguably torturing them the whole time.

That just ain't right.

If there were new laws passed that would outline a fair proceedure for evaluating their cases, then that would be wonderful. But right now the Geneva Conventions are all we got. Well, either that or Bush's ad-hoc "we can hold whoever we want for as long as we want so long as they aren't wearing a uniform" solution.

But even if Congress passed a law, there would STILL be a question of jurisdiction. Bush-as-CnC has declared them to be enemy combatants, and thus under military control. It's yet another interesting question as to whether they would pay attention to a civillian law at all.
posted by InnocentBystander at 3:06 PM on July 15, 2005

Well, I certainly agree with you there. What I object to is holding them for years, without trial, and arguably torturing them the whole time.

The problem, again, is what would you "try" them for? Obviously there are some who are legit criminals (attempting a suicide bombing is probably against international laws of war), but most aren't. Resisting an invasion of your homeland is not a crime and the principle articulated in Geneva that you are allowed to fight a war without being tried for murder applies to these people even if the formal document doesn't.

That said, releasing them while there are still active combat operations in Afghanistan and Iraq is a bad idea since at least some will just go right back to fighting and killing people.

So do you just give them a tribunal to let them disprove that they were actually fighting, and if the tribunal finds that they did fight then it's back in the jail until the war ends? By whose definition does the war "end"? Legit question, I'm not sure what the right answer to that part is.
posted by thedevildancedlightly at 3:11 PM on July 15, 2005

Can you point out a time in Afghanistan or Iraq when the military has made a decision to attack the innocent for the purpose of terrorizing the population?

Firstly, there are such operations. (The one I recall specifically enough about to find a link to was a US operation (in Serbia, not Iraq), to bomb a civilian broadcaster to silence their message - aimed at fellow civilians, not military comms - because the message was not liked. Plenty of similar decisions are made in the other areas also.

Secondly, it seems like sophistry to avoid counting pretty much every strike in an urban area, since in pretty much every case, it is known in advance that there will almost certainly be civilian casualities, and the decision to proceed and kill those civilians is taken nonetheless. That they are called "collatoral damage" and inspecifically targeted does not change the fact that they are targeted. This is the reality, perhaps even the necessity, of the way we wage war.

McVeigh called the children he killed "collatoral damage". Do you remember the American outrage that his use of that euphamism prompted? Yet his use is no different to our use - he had a target, he successfully took that target out knowing ahead of time that he would almost certain kill innocents. He wrote those innocents off as collatoral damage. It didn't wash with Americans, but double standards are everywhere.

This stuff is grey. Not black and white.
posted by -harlequin- at 3:17 PM on July 15, 2005

What are the violations of the laws of war that the taliban fighters commited? Making women wear burkas, not letting people watch titanic? The taliban weren't nice, but I've never heard about any serious acts that violate "the laws of war." The only sticking point I can see is the lack of insignia, but even then there might be cultural specific clothing that might fly.

Anyway, the U.S. is clearly not following Article 5. If they were the Geneva convention would work just fine, and they would be able to keep prisoners in Cuba as long as there are hostilities in Afghanistan and not break the law.

Plus if you take such a narrow definition of the Conventions, it is pretty clear that american forces break the rules all the time. For the sake of the protection of American troops, a broader application of the law might be wise.
posted by afu at 3:21 PM on July 15, 2005 [1 favorite]

Those are all excellent questions. I don't know the answers either - especially since, even if we "pull out" of Afghanistan or Iraq, we're undoubtedly going to leave a token military force there until the Second Coming.

Not to mention that, in the strictest sense, we never declared war in the first place and we've never outlined any clear goals to be achieved or any other indication of a ceasement of hostilities. (except the sudden miraculous disappearance of every scared poor person in the world)

Which, of course, ultimately says more about our style of waging warfare than anything else. That's why I'd rather this be a UN matter. Otherwise, the US has very little *practical* choice except to become ever more dictatorial, and that's not good.
posted by InnocentBystander at 3:22 PM on July 15, 2005

-harlequin

TWICE now we've "accidentally" blown up Al-Jazeera. Missles going off course, into another country, and just happening to hit an A-J broadcast office.

