Bush Regime Collapsing

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Supreme Court says 5-3 that military war crimes trials for Guantanamo prisoners overstep Bush's presidential authority.

In unrelated (?) news, his daughter Jenna quietly announces plans to flee the country for Latin America.

NEXT: The Really Long Arm of the Law

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  1. The SCOTUS also said that we can hold combatants for the duration of hostilities. We just can’t try and “punish” them.

    That doesn’t exactly sound like a win for the plaintiffs, since it will be many years before all the fighting dies down, even just in Afghanistan.

  2. On the surface, it’s another disappointing vote by Thomas. I’ll have to read his dissent tonight before I pass final judgement.

    I’d already writting off Scalia as a defender of civil liberties long ago.

  3. From the same article: “Two years ago, the court rejected Bush?s claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this follow-up case, the justices focused solely on the issue of trials for some of the men.” If the prior holding stands, then this pretty much should hasten this blot’s closing.

  4. bubba-

    Is it bad that we can hold them for the duration of hostilities? I mean, isn’t it pretty well established international law that one can take prisoners in war?

    Yes, I know that the evidence against many of these guys is pretty thin, and they should each get some kind of hearing to establish whether they’re really enemy combatants. But for those who are found to be combatants, what’s the problem with holding them?

  5. Why are all the names in italics? Are they talking about ships? I’m very confused.

  6. Is it bad that we can hold them for the duration of hostilities?

    It’s bad in this case because the “War on Terror” by definition can never end, so “for the duration of hostilities” means forever and ever.

    Anyway, far more important: what will Michelle Malkin say about the Bush daughter going into the heart of the Latinofascists to assist with the Mexifornian invasion? Traitor. Moonbat.

  7. “It’s bad in this case because the “War on Terror” by definition can never end, so “for the duration of hostilities” means forever and ever.”

    OK. Yes, I agree that that’s a problem. I just wonder what the alternative policy would be. Not take any prisoners? I mean, what happens if some al Qaeda forces in Afghanistan get cornered and surrender to American troops. What do you do with them? Let them go? Try each and every one of them in Afghan courts? Is that practical?

  8. “Why are all the names in italics?”

    There’s an increasing trend in news articles to put proper names in italics or boldface the first time they appear. I’m assuming that’s to make it easier for readers to skim the article and see who is being discussed in it.

  9. There’s an increasing trend in news articles to put proper names in italics or boldface the first time they appear.

    It makes the tone of the article seem shrill and breathless to me. I don’t like it, sir.

  10. The Constitution is clear on the matter. How the enemy it to be detained it reserved to Congress. It’s Bush’s fault that he was confused to think it was his right to do so. It’s Congress fault for not do their constitutional duties of giving the President the guidelines with this first started. Of course I’m expecting the right-wing pundits that have never read the Constitution to blame this on “liberal judges”.

    What needs to be done now is what needed to be done in the first place, go to Congress and have them define it so he can execute it.

    I must note the lack of constructiveism applied by those who claim to be a constructionist.

  11. I wish Jenna well, the idea of educating people in lands abroad is a noble one, but I hope she is mindful that many in Latin America hate her grandfather and her dad. Some may have grudge against the Reagan administration which her grandfather was Vice-President. This poses a serious security risk for her not to be taken lightly. She would be foolish to bet that people will distance her from the politics of her family on grounds that she has kept her distance from the politics.

  12. It’s bad in this case because the “War on Terror” by definition can never end, so “for the duration of hostilities” means forever and ever.

    Not at all. Like all wars, this one will last until the enemy surrenders. If AQ wants its people out of Gitmo, all it has to do is cease hostilities and announce that it will study war no more.

    Of course, we should tag everyone we release from Gitmo in some way, so that if they are ever captured again they can be identified as former detainees and executed on the spot. As befits illegal combatants and war criminals.

  13. The court appears to have held that Article 3 of the Geneva Convention applies to AQ as a treaty obligation. That casts a lot of doubt on all sorts of prisoner treatment.

  14. “It makes the tone of the article seem shrill and breathless to me. I don’t like it, sir.”

    Hey, I didn’t invent the practice.

  15. we should tag everyone we release from Gitmo in some way

    Interesting. It wouldn’t surprise me if the prisoners have had identifying or tracking devices implanted without their consent or knowledge. Wouldn’t be hard to do.

  16. I passed no judgment on the strategic value of holding the prisoners. I just don’t think that the intended outcome of the lawsuit was to affirm the indefinite detention.

