Always happy to entertain...
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Originally Posted by
JJackson
why are they illegal anything?
Dunno; their choice and I long ago stopped trying to figure motives in people...
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If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
Only if you had a particularly poor batch of US Troops find you; most exercise some discrimination and if they err, tend to err on giving your story the benefit of the doubt. That is to say far more bad guys talk their way out of a bad spot then are wrongly caught.
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If I declare Ken a non combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.
Well, you could, I guess but I don't know why you'd lock up a non combatant; we try to avoid that, mostly successfully and concentrate on locking up combatants -- the issue du jour being whether they are 'illegal' or legal combatants.
That involves the Geneva Convention and those provisions that state aside from combatants (pictured as military force against military force; out of date but there it is), other individuals, including civilians, who commit hostile acts and are captured do not have the protections of the GC. Rightly or wrongly, the US decided to label people in that category 'illegal combatants.' Gives the Lawyers something to do...
We don't disagree on much...
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Originally Posted by
Rex Brynen
The UN does actually, under some circumstances, produce laws...That's a quibble, however ;)
A valid one. However, the UN item acquires the force of law only as it is codified by the ratifying state -- and the US is notorious for not ratifying or placing many exceptions in its ratification process.
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More broadly, there are several reasons for playing by the rules of international humanitarian law:...
I agree with all those. As I said, we may or may not be legal; I'll leave that to the Lawyers, not my field -- but we sure weren't smart (and I minored in Stupidity...).
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I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.
Nor do I disagree with that -- with the caveat that excessive idealistically derived but legitimate humanitarian concerns sometimes have effects that are not what the originators envisioned. See Steyn, M. and Section 13.1 of the Canadian Human Rights Act. Comes under the heading, I believe, of 'be careful what you wish for, you may get it...'
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There, having established my credentials as a defender the indefensible (lawyers), I'll next defend the Air Force... :D
Masochist! ;)
Hmm. Obviously I've been wrong all these years...
As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.
Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.
I'm snowed, I think I'll go get a drink... :D
The Trial and Punishment of JJackson, Esq.
Quote:
Originally Posted by
JJackson
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
I’ll take a crack at this one. If grabbed as a suspected terrorist by US troops, I don’t know who decides you go to Gitmo. Or how it is decided. But, it seems possible, if whoever thinks you belong there has the power to make it happen. The accusation or suspicion or terrorism, itself, provides sufficient justification for you to be held there.
Once you get your orange jumpsuit, you’ll have plenty of time to ruminate. Martin Luther King, Henry David Thoreau, and Adolf Hitler all decided to write about their circumstances while behind bars. I don’t know if you’d be allowed that privilege, or not. I haven’t noticed any jailhouse manifestos from Gitmo in my local bookstore, yet.
Tacitus' opinions don't carry much weight, of course. Of more importance on this issue, let's hear what Senators Obama and McCain think about this.
http://www.cfr.org/publication/14751...008%2Ftrackers
Both of these gentlemen have several times said they plan to shut this thing down, Obama suggesting trying the accused in a U.S. criminal court or by a military court-martial. I think McCain has suggested just moving this thing to Fort Leavenworth, and using what is already in place there.
Since your case is unlikely to be resolved before Inauguration Day (January 20, 2009), there’s a fair chance you’ll have your day in court somewhere else.
I wouldn't take any false comfort from that, though. They probably wouldn't have grabbed you for nothing, and might could get you on a charge of spying for terrorists, if not being one, yourself. The last British spy that I remember us dealing with was Major John Andre. He was denied a soldier’s death by firing squad, and instead hung. And he wasn’t even Al Qaeda.:eek:
http://en.wikipedia.org/wiki/John_Andr%C3%A9
Orange is not my colour ...
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Originally Posted by
Tacitus
They probably wouldn't have grabbed you for nothing
This is the part of the process that bothers me.
I have never been in a situation like this but assume it is fairly chaotic. Some of the insurgents will be local, some from further afield and if the engagement is in a town or village will include a whole spectrum from completely uninvolved through sympathisers, non combatant supporters, lookouts, fighters and their commanders. I assume they all get rounded up and all claim innocence then what? How many were just in the wrong place at the wrong time and if they are not going to get a hearing then how can they escape the nightmare? This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
In the UK we had a whole spate of IRA miscarriages of justice releases and apologies for fabricated evidence against individuals who the police 'knew' were guilty but could not provide evidence. With the public baying for blood and their superiors for convictions, they just helped the cases along. This is very understandable given the circumstances at the time, but also very wrong.
As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.
Flatland's Response to Insurgency
1. Country Study.
We have some of the picture of Village X, and of some Ps moving toward higher-level CIF; but we need a bit of background for our fairy tale.