Tell me that's just an accident. (and then they wonder why Al Jazeera isn't friendly towards us... *sigh*)
posted by InnocentBystander at 3:23 PM on July 15, 2005

InnocentBystander:

You might want to change your alias. From reading the news it sounds like people by the name of "Innocent Bystander" have a statistically higher chance of seeing the business end of one of those missiles or suicide bombers than people called "Nearby Witness" :)
Plus, people called Nearby Witness seem to get lots more airtime, which can useful in many careers.
posted by -harlequin- at 3:32 PM on July 15, 2005

So, just to check :
1) These guys aren't protected by Geneva
2) These guys aren't protected by Federal law/constitution.
3) These guys aren't protected under the USMJ.
4) The US can just invade who they feel like, lock 'em up without habeus corpus, and basically there's no right of appeal to military courts or civil courts, or international justice as basically the US doesn't recognise any of that stuff anyway.

Where does this leave them?

In short, these guys are fucked. The US Admin can decide to grant them rights, if they feel like it. But they have no appeal if, for example, the US Admin decides not to grant those rights or, indeed, to arbitrarily withdraw them and just shoot them. Or torture them. Or feed them into a meat grinder, if they really feel like it.

Hey, I know another regime which did that sort of thing ... and the US invaded to prevent those human right violations (or, at least, that's the excuse they're sticking with for the time being). Excuse me while I laugh and cry at the same time.
posted by kaemaril at 3:32 PM on July 15, 2005

B. They're not American citizens, and their crimes did not take place on American soil. So they don't classify as standard criminals.

I was under the impression that (a few) Americans were also being detained. Based on this ruling, wouldn't it mean that their Sixth Amendment rights were indeed violated and therefore they should be freed?

I don't like that happening, but the administration dragged their ass getting to this point, so it's their own fault.
posted by Kickstart70 at 3:36 PM on July 15, 2005

A Guantánamo Exit Strategy [bugmenot]
posted by event at 3:44 PM on July 15, 2005

"In short, these guys are fucked. The US Admin can decide to grant them rights, if they feel like it. But they have no appeal if, for example, the US Admin decides not to grant those rights or, indeed, to arbitrarily withdraw them and just shoot them. Or torture them. Or feed them into a meat grinder, if they really feel like it."

That's correct, but there are provisions of military law which would prevent US armed forces personnel from participating in such acts. US civilians might be constrained (punishable, that is) but there's a whole lot of precedent that says they're not, so it's not likely. There's absolutely nothing to prevent US forces from handing over prisoners to people (foreign governments or 'independent contractors') who would do such things.
posted by Jos Bleau at 3:52 PM on July 15, 2005

In short, these guys are fucked. The US Admin can decide to grant them rights, if they feel like it. But they have no appeal if, for example, the US Admin decides not to grant those rights or, indeed, to arbitrarily withdraw them and just shoot them. Or torture them. Or feed them into a meat grinder, if they really feel like it.

There's a difference between "can" and "will." The international community (inculding the UN) wouldn't stand for such actions, nor would the US population. The right answer is to continue to pressure the government to treat detainees the right way and make this all a non-issue.
posted by thedevildancedlightly at 3:56 PM on July 15, 2005

Sadly, I see very little indication that the public gives much of a damn whether the people in GitMo are treated fairly. Everyone got all upset when they saw the guy with the wires, then some flunkies got tried, and everyone forgot about it. And besides, they're those evildoers that the president keeps telling us about, and he'd know, wouldn't he?

And the idea of the world uniting against us terrifies me more than just about anything else I can imagine. Some people out there seem to view global politics as US vs The World, and they are actively trying to bring just such a situation about.

Why else would we spend as much on our military as the rest of the world combined?

What we need is a president who's not a crazed millennialist that seems more concerned with the next world than this one.
posted by InnocentBystander at 4:00 PM on July 15, 2005

kickstart You're thinking of Jose Padilla, who is indeed an American citizen being detained as an enemy combatant. His appeal is proceeding along its own path, probably unaffected by this ruling.

