Recently, outgoing attorney general John Ashcroft gave a speech to the Federalist Society In his speech, Ashcroft insisted that judges who make rulings counter to the president's position are only hurting the war on terror.


-Source

and....



Questions for debate:

1.)How are judges "executing" the law and not "interpreting" it in any case in this war on terror?

2.)In what way does Ashcroft believe that courts should be "accountable to the people" and how should that be carried out?

3.)How is any fighter on any nation, regardless of guerrila or regular army, not covered by the geneva conventions?

How are judges "executing" the law and not "interpreting" it in any case in this war on terror?



Well this is tough to decifer.

http://writ.news.findlaw.com/dean/20010914.html



From GWB's standpoint this would also include the detention of detainee's.

http://www.cnn.com/2003/LAW/01/08/enemy.combatants/



In what way does Ashcroft believe that courts should be "accountable to the people" and how should that be carried out?

It doesnt seem like he is advocating that judge's should be "accountable to the people" he is simply pointing out that they are not in which is why they are not equipped to execute the law.

How is any fighter on any nation, regardless of guerrila or regular army, not covered by the geneva conventions?

They are only covered by the Geneva convention's if you believe the convention supercede's the US constitution.

Judges are demanding that the government stop detain American "persons of interest" and others without the basic rights of knowing what they are being charged with and access to legal representation.

Ashcroft doesn't want the courts "accountable to the people"--he wants the courts to fall into line with the plans of the Bush administration "for our own good" and "in spite of us" in some cases. Ashcroft views the American public as being well-intentioned but mistaken in our desire to extend the same rights to detainees that we would expect to have ourselves in situations where we were detained without our families knowing why or having a method to help us get legal representation.


With this one, I would have to defer to one of the military members of AD, like Jagwease, or Azure Citizen, Mustang or Mrs. Pigpen.

I don't know about "any" fighter. What if I were an Iraqi woman, and I picked up a frying pan and brained a soldier who was going to place my teenage son in custody? What if I did it here in America and it was a law enforcement officer? Well, I'd probably be shot in Iraq for it; hopefully here in the United States I would just be restrained, arrested and incarcerated. But the reality is that I could be shot for injuring a peace officer. Is the United States considered a war zone? (Edit: What if, as a woman of Iraqi background, I did nothing so overtly criminal as that, but I bought fertilizer for my tomato plants one day at Wal-Mart or the local Ace Hardware store?)

The Geneva Convention issue is a whole 'nuther ballgame. A few threads ago, I think the consensus pretty much was (among liberals, anyway ) that if the United States did not honor this document that it signed along with the other nations, we would expect that the repercussions against our own combatants in wartime could be horrendous. Alternatively, when the U.S. signs such a document, it is a matter of honor that we abide by it.

I dont see how that answer's the question. On what legal grounds are the judge(s) "demanding" this? The US constitution give's the President authority in a time of war to detain persons if they are considered a threat to national security into military custody. Surely not all judges are demanding this if you read the link I provided by CNN.

Here's a rundown of what happened, im talking legally.

Salim Ahmed Hamdan was charged as an enemy combatant to be put before a military tribunal.

Hamdan is a from Yemen and was a member of the terrorist group Islamic Jihad before he joined Al Qaeda.

1. Hamdan was not fighting for any country, the Taliban was not even recognized by the UN
2. Hamdan wore no uniform on the battlefield
3. Hamdan was a member of at least one terrorist group

U.S. District Court Judge James Robertson ruled the Bush administration had no right to declare him an enemy combatant. Robertson said that Hamdan should be classified as a POW and given Geneva Convention protections, Robertson also ruled that the Geneva Convention protections supersede any presidential order or designation by military tribunal in effect saying that all terrorist's are POW's.

Let's look at the legal definition of a POW.

http://www.free-definition.com/Prisoner-of...tion_Definition

In Jose Padilla's case, of course, although perhaps I should have said "ruling" instead of "demanding"--my bad.

And I never said ALL judges are doing anything. If the United States is still the United States, the judges are not going to act like a flock of sheep, but interpret the law in accordance with their own understanding of it. And most of these judges have only operated in civilian courts of law.

And I read your link. I still have the right to disagree with you.

Look, nobody wants a terrorist out and about and actively working toward the demise of our country--but nobody wants the inception of a police state, either, whether it is in the interest of hunting bad guys down or not. Ashcroft has been bringing this country closer to a police state than many of us are comfortable with.