Village X is located in the independent nation of Flatland. That name from the 1884 math "sci-fi" book which describes the culture of a 2-dimensional world.
http://en.wikipedia.org/wiki/Flatland
Flatland's government is strongly "libertarian" (but still has a military). The insurgency is strongly "statist". Thus, they are 180 degrees out of phase on the "diamond test".
http://www.theadvocates.org/quiz.html
The insurgency has an ideological cause supported by many arguments. The incumbancy has a ideological counter-cause also supported by many arguments. The majority of Flatlanders are political sheep. For present purposes, there are no external "Powers" or "Parties" involved in the conflict.
Flatland, like many countries, has a well-developed civil and military jurisprudence: Uniform Code of Civil Justice (UCCJ) and Uniform Code of Military Justice (UCMJ). Flatland also is a signatory to the 1949 GCs, and has ratified them, subject to reservations as to some key provisions.
Flatland's Constitution derives all delegated powers from its people (non-delegated powers being reserved to them). It is the Supreme Law of the Land, which trumps inconsistent internal laws. It also trumps treaties and executive agreements which are inconsistent with either its substantive or interpretative principles (e.g., among the latter, "void for vagueness"). All of this drives I Law theorists nuts because I Law derives its "powers" from states, not from the people of the World.
2. Problems Dealing with the Insurgency
The over-riding concern of Flatland's libertarian government lies in the fact that the available tools to quash the insurgency are - well, frankly - authoritarian. So, the incumbancy must use "statist" methods to crush a "statist" ideology, so as to preserve a "libertarian" ideology ! Will the baby be tossed out with the dirty bath water ? The government's conclusion is: probably not; but we have to be damned careful.
Part of this problem is how to proceed with Ps in detention, adjudication and final disposition. The Flatland government is willing to trust its military to initiate the process to separate the goats (IPI, IMF, IAF, ILF), who may be detained (some could be released for tactical reasons); from the sheep (IS, NEU, CIS), who will be released.
That phase (above post) involves preservation of evidence and witnesses; as well as two administrative adjudications of probable factual status (e.g., IPI, IMF, IAF, ILF), with routing to appropriate detention centers based on each person's dossier. The question is what to do when they get there.
Flatland's government considered use of its UCCJ and UCMJ at that time point. Those codes are fine for their intended use (and provide more safeguards for the accused than exist in most other nations). However, they are designed to remedy the acts or omissions of individuals (civilian or military); so, the civil and military courts, both procedurally and substantively, are not well-designed to adjudicate what are, in essence, networked group military or paramilitary actions.
Moreover, Flatland's government had a greater, long-term concern: "taint" of its UCCJ and UCMJ jurisprudence (for its non-insurgent civilians and military) by decisions made in insurgency cases. Hard cases make bad law. In short, the emotional response to the insurgency could in the end destroy much that is essential to Flatlander jurisprudence and liberties.
The decision was made to institute a Uniform Code of Insurgency Justice (UCIJ), with a separate administrative adjudicative process. That, in general, presented no inherent constitutional problems since Flatland has many administrative agencies with administrative law judges (and its UCMJ is administrative, as well). The government's problem was how to design and implement the UCIJ.
3. Specific Problems under the UCIJ
1. The persons to be adjudicated are detained members of these factual classes, IPI, IMF, IAF and ILF. The majority view in the government was that in all of those classes could be found persons who took an "active part in the hostilities." That view was based on the insurgency's own doctrine of "4GW" and its networked nature, where the IPI and ILF were equally or more important to the end result than the IMF and IAF. The majority concluded that common Art. 3, GCs 1949 does not apply to make them "protected persons" (as well as questioning whether Art. 3 is "void for vagueness"). However, the majority was not adverse to incorporating provisions of Art. 3 into the UCIJ on an item by item basis.
2. The minority positions were along two tracks. One was to find "protected person" status under Art. 3 for all IPI, IMF, IAF and ILF persons, except those who had not "laid down their arms". One soldier asked: "So, this SOB takes two shots at me; tosses his shotgun to the ground; jumps down from the tree; and says, 'sorry, I'm now a protected person.'" Another view (a totally separate track from the Art. 3 track) was to treat the insurgency as a recognized belligerancy, with full PW/POW status granted to its "armed forces" (the IPI, IMF, IAF and ILF, most broadly construed).
3. Agreement was better as to the administrative court and phases of adjudication: (1) a preliminary hearing after the person reached the detention center before an administrative judge to present the substantive charges, determine "probable cause" to hold, and the person's legal status issues, if any; and (2) a trial on the charges before a larger panel of judges. Flatland's UCMJ was rifled for much of the UCIJ's procedures. But, the on-going insurgency required consideration of security clearances and intelligence issues, which were not fully resolved. Also, the final "military-civilian" composition of the trial courts remained open - a number of agencies wished to get into the act.