(I say "probably" because any rational reading of the cases says that it's a totally different problem, but rationality doesn't seem to be anyone's specialty right now...)
posted by InnocentBystander at 4:05 PM on July 15, 2005

Why else would we spend as much on our military as the rest of the world combined?

What we need is a president who's not a crazed millennialist that seems more concerned with the next world than this one.

I'm reasonably confident that Clinton spent more on the military than any other nation... it's not a factor unique to Bush.
posted by thedevildancedlightly at 4:06 PM on July 15, 2005

InnocentBystander: Nope, I'm also talking about these folks.
posted by Kickstart70 at 4:08 PM on July 15, 2005

That is true, Devil. Clinton certainly didn't do much to decrease our military spending.

But he understood diplomacy, and he understood that the US is only the sole superpower so long as the rest of the world doesn't unite against us. All the wars he launched were small and limited, and in between them he actively worked towards patching up relations with some of our bigger foes. (like China and North Korea)

Bush has both massively increased military spending AND for the entirety of his term has displayed nothing but contempt for the opinions of the rest of the world. He's been making the US act like a bully, pushing people around to get its way no matter what anyone else has to say about it.

And people worldwide will put up with that, but not forever. What happens when the middle east sets aside all their various ethnic differences and REALLY decides to start fucking us over the oil barrel? Or if Europe realizes they don't need us and starts actively boycotting US products? Or China, with its 5-to-1 popultion ratio, starts wondering why, exactly, they continue to kiss up to us.

And that's without talking about how a number of foreign powers could crash our economy with virtual impunity, thanks to our suicidal overreliance on deficit spending.

8 years ago, any of these things would have been virtually unthinkable. But we're now acting like such assholes that the global community is already starting to reassess their relationships to us. We are FAR from invulnerable, but the people in power don't realize it.

And this scares me a lot.
posted by InnocentBystander at 4:20 PM on July 15, 2005

thedevildancedlightly : There's a difference between "can" and "will." The international community (inculding the UN) wouldn't stand for such actions, nor would the US population. The right answer is to continue to pressure the government to treat detainees the right way and make this all a non-issue.

Five years ago : Hey, you know those terrorists? Why don't we torture information out of them? Lock them up without trial and charge? Deprive them of any protection whatsoever, set dogs on them, piss on their korans and pretend to spread menstrual blood all over them?

Everyone : Don't be ridiculous! We'd never do that, the public wouldn't stand for it, and neither would the international community ...

Back to the modern day :

US Administration : Well, it's not really torture, 'cos we didn't cripple him too much. And hey, is it really torture if you only threaten to kill his wife and family in front of his very eyes? Of course not! And anyway, if they've got a legitimate grievance they can always take it before a judge ... nah, I'm only kidding about that one.

Uh-huh. Yeah, forgive me if I haven't noticed the US Administration taking serious consideration of overwhelming international condemnation.

Or, for that matter, protests from US citizens. Oh, hey, wait, why would they? Just herd them off into officially designated protest zones and ignore them... or call them traitors and appeasers for not volunteering to pull the triggers themselves, the refusenik peace-loving commies. Why, oh why, do they hate America so?
posted by kaemaril at 4:28 PM on July 15, 2005

Clinton certainly didn't do much to decrease our military spending

One of the big criticisms of Clinton was how much he cut military spending. I don't know if the decreased were large or non-existant or anywhere in-between because "[administration] is underfunding our military to the point of ruin!" seems to be bandied about regardless of actual expenditure or which guy is in the whitehouse. But he was definitely heavily criticised for it.
posted by -harlequin- at 4:35 PM on July 15, 2005

My impression of Clinton was that yes, he decreased military spending by a small amount, and this was vastly overhyped by all his opponents.

But, (some Googling later...) here's a nifty chart I dug up that goes along with what I was saying.

http://www.truthandpolitics.org/military-relative-size.php

OK, yeah, Clinton managed to briefly get us under *gasp* HALF the discretionary budget being spent on the military. But even that is an insanely huge amount.

I suppose the good news is that Bush hasn't QUITE gotten us back up to the levels that the Reagan administration had. But he's about to.
posted by InnocentBystander at 4:46 PM on July 15, 2005

At ANY rate, the point of all this being, if we don't quit acting like jerks, the world is going to turn on us.

