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Absolutely not. I think we've quite clearly seen what happens when the politicians try to run the battlefield. I don't want a soldier standing out there going, 'gee, am I really allowed to shoot?' getting wasted because he was in doubt.
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Veni, vidi, vici--this goes out to all our NFC West chums
Thank you for breaking the circle of suck, Bidwill--Stout, December 7 2008.
Should Congress Pass Legislation to define an "Ememy Combatant"
Absolutely.
I don't want a soldier standing out there going, 'gee, I had to shoot to kill a suicide bomber to save lives' getting tried for war crimes under the geneva convention.
I'm talking about post battlefield, obviously I don't want burdens put on soldiers either, why do you think I would ?
I'm talking about once you have some folks. What are they and how do we treat them. Thgis is the essence of the problem facing us. We have no legislation to cover it.
I think we need a definition of an EC, just like Israel has, hos no impact on battlefiled operations, just legal ones
I'm talking about post battlefield, obviously I don't want burdens put on soldiers either, why do you think I would ?
I'm talking about once you have some folks. What are they and how do we treat them. Thgis is the essence of the problem facing us. We have no legislation to cover it.
I think we need a definition of an EC, just like Israel has, hos no impact on battlefiled operations, just legal ones
Oh, my bad. Yes, we definitely need a definition, and Congress is a good entity to take care of it. Why not create a committee for it?
__________________
Veni, vidi, vici--this goes out to all our NFC West chums
Thank you for breaking the circle of suck, Bidwill--Stout, December 7 2008.
I'm talking about post battlefield, obviously I don't want burdens put on soldiers either, why do you think I would ?
I'm talking about once you have some folks. What are they and how do we treat them. Thgis is the essence of the problem facing us. We have no legislation to cover it.
I think we need a definition of an EC, just like Israel has, hos no impact on battlefiled operations, just legal ones
Ah, that wasn't clear when you originally posed the question. I'm fine with the idea, as long as whatever processes they come up with offer less than what the Geneva Convention offers to captured soldiers. Terrorists should never be considered on an equal plane as soldiers.
As I said, first lets get a legislative framework to deal with this.
I didn't put constraints on what that would look like.
Doing just that much would reduce my suspicion factor a lot. I expect a President to lead and be decisive in an emergency, such as after 9/11, immediatly after.
Once the immediate threat is past, then it is congress that should make sure the President has the legislation required to deal with the issues.
I may hate the Patriot act. First the name really should have been 'The Rip Up Constitutional Protections Act' but at least it is something.
In this case we need a solid, defensible defintion of what defines an EC and how we should deal with them.
In this case we need a solid, defensible defintion of what defines an EC and how we should deal with them.
I think you mean coming up with a definition of enemy combatants, minus the descriptions already present in the Geneva Convention. I don't mean to harp on this, but there's no point in re-inventing the wheel. We already know what constitutes an enemy soldier, or other fighters deserving of POW status, and we know how those POWs are to be treated.
That only leaves room for defining what a terrorist is, and determining how many flavors of terrorist there might be.
“what terrorists want, is to provoke the state into (over) reacting in ways that violate its own principles, thereby undermining the state’s legitimacy and creating sympathy for those allied with the terrorists.”
There are existing definitions and conventions. Israel, UK, Malasia, Singapore among others have explicit if broad definitions and also rules of conduct/procedure. In Israel and the UK, the respective Supreme Courts have upheld some aspects of the policies and denied or modified others. So for ex. both defined 'unacceptable' standard interrogation practices of 'unlawful combatants' and steps necessary to get legal permission to be more extreme; Israel's Court refused to allow 'bargaining chip' detention (i.e., no hostages per se - they must be held for legally- or militarily-based reasons, not for political reasons alone).
Countries such as Egypt and Saudi Arabia do as the US has done, and hold persons indefinitely with no definitions, no clear legal protections, and no structured means of judicial review.
From various legal, gov't, NGO, and media sources:
Quote:
By most definitions, an illegal combatant is a civilian fighter who pursues military objectives outside the laws of war.
The term unlawful combatant has been used for the past century in legal literature, military manuals and case law. The Bush administration seems to have appropriated the concept of "unlawful combatants" from a 1942 United States Supreme Court decision in the case ex parte Quirin, through which it was introduced into US domestic law. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states:
"The law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.
The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions (accepted into US law in 1949), has been disputed. A report by the American Bar Association commenting on this case, states:
"The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. ...Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all."
Should there be doubt about whether persons have fulfilled the conditions that confer prisoner of war status, Article 5 of the GCIII states that their status may be determined by a "competent tribunal" and until such time they are to be treated as prisoners of war. After such "competent tribunals" have determined their status, the "Detaining Power" may choose to accord detained unlawful combatants the rights of prisoners of war as described in the Third Geneva Convention, but is not required to do so.
Unlawful combatants do retain rights under the Fourth Geneva Convention so that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".
Under Article 47 of Protocol I ( Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war." (What about a martyr?)