4. Agreement was generally reached on substantive law; that is, the possible charges and punishments that might be - by adopting a sliding scale of crimes and punishments (from major to minor). An unresolved debate was on the extent to use the death penalty ("we shoot insurgents, don't we ?), or whether to use it at all. A further debate (among death penalty proponents) was about the level where it could or should be imposed (by now, we have four levels of adjudications: on-site military, higher-level military, prelim hearing, trial). Thoughts of Breaker Morant lurked in some minds.
5. Some controversy existed as to interrogation of detainees (if to be allowed at all; if so, the extent allowed); the extent of "coercion" allowed; and the time lapses between adjudications (to allow interrogations), etc. A small, but very vocal, minority expressed a belief that "confession brings redemption" (even if torture be required), following the quasi-religious theory found in Roger Trinquier, Modern Warfare (Praeger 2006), pp.17-20.
Can you help the Flatlanders solve their problems ?
Boumediene-Munaf "Symposium"
A number of different views on Boumediene and Omar-Munaf (see below) are found at Opinio Juris:
http://www.opiniojuris.org/posts/chain_1213336401.shtml
That discussion seems likely to continue.
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Omar-Munaf is the case most directly applicable to OIF. Excellent opinion by Justice Roberts with no dissents ("cautionary" concurrence by Justices Souter, Ginsberg & Breyer):
http://www.scotusblog.com/wp/wp-cont...06/06-1666.pdf
Note that Justice Roberts, after finding jurisdiction to hear the habeas petition, felt that the circumstances required a prompt decision on the merits of the habeas petition (slip p.14, and following). Which is exacly what he did:
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(slip p.28)
Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.
For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Some links to 5 lawyers bios
re: Tom Odom's 1st link above
http://www.mcclatchydc.com/detainees/story/38886.html
The five White House, Pentagon and Justice Department lawyers named in the McClatchy article are David Addington, Alberto Gonzales, William J. Haynes, John Yoo and Timothy E. Flanigan.
The top two, David Addington, Alberto Gonzales, attended but did not finish at service acadamies. That struck me as a bit odd, especially Addington's reason, if Napolitano can be believed. William J. Haynes was an army CPT (1984-1989). No military service indicated for John Yoo and Timothy E. Flanigan; although Flanigan was born at Fort Belvoir.
Here are some links to them.
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David Addington
http://en.wikipedia.org/wiki/David_Addington
http://www.newyorker.com/archive/200...?currentPage=4
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After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silver’s restaurant. “The academy wasn’t academically challenging enough for him,” Napolitano said.
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Alberto Gonzales
http://en.wikipedia.org/wiki/Alberto_Gonzales
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... Gonzales enlisted in the United States Air Force in 1973, for a four year term of enlistment, serving two years at Fort Yukon, Alaska before released from active duty to be a cadet at the United States Air Force Academy. Prior to beginning his third year at the academy, which would have caused him to incur a further service obligation, he left the Academy and was allowed out of his enlistment contract ...
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William J. Haynes II
http://en.wikipedia.org/wiki/William_J._Haynes,_II
http://www.usdoj.gov/olp/haynesresume.htm
http://www.dod.mil/dodgc/gc/gcbio.html
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Born in Texas, Mr. Haynes earned his Juris Doctor degree from Harvard Law School, and his Bachelor of Arts degree from Davidson College, where he was elected to membership in Phi Beta Kappa and Omicron Delta Kappa. After law school, Mr. Haynes clerked for U.S. District Judge James B. McMillan in Charlotte, North Carolina. He also served four years on active duty as a Captain in the U.S. Army [1984-1989, from resume].
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John Yoo
http://en.wikipedia.org/wiki/John_Yoo
http://www.nytimes.com/2005/12/23/po...erland&emc=rss
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From the chambers of Judge Silberman, Mr. Yoo moved on to a clerkship with Justice Clarence Thomas on the Supreme Court, stopping briefly at Berkeley. Justice Thomas helped place him with Senator Orrin G. Hatch, Republican of Utah, as general counsel on the Senate Judiciary Committee.
Along the way, Mr. Yoo passed up a chance to work in the Washington office of the law firm Jones Day, where he caught the eye of a senior partner, Timothy E. Flanigan. After five years that Mr. Yoo spent at Berkeley, writing on legal aspects of foreign affairs, war powers and presidential authority, the two men met up again when Mr. Yoo joined the Bush campaign's legal team, where Mr. Flanigan was a key lieutenant.
Mr. Flanigan became the deputy White House counsel under Alberto R. Gonzales. Mr. Yoo ended up as a deputy in the Justice Department's Office of Legal Counsel, or the O.L.C., a small unit of lawyers that advises the executive branch on constitutional questions and on the legality of complex or disputed policy issues.
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Timothy E. Flanigan
http://en.wikipedia.org/wiki/Timothy_Flanigan
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Timothy Elliott Flanigan (b. May 16, 1953 in Fort Belvoir, Virginia) is an American lawyer and politician.