New at Reason

Julian Sanchez | September 16, 2005

Now that the confirmation hearings have given John Roberts a sense of what it's like to be detained indefinitely under threat of torture, Jacob Sullum wonders whether he'll approve of the practice for putative "enemy combatants."

Comments

|9.16.05 @ 11:44AM|#

�It is doubtful that the Pentagon's jury-rigged military commissions, which lack direct judicial review and other important safeguards, satisfy this standard�



Really? This standard under the Geneva Conventions is not the same under the U.S. Constitution. Further, I don�t see the phrase judicial review anywhere in the Geneva Conventions. In addition, the Geneva Conventions explicitly endorses military tribunals in Article 5 tribunals. An Article 5 tribunal is a hearing before a panel of officers to determine if a party is entitled to EPW status. The Geneva Conventions concern the protection of civilians and other parties such as EPWs who are victimized during the war. The conventions do not concern themselves with domestic judicial procedure. Under the conventions, as combatants, Hamdi and Padilla are entitled to humane treatment and an Article 5 tribunal to determine their status, which unquestionably will not be EPW status since they were not uniformed and not following the laws of war when captured. After they are determined not to be EPWs, the United States is free to treat them as criminals and keep them as long as they like under the Convention and only owe them humane treatment. There may be legitimate reasons under U.S. domestic law to release or try Hamadi and Padilla like Congress�s failure to suspend Habeas. Those are domestic reasons however they are not related to the Conventions. As unlawful combatants Hamadi and Padilla are not entitled to jack under the Conventions even though they are covered by them. I wish people would stop pointing to the Conventions when what they are really talking about is the domestic law issue of whether and what rights these guys have in U.S. Courts.

Shannon Love|9.16.05 @ 12:14PM|#

'what it's like to be detained indefinitely under threat of torture"

Well, it beats being dead. The Geneva Convention allows for the summary execution of captured combatants that violate the convention itself. The GC is a very no nonsense document. People who do not clearly follow the convention itself are not protected by it. Period.

Most people have never studied the GC, nor understand anything about the pragmatic reasoning behind it. They just shake it like a talisman whenever they are upset about the behavior of certain selected warring parties.

The worse thing about such ignorance is that it is effectively destroying the GC as any kind of workable law (for want of a better word). By routinely holding only one party accountable for following the convention regardless of what the other side does, such people destroy the idea of reciprocity on which the convention is based.

Jacob Sullivan needs to do some reading.

|9.16.05 @ 1:55PM|#

I couldn't have said it better myself Shannon.

|9.16.05 @ 2:08PM|#

I'm willing to concede your points on the guys at Gitmo, at least for the sake of argument: Not on US soil, not US citizens. OK, fine.

What about Padilla--US citizen on US soil?

Giving a US citizen captured on US soil a speedy and public trial before a jury of his peers, with an opportunity to examine evidence, cross-examine witnesses, and call his own witnesses, seems like a reasonable notion to me.

I think James Madison would concur.

|9.16.05 @ 2:15PM|#

Wait, I already know what the objection will be:

"Padilla's actions aren't ordinary crimes and so he isn't subject to the ordinary procedures of Article III of the US Constitution and the Bill of Rights."

OK, let's say for the sake of argument that there is a category of offenders who aren't subject to those requirements. How do we know that Padilla is in that category?

Well, the obvious reply is that the government said so.

OK, fine. How do we know they're not mistaken? The best way to be sure is to examine some evidence and give him a chance to contest it. And if his defense doesn't stand up, then he can be thrown into whatever hole his category of offender is destined for.

How will we do that? Well, it might introduce a dangerous conflict of interest if the evidence is examined by the same branch of government that's accusing him. And Congress probably isn't suited. So we might need a third branch of government.

I would like to ask James Madison's opinion on this, but he's dead. Perhaps he left behind some sort of official document with guidelines for this sort of thing...

|9.16.05 @ 5:05PM|#

Wait, I already know what the objection will be:

"Padilla's actions aren't ordinary crimes and so he isn't subject to the ordinary procedures of Article III of the US Constitution and the Bill of Rights."

You do a good job of explaining the problems if you accept such an argument, but I'm just not willing to. US citizen, US soil, not captured on a battlefield.

In all seriousness, the guy should be charged or released - now.

|9.16.05 @ 6:21PM|#

Eric-

I wasn't really accepting that premise. I was just saying that even if you do accept the premise, there should be some method for avoiding mistakes. And one good method for avoiding mistakes would be due process and jury trials.

Really, the Padilla case is, IMHO, the most important issue before our courts right now. If Padilla doesn't get a trial, then I truly fear for the future.

|9.16.05 @ 9:13PM|#

Thoreau,

You make good points about domestic law. My only point is that whatever protections Padilla has comes from domestic law, not the Conventions and I wish people would stop confusing the two.

|9.16.05 @ 9:31PM|#

John-

I've very rarely said anything about the Geneva Conventions. Even when discussing the guys at Gitmo I've based my arguments on concerns about the possible dangers inherent in our policies rather than the Geneva Conventions.

|9.17.05 @ 4:49PM|#

...the confirmation hearings have given John Roberts a sense of what it's like to be detained indefinitely under threat of torture...

Interesting choice of words. Similarly, Nat Hentoff asks in his latest column, has any present Supreme Court justice seen a cop lying on the witness stand?

|9.19.05 @ 12:22AM|#

Jim-

That's a very good article that you linked to.