Judge defines enemy combatant status for detainees

[Roland99]

Source: Associated Press

WASHINGTON (AP) — Al-Qaida or Taliban supporters who directly assisted in hostile acts against the United States or its allies can be held without charges as enemy combatants, a federal judge ruled Monday.

The ruling by U.S. District Judge Richard J. Leon takes a first step toward resolving the fate of some of the hundreds of men — many who have been held for years without charges — detained as terror suspects at the U.S. Naval Base at Guantanamo Bay, Cuba.

It also strikes a compromise between dueling definitions by the government and the detainees over who can be labeled an enemy combatant.

Lawyers for six detainees, all Bosnians, said Monday's ruling limits the government's ability to hold suspects who were not captured on a battlefield. They called it a "favorable" opinion.

Read more: http://ap.google.com/article/ALeqM5gUxng-zkl2uhqdCATFQyY9_8QV3QD9430PPG1

[Xipe Totec]

1. But the real question is what is an "illegal enemy combatant"

Because, if they are not illegal combatants, then they are legal combatants subject to the Geneva Convention.

It is not legal to remove enemy combatants from their home soil.

[uppityperson]

2. I agree. This is a start, but more definitions need to be made.

[endarkenment]

3. The GC doesn't even have the concept.

We just made that shit up and then declared: not covered by the GC.

[Xipe Totec]

4. GC calls them POWs nt

[endarkenment]

26. Well that is the point.

There is no GC concept of illegal combatant. The whole point of the charade that the Bush Cabal has enacted is to avoid the obvious culpability for war crimes by inventing out of whole cloth new categories of captured persons and then proclaiming by fiat that the GC don't apply.

[Vattel]

7. you are sort of correct

but if I recall my international law, the concept is implicit in the convention's definition of who is entitled to POW status. Please correct me if I am wrong.

[Xipe Totec]

9. The Bush argument is that Illegal Enemy Combatants are not covered by GC

That's been their whole weassel argument.

But if they are ordinary enemy combatants, then they are POWs and there's no question about GC.

[Vattel]

11. their argument has some merit

in that GC does not extend POW status to all belligerents. The problem with their argument is two-fold (at least). GC requires decent treatment for any belligerent and article 3 protections clearly apply to the conflict in Afghanistan since it is a conflict that is not of an international character.

[Xipe Totec]

13. Article 3 deals with civil wars inside a GC country

But shortly after the invasion of Afghanistan, the United States argued that its conflict with al Qaeda in Afghanistan was not an international armed conflict, precisely to avoid article 4.

Since article 3 deals only with the treatment of non-combatants, the wounded and sick, Al-Qaeda prisioners would not be covered under article 3.


Hence the phony illegal enemy combatant category, not covered by article 3.

[Vattel]

14. you've got your facts wrong

Article 3 does apply to combatants and the Bush Administration argued that the conflict in Afghanistan was international as part of arguing that Article three protections didn't apply to Taliban fighters. They were slapped down on that point by the Hamden case, because SCOTUS ruled that the conflict between the US and Al Qaeda was not international.

[Xipe Totec]

15. Read it yourself

Article 3

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:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de 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.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

http://www.unhchr.ch/html/menu3/b/91.htm

[Vattel]

16. notice that it does apply

to persons "placed hors de combat" by among other things "detention." So it does apply to combatants. And to quote the majority in the Hamdan case, "The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “ ‘international in scope,’ ” does not qualify as a “ ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations."

[gratuitous]

5. Gee, niggling little point of order here . . .

How do we determine if someone "directly assisted in hostile acts against the United States or its allies" if they haven't been charged, there has been no trial, and no presentation of evidence? Is it just on someone's say-so? I thought this country launched a revolution against such star chamber proceedings, and fought tooth and nail against a totalitarian regime or two that imprisoned people without charge or trial.

Sounds like bullshit to me, and massive ass-covering for the discredited and failed Bush administration.

[Vattel]

8. well, in war one is allowed to have POWs

without a trial.

[Xipe Totec]

10. But not to torture them... nt

[Vattel]

12. of course

[gratuitous]

18. So, what country or countries have we declared war on?

Or are we at war with the entire world and everyone is fair game? Seems to me that if that is the case, then we're liable to attack at all times in all places, military or civilian, and there are no more rules of engagement, Geneva Conventions or UN authority. I find that situation less than satisfying.

[Vattel]

19. I'm not sure I see your point.

We're not at war with any nation in Afghanistan. We're at war with Al Qaeda and anti-government forces there. right?

[gratuitous]

20. And the declaration of that war . . . ?

Because if we're not in a declared war, it certainly looks like pretty lawless behavior on the part of the United States to be holding foreign nationals on an uncorroborated allegation that a person is an "enemy combatant" and not entitled to due process, a statement of charges, a trial, or a defense. If there's no declaration of war, there's no prisoners of war.

[Vattel]

21. War can exist even in the absence of a declaration of war.

If war exists, there can be POWS.

[gratuitous]

22. Please

You're just embarrassing yourself by now. Your point is ludicrous, unsupported by any fact, law, or extrapolation of any fact or law.

[Vattel]

23. Don't be silly.

The third geneva convention itself does not require both parties to a conflict to declare war in order for its provisions to apply to the conflict. Moreover, many legal theorists have recognized the possibility of an undeclared war. Hell, even Alexander Hamilton siad that Tripoli's declaration of war against the US entailed that the US didn't need to declare war against Tripoli.

Setting that aside, I actually think that Al Qaeda declared war against the US and that the AUMF constituted a conditional declaration of war against Al Qaeda and anyone else involved in the 911 attacks. But I guess I'm just embarassing myself.

[Warren Stupidity]

25. The 'war' has been over for years.

POWs are supposed to be repatriated, among other rights not even remotely observed by our government. Our government has simply avoided all GC rules and restrictions by creating the fiction of 'illegal combatant', a status never mentioned in the GC. It is a fiction. a convenience on which they hang their serious war crimes committed in our name.

[Winterblues]

6. to hold suspects who were not captured on a battlefield.

But to the Bush* Cabal the entire world is the battlefield...They need to be a lot more specific than this I'm afraid.

[bemildred]

17. "hostile acts against the United States or its allies"

I sure hope this doesn't mean all violent federal crimes make you an enemy combatant. And if they do not, I want to know how you tell the difference.

[wroberts189]

24. "unlawful enemy combatant" bush speak..means no more POW's

Did this phrase get used before Bush? This is BS bush speak for "we no longer want to respect international law"

Never heard it used in WW1 or 2. Or Korea or "nam".

According to Wikipedia it has historically been used to describe:

http://en.wikipedia.org/wiki/Unlawful_enemy_combatant

"An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict under the International Humanitarian Law (IHL) and may be detained or prosecuted under the domestic law of the detaining state for such action."

Sounds a lot like what patriots did in the American Revolution against England.

Note the phrase "domestic law" ... call them whatever you want but that term does not apply ..these guys in Cuba cannot even get Habeus Corpus rights.


I would say that these unlawful combatants are being held unlawfully because they are not getting subjected to common domestic law.