Thanks for the German legal article. Seriously, cuz it evidenced again to me that four years of university German 45 years ago are locked away in back-mind filing cabinets with very rusty drawers. Got some, but not enough to be coherent.

As to the more substantial question (without any claim to any expertise in German law), the Basic Law provisions, if that is all there is, may just write the Laws of War out of the German "Law Book". That seems unlikely, but then the Basic Law goes back to early post-WWII days when we (US and the three other major ETO allies), in our infinite wisdom, pushed for a de-militarized Germany, where the Laws of War would be quite irrelevant.

If you could summarize the arguments for an independent German military law and Laws of War, that would be appreciated. IIRC, Fuch once commented that, from his perspective, military law is not relevant.

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As to this,

from Igel
So I'm interested how this is handled in the USA. Because if I read the Bill of Rights, I think that some of it Rights would apply to Foreigners in Foreign Countries. For example the Sixth Amendment only speaks of "criminal prosecutions" not of "criminal prosecutions against US citizens or in the USA".
I have some answers - and my own pet scheme (at the end).

The answers are not simple. The general answer is that some Bill of Rights provisions might apply to non-US nationals whose rights are adjudicated before a US tribunal (note I did not say a US court), but others clearly do not because they would not apply to a US citizen tried before the same tribunal. The right to a jury trial is one that does not apply.

Let's take a current example: a Taliban member (let's say he had AK in hand to simplify matters) is taken prisoner by a US unit in Astan. Now, he might be simply handed over to the Astan authorities, ending the matter as far as the US is concerned. But, if he is detained in US custody, matters have to proceed as prescribed in the JCS Publication 3-63, Detainee Operations.

If the detainee disputes his status, his rights are as follows:

g. If a detainee’s status is in doubt in an international armed conflict, a tribunal will be conducted IAW [in accordance with] Article 5, GPW. The tribunal, convened by a commander exercising general courts-martial convening authority, will determine the status of an individual who commits a belligerent act and is captured by U.S. forces when there is doubt as to the individual’s status. The protections afforded EPWs under the GPW will apply to such individuals until their status is determined by the tribunal.
This tribunal must consist of three field grade officers (O-4 min.), a reporter who is a JA officer (O-3 min) and another officer to act as the detainee's "personal representative". This is not a new concept, but it seems to me to be not the highest and best use of five military officers.

A note as to what has been claimed by detainees. While much has been said about classifying (as opposed to treating) Taliban detainees as EPWs, that is not a claim that is being made by them. They are not asking for status as GC III EPWs, but as GC IV civilians. Two reasons for that: (1) the Federal courts (from SCOTUS down) have made it fairly clear that a Taliban combatant will be classified under Common Article 3 and not under GC III; and (2) GC IV civilian status is a ticket out, whereas GC III EPW and CA 3 status are not.

In a sense, this is end of story if the detainee is an alien and is held in foreign territory. However, the Gitmo detainees added two twists to the story. The first was the CSRT panels, which operated much the same as the detention procedure with the same end - classification of the detainee under the proper GC. In the series of SCOTUS Gitmo decisions (and the subsequent lower court decisions), the courts made it pretty clear that the CSRT process was satisfactory for battlefield classification, but would not hold up to basic due process requirements for permanent classification.

The second twist was the military commissions. Now, they as finally evolved are very similar in composition and procedures to the courts-martial process under the UCMJ, which meets constitutional requirements. The primary purpose of the MCA (Military Commissions Act) was to try war and terrorist crimes, and not to determine the detainee's classification. However, the military judges in the few cases tried held preliminary hearings to determine classifications (because they had doubt about the CSRT process).

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Here is a modest proposal which solely addresses the detainee classification process. It could become more important if Bagram is determined to be subject to habeas corpus - and also could have avoided the Gitmo habeas mess that we presently have before the DC District and Circuit courts.

This proposal provides for an independent magistrate (note I did not say an Article 3 Federal judge). Please note that habeas corpus does not apply where there is an alternative due process tribunal that adjudicates the issue (e.g., the 100s per day deteminations by magistrates that there is probable cause to detain the prisoner in our domestic criminal law cases).

1. Continue the Detention Operations process, if there is a doubt as to status or if the detainee claims other than Common Article 3 status, as an initial screening process. That would not require tying up 5 officers; and could be done by one or more adequately trained officers or SNCOs (the latter might well be the best choice - I'm thinking of you, Ken ). If the detainee does not like the result, then we go to Step 2.

2. The independent magistrate would be a lawyer, and in effect an administrative judge for the agency who appoints him. What agency ? I would say DoS because we are dealing with a tribunal in a foreign land. Since that magistrate would be doing nothing else but detainee cases, he or she would be up to speed as to the ruling case law. The DoD could be involved with a JA as "prosecutor" to present the probable cause to hold the detainee. The DoS could also have on hand a "public defender" to represent the detainee.

Is there precedent for this ? Yes, for better than a century, the US had consular courts (conducted by a diplomatic representative) which had jurisdiction up to and including the death penalty - without appeal to a higher court. Those were held to be constitutional. They were terminated during WWII since they were not being used that much and smacked of colonialism.

Just a thought - which would certainly be cheaper and more efficient than the present process.