And unless we are SERIOUSLY considering using nukes as a threat against economic changes, this is something we don't want to happen.

Our treatment of the Gitmo prisoners and our legal wrangling over their Geneva status is one aspect of this. But accepting the world opinion on the matter (or just handing them over to the UN) would go a long way towards rectifying the public opinion problems we're starting to deal with.
posted by InnocentBystander at 4:50 PM on July 15, 2005

thedevildancedlightly:

The international community (inculding the UN) wouldn't stand for such actions, nor would the US population.

How can you believe this today? Four years ago I believed this. Every new watergate-strength scandal I thought the people wouldn't stand for it, yet every new depth we sank to was deeper than the last, and America just rolled with it each and every time.

If we wanted to feed people into meat grinders, it would be framed as "The death penalty is not only the appropriate sentence, but is the legally required sentance for their crimes, and the punishment must not only fit the crime, but deter other would-be terrorists". Meanwhile, on these forums, apologists would probably be saying "It's been clearly established that US Constitutional protections such as the 8th Amendment do not apply to these people, so it's entirely legal to feed them into meat grinders. Death is too good for them anyway, this is exactly what we should be doing" and worse.

Studies suggest that the depravity people will stand for is little or nothing to do with their innate goodness, but more determined by what their environment is normalising. Abu Graib was not "bad apples", just an example of this - previously good Americans operating in an environment that was normalising extremes. America today is an example of this. If there was an innate and decent limit to what Americans would put up with, we'd have seen it years ago.
posted by -harlequin- at 4:54 PM on July 15, 2005

*cough*MilgramExperiment*cough*
posted by InnocentBystander at 4:58 PM on July 15, 2005

I still don't see much substantive difference between situations where:

a) some sort of military-type unit decides to bomb an area in order to kill civilians, and

b) some sort of military-type unit decides to bomb the same area, not expressily to kill civilians, but with full knowledge that their doing so will kill civilians.

Certainly, to any of the civilians involved there *is* no difference. In fact I would say that the distinction between situations a and b is that in the case of situation b were dealing with a unit which has the opportunity to engage in PR or "spin".
posted by clevershark at 6:33 PM on July 15, 2005

The problem, of course, comes when we're fighting a war without a clear endpoint.

"Major combat operations in Iraq have ended."

And you thought all that double-speak was just bad speech-writing?! It was legal obfuscation so we wouldn't have to repatriate prisoners.
posted by Civil_Disobedient at 10:20 PM on July 15, 2005

Does it surprise anyone that the three appellate judges that handed the administration what the NY Times termed "a significant legal victory" were nominated by noted legal centrists Reagan, Bush 1, and Bush 2? (One is an advisor to right-wing George Mason University's Law Center, another is a former clerk for Rehnquist.) In dismissing all rationales given by the federal district judge in halting the tribunals, their decision used "occasionally disdainful language," according to the same article.

And let's savor some reactions. Here's our Attorney General, Alberto Gonzales: "The president's authority under the laws of our nation to try enemy combatants is a vital part of the global war on terror, and today's decision reaffirms this critical authority." One of Hamdan's attorneys, Neil Katyal of Georgetown U, said, "Today's ruling places absolute trust in the president, unchecked by the Constitution, statutes of Congress and longstanding treaties ratified by the Senate of the United States."

So now all the many trials awaiting this ruling can commence, making us all safer? Well, not exactly. The Times article referenced above mentioned that, of the 500-plus detainees at Guantánamo, exactly four, including Hamdan, have been charged with war crimes. And so it goes.
posted by rob511 at 1:08 AM on July 16, 2005

Rob -- their opinion used occasionally disdainful language because the arguments of the appellee were meritless. This is a silly argument, and whenever you see as many law professors joining an appeal in one side as amici, you can know that the appeal is really more of an exercise in creativity than a bona fide appeal.

Too all who nit-picked about how I used the typo "court order": sue me.
posted by esquire at 7:18 AM on July 16, 2005

what InnocentBystander says.
posted by brandz at 7:52 PM on July 16, 2005