    Maybe they figured that any sentence passed by the tribunal would be longer than the likely detention.

    However, I thought the whole point of the tribunal was to give the prisoners a chance to exonerate themselves and win release.

    With respect to length of detention, it’s pretty easy to justify holding Taliban members until the Taliban actually surrenders.

    Legally, the relevant argument seemed to be whether or not the Geneva Convention applied. I don’t see how a vote against the relevance of the treaty is in any way a question of denying civil liberties.

  17. “Of course, we should tag everyone we release from Gitmo in some way, so that if they are ever captured again they can be identified as former detainees and executed on the spot. As befits illegal combatants and war criminals.”

    Does that include the ones who are handed in for a second time in exchange for a bounty or because they pissed off a local power broker, or drive a car for someone, or saw Bin Laden on television?

  18. Actually bubba, that’s a very good point. One of the biggest objections to Gitmo is that a large fraction of the prisoners are not really al Qaeda, but were picked up erroneously. So the answer to that should be to have some kind of hearing for every prisoner to determine whether they are actually combatants or not. But if that’s what the military tribunals were supposed to do, then what do we do now?

    I guess I have to plead ignorance on this point. What does the Geneva Convention require? If there’s some question as to whether a prisoner is really an enemy combatant or not, who is supposed to adjudicate that?

  19. Of course, we should tag everyone we release from Gitmo in some way, so that if they are ever captured again they can be identified as former detainees and executed on the spot. As befits illegal combatants and war criminals.

    RC, are you suggesting that everyone in Gitmo is an illegal combatant and/or war criminal?

  20. After taking a good look at the Geneva Convention it is easy to understand that AQ members are not covered. But not everyone in Gitmo was a figher for AQ. This complicates the matter.

    Geneva Convention Article 4 paragraph 6 gives POW status to “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”

    How many in Gitmo does this apply to? Past comments by Rumsfield alluded that many of those in Gitmo were seized in the above fasion.

    The bigger problem is one not of ideas but one of quality. Many times we accepted hearsay as proof. A warlord would deliver people they claimed were enemy for a profit, and we had no way of knowing if their claim was true.

    Because of the lack of quality in taking prisoners Bush needs a tribual that is equally lacking in quality

  21. are you suggesting that everyone in Gitmo is an illegal combatant and/or war criminal?

    Who knows? My guess is that there is at least some reasonable suspicion behind each detention. If the government were interested in throwing the entire population of Afghanistan/Iraq into prison, that’s what they’d be doing. But they’re not. People in Gitmo were all jailed because they allegedly either fought in combat against coalition forces or are suspected of terrorist ties.

    That being said, it’s certainly possible that there are a few innocent detainees. Remember that a lot of detainees have already been released. And of those, several have been captured again fighting U.S. forces. And those were the ones that supposedly posed not threat. Hardly the behavior of innocent people.

    Obviously there needs to be some sort of legal proceeding to determine the guilt or innocence of detainees, but I’m comfortable with waiting until hostilities have ended or at least settled down.

  22. My guess is that there is at least some reasonable suspicion behind each detention. If the government were interested in throwing the entire population of Afghanistan/Iraq into prison, that’s what they’d be doing. But they’re not. People in Gitmo were all jailed because they allegedly either fought in combat against coalition forces or are suspected of terrorist ties.

    If one must guess, then why trust the government? And obviously no one is suggesting the government wants to imprison all of any country, but it does have a long, documented history of incompetence. It seems to me that one of the basic philosophies behind our Constitution (at least the spirit in which it was written, the overwhelming feeling of the Founding Fathers) is that you really ought not to give the government the benefit of the doubt.

    Obviously there needs to be some sort of legal proceeding to determine the guilt or innocence of detainees, but I’m comfortable with waiting until hostilities have ended or at least settled down.

    What’s the harm in determining their guilt or innocence now?

  23. Sorry to ramble, but I forgot one thing.

    Remember that a lot of detainees have already been released. And of those, several have been captured again fighting U.S. forces. And those were the ones that supposedly posed not threat. Hardly the behavior of innocent people.

    You’re absolutely right. But if the government is letting guilty people go, thinking they’re innocent, that’s just more evidence that their incompetence probably includes detaining innocent people, thinking they’re guilty.

    It’s incompetence all around, I tells ya!

  24. Prisoners of war? What war? Did we declare war on someone? What the heck are you people talking about? Were any of these guys in uniform, fighting against us in a declared war?