Further, it can be argued that the Geneva Conventions were never meant to encompass all types of warfare (e.g, piracy on the high seas; see UN Conventions on the Law of the Sea 1958 and 1982), as its general purpose was to protect innocent civilians in areas of conflict (international and non-international in scope), and set reasonable rules of conflict amongst warring, international nation-states. In essence, conflict such as (terrorism), untraditional in character and indiscriminate in scope, should not automatically be afforded traditional protections; a seemingly sound position.
Israel’s "Imprisonment of Illegal Combatants Law" makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof. Against a backdrop of spiraling violence, on March 4, 2002 the Israeli Knesset passed the law.
The law allows the Chief of Staff of the Israeli Defense Force (note: not cabinet-level Minister of Defense) to detain anyone if there is a basis to assume that he or she "takes part in hostile activity against Israel, directly or indirectly" or "belongs to a force engaged in hostile activity against the State of Israel." All detainees held under the law are automatically assumed to be a security threat and can be held without charge or trial (subject to periodic judicial review) as long as hostilities against Israel continue and they are deemed a serious and immediate threat if released. (This law is used against Israeli right-wing terrorists as well as Palestinians.)
(The Israeli Supreme Court reviewed torture of terrorists in an earlier) decision, acknowledging the “ticking time-bomb” scenario may exist under certain circumstances and describing how a defense of “necessity” may be available to an investigator against criminal liability. Even still, the Court did not recognize the “necessity” defense as an authoritative basis for the State to act, absent legislative or statutory authority. Rather, the Court accepted that at this moment in time, even though “democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.”
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary detention, and requires that any deprivation of liberty be based on grounds and be regulated by procedures established by law. In narrow circumstances, if there is a public emergency threatening the life of a nation, a government may derogate from its obligation not to engage in arbitrary detention. (The United States, which is bound by the ICCPR, has not claimed that such circumstances exist.)
A quote from the former Israeli Prime Minister Golda Meir sums up rather symbolically the essence of this moral and academic criticism, “We can forgive the Arabs for killing our sons, but not for making our sons killers.”
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oderint dum metuant (Latin for 'let them hate, so long as they fear').
Well, in truth I'm actually not a total hawk, but I'm not a dove either -- I'm more like an angry pigeon flying over the political arena after a really big meal. -Abba Gav
Last edited by AZZenny; July 2nd, 2006 at 02:49 PM.
We already know what constitutes an enemy soldier, or other fighters deserving of POW status, and we know how those POWs are to be treated.
Yes we do and that as you keep pointing out doesn't cover AQ terrorists. I know this. Don't need to tell me again.
Quote:
Originally Posted by BlueTalon
That only leaves room for defining what a terrorist is, and determining how many flavors of terrorist there might be.
This is exactly what I mean. GW came up with his own definition on what they are and how we should treat them. The SCOUS just said he was out of line. According to the SCOUS we don't have a legal framework for them.
Apparently we don't have a definition of what there are or how to try them or even what rights they have.
We are a country of laws and congress is supposed to enact them. The President doesn't make law by himself although in times of emergency he does [and should have] significant discresion. We are no longer in an emergency and GW should go to congress to get the legislation he needs enacted.
The President doesn't make law by himself although in times of emergency he does [and should have] significant discresion. We are no longer in an emergency and GW should go to congress to get the legislation he needs enacted.
I did suggest that any legislation also need to be defensable in terms of international law.
Do you mean international law or international opinion?
According to international law, we would be justified in establishing a structure for military tribunals, followed by summary execution of terrorists.
According to international opinion, we might be in trouble if we don't provide terrorists with taxpayer funded lawyers and unlimited appeals, along with taxpayer funded libraries and internet access.
In the Protocol Additional to the Geneva Conventions (GC) of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 it is stated:
Art 47. Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
Other than (c), and in particular the term 'material' compensation, it would seem to me that a great many mujahadin or religious jihadists would fit a broad definition as mercs.
If you were to cost out the value of sexual encounters with 72 virgins, for ex., I'm sure that has substantial tangible worth, so it's like barter, in a way, therefore material gain. (Even if it's in heaven, I assume Islamic heaven is corporeal, or what would be the point of 72 virgins?)
It would be interesting to try to define religiously-motivated unlawful combatants as mercs at the US or UN level.
Or create a new category outside the current 'combatant' definitions, involving also the reliance on religious rules of war as opposed to international rules of war.
Bet all kinds of people would come out of the woodwork on that one.
(Did you know the 72 virgins dogma was first promoted during the Iran-Iraq war when one of them (I think Iran) sent busloads of untrained High School boys pulled straight out of their school classes to walk across minefields to 'identify' clear paths for the soldiers? Sick bastids.)
__________________
oderint dum metuant (Latin for 'let them hate, so long as they fear').
Well, in truth I'm actually not a total hawk, but I'm not a dove either -- I'm more like an angry pigeon flying over the political arena after a really big meal. -Abba Gav
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