I am thankful that Ashcroft is leaving the office of Attorney General.

Ahh I see we are thinking of two different cases. The original post was a comment directed at the ruling of U.S. District Court Judge James Robertson in relation to Salim Ahmed Hamdan.

I agree with you in the case of Jose Padilla. That's abuse of power if I ever did see it. GWB routed the protections for US citizens by the court order that a US citizen can legally be detained as an "enemy combatant".

In the case of Hamdan, he was shooting at our soldiers and commited terrorist act's in the past and legally is not defined as a POW. The judge overstepped his bounds and shredded the constitution.

Technically Vampiel we are engaged in a police action. While Congress did authorize force against Saddam Hussein, there has been no declaration of war as demanded by Article 1, Section 8 of the Constitution. While Article 2 section 2 does make the President, "Commander in Chief of the Army and Navy of the United States," I don't find any broad grant of authority allowing "enemy combatants" to be held under these circumstances.

Bush wants strict constructionist judges, but I doubt he applies this to war powers. Since WWII we've had a succession of undeclared wars--starting with Korea and including Vietnam and Iraq. The type thing Bush has done has never occurred in an undeclared war--not by Truman in Korea or Johnson or Nixon in Vietnam. Why does the Bush administration, including Ashcroft, have such difficulty following Constitutional procedure?

And technically we dont have to declare war in order for the power's to be in place.

http://writ.news.findlaw.com/dean/20010914.html



See if you can wrap your head around this - technically and legally the President can declare any person a threat to national security and be imprisoned indefinetely without charging the person.

That's what scary about the Padilla case, and it's completely legal.

It’s amazing Vampiel that you link us to an article by John Dean that’s dated three days after September 11. The Patriot Act had not been approved at that time nor had the issue of enemy combatants. Further, Dean acknowledges that there are those who share my opinion.

In Against All Enemies, Richard Clarke gives us a view updated by about three years of history:



Clarke, 2004, pages 256-257.

Perhaps you are mistaking the Patriot Act, Ashcroft and Rumsfeld for the Constitution.

I dont see where the Patriot Act come's into play which was approved by the senate 98-1.

Could you explain how the patriot act is relevant in these cases?

I agree with you in the Padilla case, but the constituion grants the president executive authority over foreign affairs. In the judge ruling (linked above) the POTUS can declare any US citizen an "enemy combatant" therefore they no longer have right's that are guarentee'd by the constitution. Due process is thrown out the window.

Fortunately the judge allowed Padilla to see a lawyer and reviewed the evidence of why he was determined an enemy.

http://archives.cnn.com/2002/LAW/12/04/pad...ling/index.html

I don't see how the margin by which the Patriot Act passed is relevant. Overwhelming support for a measure in the trying days after 9/11 doesn't make it a good law in all respects. That is why some favor Congressional Amendment to the Patriot Act.

Here's a link that supports my view of undeclared wars.

Stopping Undeclared Wars

Once again, could you please explain how the Patriot Act is relevant to these cases, or even to the case of declaring war.

You bring up the Patriot Act then talk about undeclared wars that has happened since WWII. Not a single war since then has been declared. Yes some people see it that it has to be declared but would it have made a difference in the case of Afghanistan and Iraq if that had been the largely interpreted view? I doubt Bush would not have been able to "officially declare war" though he did sort of.

GWB had approval from congress to use force, so I dont see what your beef with that is either (against GWB at least). But thats another topic.

Though officially declaring a war would limit the amount of time that POTUS could declare an "enemy combatant", so I dont necessarily disagree with you it's just that legally GWB is within his right and he has approval from congress no matter what way you look at it to use those powers.

1.)How are judges "executing" the law and not "interpreting" it in any case in this war on terror?



Original Source for this Thread

Going back to the original question, it seems to me that Ashcroft’s departing salvo is nothing more than attempt to justify his last four years in office. I don’t think judges are executing the law.



Actually, I brought up the matter of whether or not a war is declared first. It seems if Ashcroft is going to use the word “war” then we need some definition of the term. Further, I also pointed out, that there have been no declared wars since WWII. Please allowed me the opinion that wars should be declared. In my opinion, Congress has abdicated its power for the last 50 years in favor of executive action.

Jose Padilla’s name had already come up, hence my reference to the Patriot Act in the quote from Richard Clarke. To quote the same John Dean from one of your replies.