    Ohhh… I see the logic! Now I understand why potheads, crack smokers, and meth freaks are put away for such a very long time. They are prisoners in the War on Drugs and could very well be so for the duration of that war. Gosh what a silly person I am..

  25. If one must guess, then why trust the government? …It seems to me that one of the basic philosophies behind our Constitution…is that you really ought not to give the government the benefit of the doubt.

    The Founding Fathers certainly encouraged a healthy skepticism toward government. That’s all well and good, but there’s a difference between healthy skepticism and automatically assuming that everything the government says is bullshit.

    What’s the harm in determining their guilt or innocence now?

    Two reasons:

    1. Intelligence. It’s important that we don’t let the enemy know who we have and what they’ve told us. Obviously, OBL or whoever will probably assume that someone’s been killed or captured when he doesn’t hear from him in a while. Far better to keep him in the dark though.

    2. As you said, and the link I gave demonstrates, mistakes have been made already in releasing prisoners. It’s far better to hold them until there is no movement for them to rejoin once they get out.

    Prisoners of war? What war? Did we declare war on someone?

    So? Right or wrong, we haven’t fought a “declared war” (as in formally declared by Congress) in a long time. Not since WWII I think, though I might be wrong. I don’t like it either, but that’s the way it is.

  26. It is not enough to “not like it” when our government does not follow on our constitution or otherwise obeys the laws and limits that have been set for it. The only response is deep distrust, disgust and anger….

    I don’t know how evil the ‘doers in GITMO are and I might be inclined to assume they are guilty of something, but that does not give the govt carte blanche in how it deals with them.

  27. Like all wars, this one will last until the enemy surrenders. If AQ wants its people out of Gitmo, all it has to do is cease hostilities and announce that it will study war no more.

    Can you give me the name of the general or head of state who has the authority to surrender all of his troops on behalf of al-Qaeda, the way Robert E. Lee could surrender for the Confederacy? Or is it, “we have to keep fighting until every single individual Muslim who is willing to be violent against the United States gives up?”

  28. Jennifer-

    I agree with you that a policy of indefinite detention is problematic. But I’d like to repeat my question from earlier that no one has answered: What should the alternative policy be? Not taking any prisoners at all? What do you do if a group of al Qaeda fighters (who, in this hypothetical situation, are unambiguously al Qaeda fighters), surrenders to American troops in Afghanistan?

  29. I was addressing 3rdpoliceman… And am doing so again:

    What if some — or even one — of the detainees is innocent of any connection with OBL or the Taliban or whomever your boogeyman of the day is? Should this person not get a trial, or some chance of demonstrating his innocence? What if it was you, or your brother, in GITMO wrongly.

    Maybe we should extend your logic here. If the police find a group of young men on the street and believe that some of them may have done something wrong then it follows that all of them should be locked up for an indefinate period without trial. No sense in letting others that might have gotten away find out what reason you had in locking up the first batch…..

    Eeeek……

    Anyone else notice the number of righties that have suddenly appeared over here but who are clearly unclear on Libertarianism (whit and John I am also talking to you)? Are these guys some of those who used to follow Bushco in all things but whose disenchantment has led them over here but without having shed their reflex devotion to the State and even the Administration?

  30. “[T]here’s a difference between healthy skepticism and automatically assuming that everything the government says is bullshit.”

    I’m not so sure that’s the case, any more. I find it almost impossible to accept any “information” produced by the government- from their declaimed commitment to freedom, democracy, and human dignity, to reportage of inflation numbers- at face value.

    —-

    On the topic of recidivism amongst the inmates at Gitmo, I say this:

    If a foreign government snatched me up and “disappeared” me into a secret prison camp, where I was interrogated “forcefully” and held incommunicado for a period of years, I can assure you, that whatever my prior sentiments toward that foreign nation may have been, I would emerge as an active and implacable enemy of that land and its people.

  31. Chris,

    Unambiguously Al Qaeda fighters? Do you mean terrorists plotting or carrying out acts of violence here in the US? You arrest them, bring charges, try them in a court of law, and put them in jail.

    Do you mean presumed Al Qaeda fighters over in Afghanistan? What crime are you charging them with? Aiding and abbetting a murderer (OBL)? Maybe that’s your charge. It’s about as good as you can do: having “evil thoughts” is not a crime. And if you do bring aiding etc charges, see the paragraph above.

    Of course it is not entirely certain that these characters were, in fact, terrorists or even actually working for OBL. That can only be proven or disproven through the open discovery that comes with a fair trial. You argue that we don’t need to try people we and almost certain we don’t like.

