COURTS VS. THE TERROR WAR

New York Post ^ | 12/19/03 | JOHN PODHORETZ

[kattracks]

December 19, 2003 -- A NEW York-based appeals court ruled yesterday that the Bush administration did not have the right to detain U.S. citizen Jose Padilla as an "enemy combatant" for his association with al Qaeda.

The ruling is an undeniable black eye for the administration, which may well have overreached in its handling of this very peculiar case.

[FormerACLUmember]

Traitors among us. The enemies of our nation.

[Byron_the_Aussie]

..a few hours later, a California-based appeals court ruled that the entire system whereby al Qaeda "enemy combatants" have been detained at Guantanamo Bay is unconstitutional...

That's just for starters. It's also a complete breach of the Geneva Convention, which states that combatants captured in an international armed conflict must be treated as prisoners of war, unless and until a 'competent tribunal' determines that a specific prisoner is not entitled to that status. But the worst aspect of Gitmo, the one we'll most regret in years to come, is the way our side has tossed away the high moral ground, for expediency.

[Byron_the_Aussie]

...traitors among us...

Very likely. So why not charge and try them?

[caspera]

That is so not true. The Geneva Convention applies only to

A) Uniformed soldiers in
B) A Regular Army
C) Who are formally ranked
D) In service to a state

The GITMO detainees thus are not soldiers. They are terrorists. The convention does not cover them.

Rather the opposite of what you say is true. The Geneva Convention is supposed to provide motivation for soldiers to follow some rules with the promise of better treatment if they are captured. If the captured combatants are afforded the same treatment regardless of whether they followed those rules, this incentive is removed.

Giving Geneva Convention treatment to the terrorists at GITMO would encourage flouting of the Convention elsewhere. If Santa gives you the same stuff if you're naughty or nice, you might as well be naughy.

[Broadside Joe]

It also states that they are to be in uniform and have insignia indicating rank. If they do not, under the Geneva Convention, they can be executed as spies. In other words, they are not entitled to POW status.

[John Valentine]

Mr.Byron, even discounting your parentage, you still have no excuse for your total misunderstanding of the Geneva Conventions.

So here it is: Please listen and learn. The Geneva Conventions only apply as between signatories. They are NOT extended to those not obliged to honor their provisions.

The Geneva Conventions are not some sort of Universal Declaration of Human Prisoners Rights.

That's for starters, sir.

Then, even as to parties to the convention, protections are afforded only to legal combatants. That is, the combatants must be members of a legally constituted military formation, with clothing and other means of identification that will clearly distinguish the combatants from civilians.

They must not take refuge among civilian populations.

The Taliban and their AlQaida cohorts fail all these tests. They were not parties to the Geneva Convention and have no right to claim its protections. They certainly made no pretense of affording those protections to us.

As well, they were not legally constituted military formations, and did not distinguish themselves from the civilian populations they operated from within.

These people have no claim whatsoever to any protection under this treaty and its provisions. Moreover, to grant the benefits of this treaty to non-signatory non-observers degrades the potential of the treaty to afford decent treatment of legitimate prisoners among the signatories.

Basically these prisoners could have been summarily executed upon apprehension. They have not miraculously acquired protected status just because thier captors extended grace.

[StonyBurk]

Seems on the part of Padilla--a reasonable man would see
that he ceded his rights as an American citizen when he
determined to act as an enemy combatant (muslim jihadi/shahadi)And as demonstrated by the illegal deployment of US combat troops to Macedonia (IFOR)by
that "unusually good Liar"(Clinton) who got COngressional approval after the fact. And as the President has a duty to
protect the American people from enemy combatants. . . ?
As for the detainees at Gitmo--I think they ought have
qualified Military/Jewish legal advisors.Properly cleared.

[sr4402]

The ruling is an undeniable black eye for the administration, which may well have overreached in its handling of this very peculiar case.

As the Grinch would say "Wrong-o...", the "black eye" the court is trying to give is to the Presidency of the United States. It is a power grab, plain and simple. The President is charged with protecting our nation as our Commander in Chief and they are clearly trying to pry this away from him during a time of war. Big Wrong-o.

Please pray that the U.S. Supreme Court will uphold the Presidencies power to protect our nation. It is time to Impeach these wacko justices and I don't think the Democrats have the balls to do it.

[TheFrog]

Lets start with a the fact that both the United States and Afghanistan are signatories to the Geneva Conventions

While you are correct in your assertion that "The convention does not cover them" (As POWs,Unless they were captured "under arms", then convention III does apply) you are incorrect as to whom the convention does cover, why they are not covered, and what must be done with them. Convention III of the 1949 convention affords protection to:
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.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
ARTICLE 5
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
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.

Now lets look at Convention IV, Part 1, Art. 5
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Note this only covers the 1949 convention, the individuals covered started increasing in 1950 with 75 U.N.T.S. 135, 287 and was last modified in 1977(The United States has not ratified the 1977 convention.)

[John Valentine]

Lets start with a the fact that both the United States and Afghanistan are signatories to the Geneva Conventions I think that you hwve to end it right there, not start it, for although Afghanistan was once a signatory to the Convention, I thnnk it is the case that they withdrew under the Taliban.

[TheFrog]

If you can point to a source for this comment I would like to see it. Having rechecked the United Nations. The Taliban did infact withdraw from a few Multilateral Treaties but this does not appear to be one of them.