John Dean, Worse Than Watergate, p.112

So, again, it appears to me that Ashcroft is attempting to justify shifting of power into executive hands. If such rulings constitute “execution” of law, then maybe the administration and its supporters would like to circumvent (or maybe just disband) the courts entirely.

BTW: It's rather strange Vampiel. You claim to be libertarian, yet I'm the one arguing a libertarian position on this thread. LOL

No, I dont disagree with you, I only disagree with your distain for the Bush administration in this regard. War's have not been officially declared in over 50 years and I dont expect Bush to begin now. Furthermore Bush has been granted authority by congress which is more than I can say for the last President.

I'm having a hard time wrapping my brain around this thread. Ashcroft is arguing for increasing the vast powers of the presidency against long established checks and balances in the powers of the federal government put in place in large part by the Constitution.

Ashcroft said in this speech





Link


There have been extensive comments put forth in this thread that were interpretations of the executive authority per the COnstitution, but the references don't always connect clearly to the COnstitution.

Constitution as presented on line at this site

Article 1, Section 8 clause 11 gives this power to Congress

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The powers of the President

Article 2 Section 2





Article 3 Section 2



red sections no longer apply according to my text book

Supremacy Law

Article 6 Section 2



I put this is to show that treaties are included as the Supreme law of the land.
This I believe is one valid reason why something lake the Kyoto treaty would have such far reaching consequences for our environmental policies if we sign off on it.

Clearly the President has the leading role in foreign policy but there are checks on the power established in the Constitution.

There needs to be a rule of law in how we treat those we wage war against. This is a personal opinion, but I believe it is very important for our troops. Should we not expect our enemies to meet the standards of the Geneva Convention no matter what form they come in and if they do not they should be tracked down and tried for crimes.

I think Ashcroft has tried to create black holes where the law does not apply. If the will of the people is really at play here, then our treatment of people that our military takes into detention should have reasonable accountability to the people, and a day in court seems to be the only way to do that. I do not claim to have a complete or near complete understanding of the legal issues at hand here, but I don't think our present system is being run in the best interests of individual and human rights. We are losing a lot of credibility internationally if we want to stop other governments from dubious detentions of foreign nationals and political prisoners.

Not that I disagree with you but im only arguing to match the legality of such detentions.

Those detained as "enemy combatants" do have access to attorneys which was ruled in the case against Padilla.

http://archives.cnn.com/2002/LAW/12/04/pad...ling/index.html



Your point about treaties being the law of the land would supercede any executive order from the president in contrast to the Geneva convetion.

That is why the Bush administration had to classify them as "enemy combatants" because they point out that technically they do not fit the strict legal definition of a POW. This effectively circumvent's the Geneva convention because it only applies to POW's.

Again, look at the strict interpretation of a POW. Keep in mind the Taliban was not recognized legally under the UN.

http://www.free-definition.com/Prisoner-of...tion_Definition



Therefore anyone declared an "enemy combatant" through an executive order is not covered by the Geneva Convention.

That is why the judge stepped out of his authority in "executing" a law instead of rightly "interpreting" it.

Vampiel you seem to prove yourself wrong by your own source. The site you give defines a POW as


So let's see what Guerilla fighters are. From the source you presented Guerrilla warfare is:



Noticed the things I embolden, the first is to suggest that Al Queada falls into this category, the second thing I emboldened is to point out what I believe you are doing.

You're taking Guerrilla tactics they are using and calling it "Terrorist" actions. Was Al Queada a Terrorist when they used the same tactics against Russian soldiers? If so does that make us a State sponsor of terrorism?? If not how do you justify calling them terrorists now. Your logic is that since Al Queada has been labeled a terrorist organization, then any affiliation with them makes some one a terrorist, regardless if they have acted in that capacity.

It's like saying all crips are murderers. Some crips have committed murder, but they are not all murderers for this reason. Same can be said for Al Queada. Some are guilty of plotting and executing "terrorism", which makes them specifically "terrorists", but someone fighting foreign soldiers on foreign soil can not be considered in committing terrorism, they are fighting Guerrilla warfare.

Now any Judge that chooses to be impartial can define the terms which leads us to my next point. If the President is breaking U.S. Law in his procedures it BECOMES a JUDICIAL issue. A treaty we sign and is ratified is American Law. So it's not like Bush can do as he pleases abroad without checks and balances. He can not make laws, he can not break laws, he can not infracture upon treaties. He can make foreign policy, as long as he does NOT break American law.

