A Cogent Discussion of Enemy Combatants Rights

[Annie]

By a law professor as opposed to a journalist. Hey, even I can understand his points:

http://kennethandersonlawofwar.blogspot.com/2005/01/wapo-editorial-today-gets-geneva.html

Opening salvos:

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"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." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.​

 

[sagegirl]

By a law professor as opposed to a journalist. Hey, even I can understand his points:

http://kennethandersonlawofwar.blogspot.com/2005/01/wapo-editorial-today-gets-geneva.html

Opening salvos:

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"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." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.​

My problem with all of this is why did administration officials need an explanation from justice regarding this..... the intent of the law seems so obvious. Could have been they were looking for that ever elusive (and in this case seemingly well advised) loophole.....

 

[Annie]

and you have lawyers on retainer for what, I mean if you are a business or university, etc? To advise.

 

[manu1959]

he quotes an article that was not ratified by the US, therefore no legal responibility to abide by it exists...which is what USA legal said....furtther those that do not abide by the convention, clear chain of command, a country, a uniform not civis (remember spys being shot in WWII), affording geneva convention to those they capture (remeber beheadings)

as for torture....those who tortured (i personally do not consider what happedned torture though) at abugrab arse are being punished...which is more than i can say for the other side...

 

[manu1959]

My problem with all of this is why did administration officials need an explanation from justice regarding this..... the intent of the law seems so obvious. Could have been they were looking for that ever elusive (and in this case seemingly well advised) loophole.....

question...what would you have done?

 

[sagegirl]

question...what would you have done?

I think I would have assumed that the geneva conventions applied and taken the higher road and absolutely enforced them. It is just to easy to say if someone else doesnt play by the rules why should they apply to me....not a legitimate arguement under most circumstances. It is a reality that the opposition might fight dirty that should have been factored into the stategy of waging this war. If it was not considered, shame and blame on those who disregarded it. If you have to give up your priciples to win a victory you have not won.
I think that prisoner detention and abuse weakened support for our effort both here at home and from other countries as well. Anyone who supports it should then accept the atrocities committed by the other side. So with this in mind I think the whole question of whether the geneva conventions may or may not apply is absurd. I dont need a team of lawyers to tell me what is right or moral...

 

[freeandfun1]

I think I would have assumed that the geneva conventions applied and taken the higher road and absolutely enforced them. It is just to easy to say if someone else doesnt play by the rules why should they apply to me....not a legitimate arguement under most circumstances. It is a reality that the opposition might fight dirty that should have been factored into the stategy of waging this war. If it was not considered, shame and blame on those who disregarded it. If you have to give up your priciples to win a victory you have not won.
I think that prisoner detention and abuse weakened support for our effort both here at home and from other countries as well. Anyone who supports it should then accept the atrocities committed by the other side. So with this in mind I think the whole question of whether the geneva conventions may or may not apply is absurd. I dont need a team of lawyers to tell me what is right or moral...

Careful what you ask for.... Maybe Bush will just start making a bunch of "assumptions". Is that really what you want?

 

[Merlin1047]

So with this in mind I think the whole question of whether the geneva conventions may or may not apply is absurd. I dont need a team of lawyers to tell me what is right or moral...

Here's my version of what is absurd.

1. It is absurd to be squeamish about the mistreatment of terrorist prisoners. (note - I said "mistreatment" - not "torture")

2. It is absurd to expect our soldiers to conduct themselves as if they were at a garden party.

3. It is absurd for libs like yourself to demand spotless conduct from the people who are risking their lives for your safety.

4. It is absurd that libs condemn a little humiliation of captured enemy while at the same time doing their level best to purge Sep 11, 2001 from the national consciousness.

5. It is absurd that libs hate and deride our own government while attempting to minimize the atrocities committed by Saddam.

6. It is absurd that libs remember any minor infraction committed by our troops, yet they have an extremely short retention span when it comes to beheadings, mutilation of bodies, or killing of innocent Iraqis by our enemy.

7. It is absurd that soldiers are dying to protect the very people who revile them and treat them with contempt. (both here and in Iraq)

8. It is absurd that libs can apply lofty expectations of our government and our military while turning a blind eye to the abuses heaped upon our troops by terrorists.

9. It is absurd that libs bravely spout their rhetoric but only so long as they can cower behind soldiers who defend that right for them.

10. It is disgusting that there are people who have never served their country in any capacity, yet somehow they believe that they are qualified to sit in judgement of those who struggle to gain victory on their behalf.

And finally - it is absurd that those who expect our soldiers to fight a gentlemanly war - no matter what the cost, no matter how it may handicap our efforts - to say, after they finish with their self-righteous criticism, "I support our troops".

 

[Annie]

What Merlin said.

 

[speederdoc]

Here's my version of what is absurd...

That is one of the best posts I have read on any forum.

The Geneva Convention clearly does NOT apply to terrorists anyway, and even if it did, certain features of it need to be changed, such as the use of tobacco. We don't allow prisoners in Texas prisons to smoke anymore, why should we allow POWs that luxury? And we are supposed to PAY them and give them a commisary to buy stuff? I think that the whole thing needs to be revised.

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

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.

Blending in with the locals and pulling out a gun, pretending to be wounded or driving up in a car and setting off a suicide bomb, and shooting at our troops from a mosque don't seem to apply.