    Again: Eeeeek!

  32. Well, it’s clear there are only two options: execute them immediately or give them candy and directions to your mother’s house with some plastic explosives. I don’t want to hear about those other mythical options.

  33. You argue that we don’t need to try people we “ARE” almost certain we don’t like.

  34. What should the alternative policy be? Not taking any prisoners at all? What do you do if a group of al Qaeda fighters (who, in this hypothetical situation, are unambiguously al Qaeda fighters), surrenders to American troops in Afghanistan?

    If actual fighters are caught in the act, then yes, we should probably keep them locked up. But the problem with the Gitmo guys, as has been mentioned many times before (though perhaps not on this particular thread) is that we were over in Afghanistan offering bounties to warlords for turning in members of al-Qaeda. And the only evidence necessary was the warlord’s say-so that the guy was al-Qaeda.

    Back in the days of the witch trials, when a mere accusation was the same thing as proof of guilt, the witch-hunters or their accusers got first pick of the condemned witch’s property. And yet nobody seemed to think “Hmm, maybe some of these guys aren’t witches. Maybe the problem here is that we’re offering big financial incentives for unscrupulous people to ruin others’ lives.”

    I wonder how many people had absolutely no beef with the US until we locked up some innocent family member of theirs? I’m as non-violent as they come, but if some army bombed the shit out of my country and made my boyfriend disappear, I could easily see myself deciding that the only thing I have to live for is inflicting misery upon those who did it to me first.

  35. What does the Geneva Convention say about guerilla wars in which you have an insurgency with no clear chain of command that can ever surrender? Is the country supposed to try everyone they capture in the civilian court system, or does international law have some other kind of guidelines for this. Surely this issue has come up before, as the world has seen plenty of such conflicts. The only thing different about this one is that it’s not just limited to Afghanistan, but there are other nations involved in the fighting (and actually, surely *that* has happened before too).

  36. Chris writes: “OK. Yes, I agree that that’s a problem. I just wonder what the alternative policy would be. Not take any prisoners?”

    Well, in a normal war, you’d release the prisoners when some representative of their nation or faction surrendered, or at least agreed to cease hostilities. (The Korean War never officially ended, but we aren’t still holding Korean prisoners.)

    In this situation, this kind of surrender is unlikely. I don’t see Al Qaeda ceasing hostilities in the same way the IRA and ETA have. Being so widely geographically distributed, it’s not really possible to put the same kind of long-lasting pressure on them.

    On the other hand, the connections between these people and Al Qaeda are of a different kind than the connections between an enemy nation or faction and its soldiers/partisans.

    Theoretically, at least, in lieu of dealing with a state or rebel faction, we’d need to deal with each individual in order to get that prisoner to surrender or at least cease participating in hostilities against the West.

    The flaw in that is the problem of monitoring compliance. But then, the same issue would seem to exist in normal wars, where in theory released prisoners could foment for a resumption of hostilities, perhaps toppling the government that surrendered. (There’s an element of this in post-WW1 Germany, if I’m not mistaken, though it wasn’t immediate.)

  37. Chris writes: “What does the Geneva Convention say about guerilla wars in which you have an insurgency with no clear chain of command that can ever surrender? Is the country supposed to try everyone they capture in the civilian court system, or does international law have some other kind of guidelines for this.”

    Since when are prisoners of war tried, guerrilas or not?

    They’re only tried for *war crimes*. They aren’t tried for having fought at all.

    An Afghan who was captured in combat against the US has not in fact committed any crimes other than defending his country.

  38. The 60s were before my time, but I’ve read about the problems this country had back then with home-grown terrorists–bombings from the Weather Underground, bank robberies and murderers from the Symbionese Liberation Army (where the hell was Symbionia, anyway?), and while these were indeed serious problems which the government needed to deal with I don’t think “lock up every hippie or black-power advocate that complains about America” would have been a just solution. Yet that seems to be what some advocate doing about the problem of Muslim terrorism.

    And before anyone brings up the distinction that in the 60s we were dealing with American citizens who were therefore deserving of rights–well, I don’t buy the idea that outside the actual boundaries of America, our government has carte blanche to do whatever the hell it wants to whatever the hell it wants to, so it’s okay for them to go to another country and lock up any old guy who looks suspicious.

  39. Chris,

    Ever notice that the insurgents of the like you mention only fight in countries that have been invaded by an outside force? If they come over here they become invaders or terrorists or somesuch. And if they fight their own country’s government and forces then they are guerrillas, or revolutionaries, or something like that….