Also on a side note, before U.S. became the United States there was a war on north American soil where men hid behind trees and shot at the British soldiers in what was termed as guerrilla warfare. Yet they were not recognized as a nation. Did this make them terrorist

I wasn't able to access the original link, so I'll just go with what I've read so far in this thread. First and foremost, detained unlawful combatants are not protected (as POWs) under the Geneva Conventions. The Geneva Conventions offer those protections only to combatants who are defined as "members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war". The Conventions include specific exceptions (Protocol I, Art. 37, and especially Section II, Art 44) for those who are not covered. Therefore, Guerilla fighters are covered only if they follow the laws of war and fit the description layed out in Article 44. This excludes those who use the methods of Al Queada.

The Geneva Conventions are certainly not unconstitutional. If they were, we would never have signed into them, as the USSC has ruled that we cannot sign into unconstitutional treaties. That's the purpose of the SOFA agreements, for example, which offer to maintain the protections to our military members when they are stationed overseas to areas that have different justice systems than at home. So...the loss of due process rights for the detainees is an American Constitutional issue, not an international treaty one. I believe that the judges ruled correctly....neither Americans nor foreigners on our soil should be devoid of their rights to due process (and Guantanamo bay, as a military installation, I believe is technically our soil…though I could be wrong).

I would disagree with this assessment, Droop. I have found a great article while researching for a paper I'm writing. Whether or not you agree with the conclusions, it's well worth the read.
From The Council on Foreign Relations



From the tactics and organization we have seen thus far in Iraq, I conclude that the 'insurgents' are indeed terrorists, but that's my opinion.
And since during our American Revolution, we had the framework of a 'national structure', and as outlined above, we clearly fell into the Guerrilla camp.

That's exactly my point and they also have to wear a uniform. Legally they are certianly not guerrilla's. The judge is incorrect of his assesment regarding this issue and that is why Ashcroft is dead on about this judge overstepping his authority. I dont agree with the ruling legally (Pallida).

Let's not get these cases confused, it seems you are bundling them up. The Hamdan case (Judge James Robertson), which is the judge Ashcroft is talking about, was wrong. Hamdan is a terrorist and doesnt hold a US citizenship. He was caught in Afghanistan. I think you are confusing this with the Pallida case.

What I dont understand is how this applies to US citizens in the Pallida case. Look at the explanation the judges gave.

http://www.cnn.com/2003/LAW/01/08/enemy.combatants/



I certianly wasnt saying that the Geneva Convention in unconstitutional, only that it would override any executive order from the president, the same as any other federal law.

I read the article and it did seem informative, but the theme I got from the article you summed up in your second to last sentence.



Even in the definition you present it starts off "Here again, it’s hard to draw a clear line," it goes on to use relative ambiguous statements to contrast the differences, like: "But unlike terrorists, guerrillas tend to organize in larger groups, seize and hold territory, and send openly armed units to attack opposing military forces."

Well there's a measurement we can sink our teeth in... LARGER 10, 20, 50, 100, 1000... take your pick. And then they "tend", to do these thing differently. Further in your quote, the last sentence in the second paragraph seems to nullify the point of the paragraph. it starts out stating the distinctions between guerrilla and terrorist actions then states "... although guerrillas often use such terrorist tactics early in a rebellion and then move on to other tactics" Well if guerrilla's are using these tactics doesn't that make the tactic Guerrilla tactics??

Last thing on the article you presented. Check out the final question.


We can't simply cut off rights by labeling someone a terrorist, when we don't have a clue on how to define it. That's exactly why I said your statement summed it up. It's all depends if you feel like calling them a terrorist. It's all OPINION. Your opinion is they are terrorist, some one else's opinion is that they are guerilla fighters. But one thing we should be against is one man's decision (because in the end it is the president's decision and he is no more than a man) to designate someone a terrorist, and thereby strip that person of due process, should not be allowed on a land that prides itself on it's rule of law.

Droop your arguement falls apart legally because they do not wear a uniform and where not fighting for a country. Additionally they do not follow the law's of warfare, therefore they are not covered under the Geneva Convention. It's not an opinion it's a fact. Legally they are not soldiers.

Mrs. Pigpen is right, this is a Constitutional issue in the case of Pallida, it has nothing to do with the geneva convention which is why the judge was incorrect in the case of Hadman.

