Quote Originally Posted by marct View Post
There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it).
True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.
The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.
What's ridiculous; the US position or the GC failure to protect illegal combatants?
If, as the Bush administration has held, they are not "legal combatants", then what are they? ... This is one of the legal reasons for giving them trials.
True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy...
As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.
That is subject to debate due to the legal combatant distinction.
Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.
We didn't try to create an uncovered category; we applied a covered category far too broadly, came up with an abysmally stupid plan to hold and interrogate and then developed a really dumb legal 'process' to attempt to cover the stupidity. We get max marks for stupid, no question -- but I disagree we've been illegal (other than in a very few specific individual cases -- and those were probable no matter what had been done ).