Judges cannot simply make things up as they go along. What isnt clear is how the judges in the Pallida case came to the conclusion that the government can simply label a US citizen an "enemy combatant". That is the Constitutional issue and that can be fought in the courts.

Being that John Locke penned his treatises on government in England some 80 years before the existence of the United States Government, let alone the executive branch of it, I don't understand how someone could come to this conclusion.



There is nothing in the constitution giving the President the power to declare anyone an "enemy combatant" and strip them of their rights. And given that Locke wrote his treatises in response to the power wielded by Kings and their treatment of the populace, I don't think this type of power is what he was writing about.

-------------

How is any fighter on any nation, regardless of guerrila or regular army, not covered by the geneva conventions?

Until it can be proven in a tribunal that these specific combatants did not respect the laws and customs of war while engaging in this specific conflict or that a tribunal determines that these specific combatants do not fall into the categories outlined in Article 4.A. of the Conventions, they are protected by the Conventions. The Conventions clearly state that a tribunal makes that determination not the executive branch of the United States.



So, the President does not have the power to declare a group of people "enemy combatants"; if there is any doubt, a tribunal determines the status of prisoners. The Judge was correct in his interpretation of the law (in this case, The Geneva Conventions).

Vampiel,

You can't make the blanket statement that all members of Al Qaeda are not covered by the Conventions. The Conventions deal with individual persons, not groups, when it comes to POW status. In each case the determination of status, if it is in question (as it clearly seems to be), is to be made by a "competent tribunal"... not via executive order of the President of the United States. We signed the Geneva Conventions, we need to adhere to them.

I acknowledge that, but I do not see how in the case of Hadman he could be considered a POW under the Geneva Convention (legally). He is a known terrorist to have operated in more than one country. He did not wear a uniform.



Hadman is not covered under the Geneva Conventions so it doesnt even apply.

Either way you admit the judge was wrong in his ruling.



Hadman was lined up to go in front of a military tribunal when the judge made his ruling, so even if they determined that he should have "enemy combatant" status the judge allready overruled it.

The judge went way out of his authority even breaking the Geneva Convention law himself.

I believe they should all have POW status, but am only pointing out that in this case, legally, Ashcroft is right.

Judge's cant stomp on the law just because they have their own agenda.

You do not have to wear a uniform to be covered. And this instance all that matters are his actions in Afghanistan during that conflict.


This is you're opinion... it has yet to be proven that he isn't covered under the Conventions and the Bush Administration would like to keep it that way.



Wrong. The tribunal was set to try him as an enemy combatant not to determine his status. And the judge, in stating that he should be given POW status, was following the letter of the Geneva Conventions. Under Article 5 (quoted in my previous post), if there is any doubt about whether a person falls under any of the categories that define a POW, that person is protected under the Conventions until a competent tribunal makes that determination -- meaning he would have POW status until it was proven by tribunal that he didn't deserve it. Again, the tribunal he was in pre-trial for was not going to be about his status -- his status was determined by executive order of the President. That... not the judges decision... violates the Geneva Conventions. The fact is... there is nothing in the Constitution that states the President can determine the status of prisoners taken during war time. The United States signed a treaty that established the guidelines for making that determination-- under Article 6 of the Constitution, this treaty is a Supreme Law of the land. The Bush Administration is attempting to bypass those guidelines and is, therefore, violating that treaty and skirting the Constitution to forward the Administration's agenda.

According to the Geneva Convention you have to abide by the laws of war in order to be protected.

http://en.wikipedia.org/wiki/Laws_of_war





Unless you can provide evidence to counter what I have above, then no it is not my opinion it is a fact.



Are you sure that his ruling was to establish his POW status even contrary to a military tribunal?

I believe he stated it rather clearly.



des·ig·na·tion ( P ) Pronunciation Key (dzg-nshn)
n.
The act of designating; a marking or pointing out.
Nomination or appointment.
A distinguishing name or title.

Well, unless you can point to a specific document that states this specifically instead of the vague and often mildly inaccurate summaries and definitions found in an internet encyclopedia then, no... it is your opinion.



Well, considering the military tribunals in context of the ruling, he is right. And looking again, you are correct... these were "combatant status review" tribunals. But that only serves to point out that the Geneva Conventions do apply.

Basically, by virtue of that fact that "combatant status review" tribunals are being held in the first place, it is obvious that there is a question as to which prisoners should be given Prisoner of War status. The Geneva Conventions explicitly state that if there is any doubt as to the status of a prisoner, that prisoner is protected under the Geneva Conventions until a "competent" tribunal can make that determination. These tribunals, I have to agree with Robertson, are not "competent."

The Geneva Conventions apply to the conflicts in Afghanistan and Iraq. Any prisoners taken during these conflicts must be treated under the guidelines set down in that document -- this is international law and the law of the United States. The President of the United States does not, nor does a military tribunal, have the power to override that document. Article 5 of the 3rd Geneva Conventions explicitly states:



So until a competent tribunal is established to make the determination as to the status of the prisoners, the prisoners enjoy POW status. Again, this is the law. This is not a law that Robertson created, it is a law he used to make his ruling. Just because Ashcroft and the Bush Administration feel this hinders their agenda in the War on Terrorism, does not mean that the ruling is wrong. It just means the Bush Administration does not like when people disagree with it.

The wikpedia is a widely used source. Sorry if it is not "up to your standards".

http://writ.corporate.findlaw.com/commenta...04_dworkin.html



http://encyclopedia.thefreedictionary.com/laws%20of%20war


The law's of war clearly state that they must be in a distictive uniform.



And that is your opinion. Even IF Hadman was under protection the judge overstepped his authority in stating that these tribunals could not declare him otherwise.

Your case is falling apart, he was not in uniform as stated in the law's of war and subsequently not covered under the convention. Again, judge's should rightly interpret the law not make them as they go along.

If this where a federal grand jury you would lose.

I do agree with you in principle but legally you dont make a good case that would hold up in a court of law.

However, I would like to hear your thought's on the Padilla case because that is what really confuses me.

http://www.cnn.com/2003/LAW/01/08/enemy.combatants/

My point is that it is a bit ludicrous to say that the laws of war clearly state something and then use the Wilkepedia as your source for that "clear statement."

Have you considered the fact that there are categories of combatants described in the Geneva Conventions that do not have this requirement that are still protected under Article 4?

Here are the actual laws of war that are at work in this case. Perhaps a look at them rather than the Wilkepedia and the Free Dictionary will be helpful.

3rd Geneva Convention

I realize that it may be a bit more involved than the Wilkepedia and the Free Dictionary, but this is where you will see what the laws of war clearly state when it comes to the treatment of prisoners.



Let's break this down...

1. The United States is holding military "combatant status review" tribunals to determine whether prisoners are to be considered "enemy combatants" and, therefore, not protected by the Geneva Conventions. Why are they doing this? Because there is some question as to the status of these individuals... why else would they hold the tribunals? If you can provide some insight as to another reason why they would need to hold these tribunals if there was no doubt as to the status of these individuals, I'd like to hear it.

2. The Geneva Conventions apply to the conflict in Afghanistan... the conflict in which Mr. Hamdan was captured and arrested. The United States is a signatory of the Geneva Conventions. As such, the Geneva Conventions are considered the supreme law of the land in the United States, according to Article 6. Clause 2. of the US Constitution.

3. Mr. Hamdan was about to appear before one of the above mentioned "status review" tribunals... again, a tribunal whose goal is to determine his status.

4. Mr. Hamdan was denied any right to a defense because the US government believes that the Geneva Conventions do not apply to him... a fact that has yet to be determined by this "status review" tribunal.

5. Article 5 of the 3rd Geneva Convention states that if there is any doubt about the status of a prisoner (see 1., above), the individual has protection under the Convention until it has been determined by "competent" tribunal that this individual is not protected under the Convention. That is the law -- to do otherwise is illegal.

6. As the "combatant status review" tribunals denied Mr. Hamdan the right to a defense -- a right guaranteed him under Article 5 of the 3rd Geneva Convention and, therefore, in accordance with Article 105 of the Conventions -- it may be possible, as the tribunal is violating the Geneva Conventions, that this tribunal can be deemed not "competent" to make the determination of Mr. Hamdan's status.

If these tribunals determine that an individual is not an enemy combatant and release him, then this individual was held without protections of the Geneva Conventions until it was proven that he did, in fact, deserve those protections. That is illegal according to Article 5 of the Geneva Conventions.

So, I ask you... what law did Robertson make here? Seems to me he was interpreting the Geneva Conventions? How is that overstepping his bounds? According to the US Constitution, these Conventions are law in the US.

Vampiel, are you sure it is my argument falling apart?? Have you noticed that your reasoning goes in circles and always ends up back to "They don't wear uniforms!!"

I used the definition you quoted from one of your own sites. I will repeat and take notice of what I embolden.....please



You start off by saying they do not fall under the Geneva Convention, that is disputed with the fact they are fighting a guerrilla war, you state they are not following the rules of war, when asked why you state they do not wear uniforms. But Guerrilla's don't necessarily wear uniforms, so you state they are not guerrilla's though, when asked why you say because they do not follow the rules of war... what rule do they break? They do not wear uniforms!! .... but Guerrilla's don't necessarily wear uniforms and so on, and so on!! I think you want to win this argument through pure persistence

Here's what you started off saying...



Now it seems like your holding on to a thin thread of point two. O.K. Hamdan wore no uniform, he was not an enlisted soldier some army with uniforms, could he be seen as a Guerrilla??

I would like for you to read this article, in which the Geneva Convention state's they must abide by international law in order to be covered and they make quite a compelling case as to why Al-Qaida does not meet these laws therefore members of this group are not automatically granted POW status.

http://www.uwgb.edu/dutchs/PSEUDOSC/POW.HTM



It can be can argued that a competent military tribunal is who need's to determine their Al-Qaida membership, but I would also like to point out that he was only needed to be seen without "having a fixed distinctive sign recognizable at a distance" which automatically takes away his protections because he was not in accordance with international law.

I don't think so. Mr. Hamdan was denied a right to a defense because he was classified as a combatant. This is the justification that was used to deny him his due process rights (before the status-determining tribunal) as an American citizen. According to the Geneva Conventions, captured combatants may be detained without charges until the end of active hostilities...because obviously, a government involved in an armed conflict has an interest in ensuring that enemy soldiers are kept away from combat for the duration of the conflict. Though in this case, "end of active hostilities" can be as subjective as "competent" tribunal.

Again, I see this as a Constitutional issue. If there is anything covering the specific rights to legal defense council for captured combatants before their status-determining tribunals, I am unaware of it. It certainly cannot be found in Article 5, of the 3rd Geneva convention which you are referencing. The actual passing of sentences or carrying out of executions is forbidden without judicial guarantees, but not confinement during hostilities.

…Just to add about the uniform matter. They aren't always necessary, nor are emblems always necessary. The 1977 Protocols extended the definition of combatant to include fighters who carry arms openly during preparation for an attack and during the attack itself, (Protocol I, Art. 44, Sec. 3):

Yes, but when it comes to POW status, the Convention does not deal in groups, but in individuals. Whether an individual is granted POW status depends on the actions of that individual. For example, if an officer of the US Military (a group that most believe follows the laws of war) is in enemy territory out of uniform and violating the laws of war and captured, that individual does not automatically have protection under the Geneva Conventions. So, regardless of the actions of the group, status is given based on cases involving an individual. So, as I've posted before, Hamdan's status is determined, not by whether or not he was a member of Al Qaeda, but his actions in the conflict in Afghanistan -- the conflict in which he was arrested.



That is a direct quote from the Hague Conventions. The Geneva Conventions, written specifically to deal with humanitarian concerns like treatment of prisoners expands these definitions -- some of which do not require a "fixed distinctive sign recognizable at a distance".



The Geneva Conventions and Hague Conventions do not cover the attack on the United States, because the Geneva Conventions only apply to conflicts between States. This is why the Geneva Conventions do not apply in the West Bank and Gaza, because it is not a conflict between States.



The Italian Mafia in New York is a criminal organization... it has many known members. It is known that this group commits crimes. It is not, however, a crime to be known as a member of the mafia, it is the crimes that they commit that are illegal. But, we still, when a member of the mafia is arrested, consider them innocent until proven guilty -- until it is proven that this person is indeed a member of the mafia and they have indeed committed those crimes. That is law. The same applies to the Geneva Conventions as specified under Article 5. It states any doubt, not "reasonable" doubt.



Al Qaeda as a group is not bound to the Conventions defining the laws of war. They just aren't. It is against the law to engage in terrorist acts, but because these acts are not the acts of a State, but of a terrorist group, they do not fall under the laws of war dictated by the Hague and Geneva Conventions. So Hamdan's status as a prisoner of war can only be based on his actions in the conflict with Afghanistan, the conflict he was involved in when he was arrested.

You can go round and round saying that legally he doesn't deserve POW status, but that is your opinion. In my opinion, based on my knowledge of what the laws of war state and taking into consideration current events, I think he should have it. Legally, it is not for us to determine his status.

But, legally, the fact is that there is a question as to the status of these individuals. The United States acknowledges that there is a question, because they are holding tribunals to determine the status of these individuals. Under Article 5 of the Geneva Conventions, which do apply to Hamdan because he was captured during the conflict with the Sovereign State of Afghanistan, state that if there is any doubt, any question regarding status, the prisoner is automatically considered a POW until a "competent" tribunal determines his status. A "competent" tribunal is one that would act in accordance with the articles regarding the trials of prisoners of war -- this means he is allowed a defense. These tribunals are not "competent" because they are not adhering to the laws of war.

This is what Robertson's ruling states, and given what I've read, I agree with it. Your argument does not hold up.



Mrs. Pigpen,
I think there is some confusion... Hamdan is not an American citizen, he is from Yemen. Neither am I questioning the length of his detention or the determination as to when the hostilities ended, if they have.

It is only a Constitutional issue in the sense that the Geneva Conventions are considered law in the United States per Article 6, Clause 2 of the Constitution. Article 5 of the Convention states that he should be given POW status, if there any doubt as to his status -- as there is, because they are holding this "status-determining tribunal", until a "competent" tribunal determines his status. Meaning... As a POW (under Article 5), he is granted the right to a defense (under Article 105 of the Convention) until a "competent" tribunal can make a determination as to his status.

A tribunal that denies Mr. Hamdan's right to counsel can and should be declared not "competent" to determine his status, because such a tribunal is violating Article 105 of the Geneva Conventions.

The Hague does deal with groups.



Inserting the word most deal's with group's not individuals. If they are in Afghanistan fighting against the United State's they can automatically be determind to be Al-Qaida -- or Al-Qaida sympathyzers being commanded by Al-Qaida therefore are not atuomatically granted POW status.

I've read that he is an American citizen, captured overseas. Took me a while to find where I read this...it's here (PDF file).

Two different cases.

http://writ.news.findlaw.com/dorf/20020821.html



http://www.usatoday.com/news/world/2004-11...htm?POE=NEWISVA

Oh, geez. Thanks for the correction, Vampiel (and Entspeak), I've been confusing my cases this whole time.

This is not a quote from the Hague. Sorry. Last I heard, the U.S. Army Field Manual on Survival is not considered international law.

All that matters, legally, is the fact that there is a doubt as to the status of this prisoner. Article 5 of the Convention states that if there is going to be a determination of status, the prisoner is given POW status until the determination is made and the determination is made by a "competent" tribunal -- one that will abide by the Geneva Conventions regarding the treatment of prisoners. Article 105 of the Conventions gives a prisoner of war the right to a defense.

True, but FM 27-10 is not the Survival Manual, it is the US Army 'Laws of land Warfare' manual. And enitrely appropriate for inclusion in this debate.

The purpose of the manual ia as follows:
The purpose of this Manual is to provide authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral States. Although certain of the legal principles set forth herein have application to warfare at sea and in the air as well as to hostilities on land, this Manual otherwise concerns itself with the rules peculiar to naval and aerial warfare only to the extent that such rules have some direct bearing on the activities of land forces.

This Manual is an official publication of the United States Army. However, those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war. However, such provisions are of evidentiary value insofar as they bear upon questions of custom and practice.

I stand corrected -- so many Field Manuals, so little time.

The section you just quoted proves my point... thank you. While being "evidentiary", "those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war.". The tribunals are legally bound not to the Manual, but to the laws themselves... in this case, Article 5 and, therefore, Article 105 (among others) of the Geneva Conventions.

Now that I am looking at the right case.

I don't see how the Conventions were violated. Hamdan did receive legal representation prior to his trial.

Having legal representation is only part having a defense at trial. There are issues such as disclosure of evidence, among other things. These tribunal rules in this case seem to allow for the presentation of "secret" evidence against the defendant without the defendant present to refute it. Article 105 does not limit a POW just to counsel, but allows him the ability to defend himself at trial. This is one of the reasons why Robertson stated in his ruling that these tribunals are not legal. And currently, the military seems to be allowed to coerce Hamdan in order to get him to say something that could be used against him at his tribunal. This behavior violates the Geneva Conventions.

Robertson also states that the President does not have the power to determine the status of prisoners when it comes to the Geneva Conventions. He states, "The President is not a tribunal."