    If I were to take up arms against the US, proclaim myself a fighter for the Devil’s Own Marching Band I suspect that I would not get renderd to another country… I would most likely be arrested, tried and put in jail.. I can yell that I am an insurgent all I want, but the fact is the best I am going to get is the title of “Traitor” (or revolutionary if my side wins)

    OH: AND WHAT JENNIFER SAID!

  40. We need new legislation that makes the undesirable consequences of foolish policy decisions illegal in times of war.

  41. The sad thing is that we’re holding tightly to the principles of warfare that lawful combatants need to wear uniforms, while we cut moral and ethical corners by ignoring the principles of warfare that ban torture.

    (Especially when considering the Afghans, where as far as I know there was no real uniform under the Taliban, and no real government with an interest in formal military dress. I would be surprised if our allies in the Northern Alliance were any more likely to wear a uniform with insignia, perhaps apart from the officer corps.)

  42. “We need new legislation that makes the undesirable consequences of foolish policy decisions illegal in times of war.”

    Good luck with that. But, if you should somehow contrive to pass that law, see if you can expand it to cover foolishness in times of peace. Mission creep, anyone?

  43. Chris,

    Article 4 of the GC determines who is a POW. Section A subsection 2 of article 4 is as follows.

    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.

    (b) would exclude members of AQ from having GC protections. There are other sections that describe POW criteria so I will post a link. But this only covers members of AQ. Citizens or non-citizens in a war zone may be receive GC protections if they meet other Article 4 requirements such as subsections 4, 5, and 6 or another section of Article 4.

    I think subsection 4 covers many of the people at Gitmo. I have an earlier post about this.

    It is evident when reading the GC that it is intended to apply to those who are willing to abide by it, which AQ is not. But not everyone at Gitmo is a member of AQ.
    For more on the Geneva Convention
    http://www.unhchr.ch/html/menu3/b/91.htm

    Now to answer some of your questions,
    ?What should the alternative policy be??
    The policy should always be one that reflects a reasonable understanding of truth, and quality, and avoids actions based from hearsay. Hearsay is ok if you use it as a starting point to gather intel, but not as our basis for proof that someone is or isn’t something.

    ?Not taking any prisoners at all??
    Taking prisoners is an option, but the above policy should be in effect. Not taking is an option. If we didn’t take prisoners we wouldn’t have the Gitmo problem.

    ?What do you do if a group of al Qaeda fighters (who, in this hypothetical situation, are unambiguously al Qaeda fighters), surrenders to American troops in Afghanistan??
    Two options, 1. shoot ?em. 2. take them prisoner. I like #1. Your operative word here is ?unambiguously?. Those that fit this criteria that are in Gitmo can not eligible for any GC protections. OBLs driver whom presumably did not take up arms does not fit this profile and he is whom the Supreme Court case is about.

    But I do want to note, it is because of the lack of quality when taking prisoners that has us in this Gitmo mess. It?s sloppy work to say the least. The Bush camp has placed its bets on fast wars, not quality wars and ended up with neither.

  44. With regards the GC, there is also the tricky matter of the Additional Protocols, which essentially extend the common clauses of the main conventions to provide more detailed coverage for “undeclared wars,” both international (I) and internal (II). Just about every ally or associate of the US is a signatory to both, but the US itself is not. Many of our associates are also signatory to the European Convention on Human Rights. (You’ll note that when the British courts strike down anti-terrorism laws, it is most often for violating the ECHR, as in the recent control order case.) The upshot of this is that the other nations providing troops in Afghanistan and Iraq are mostly operating under a different legal regime from the US – one that has been, to this point, largely incompatible with the American procedures. (Which brings up dicey legal issues when foreign armies hand over prisoners they have taken to US custody…)

  45. No problem. Hand the detainees over to the Iraqi or Afghani government as the case may be. I hear some were going to be freed to the tender mercies of the Saudis.

    I’m sure they will get the treatment they deserve in those countries.

    The law will be served and justice done.

  46. If you consider that: One, the FBI says it has no hard evidence linking Bin Laden to 9/11; two,he denied it, and in the “confession” footage, he looks and acts different, three, the Deuxieme and MOSSAD both had advance knowledge of 9/11; four, at least seven of the hijackers are still alive, having been victims of identity theft; five the MOSSAD people who took video footage of the fall of the Twin Towers, said on Israeli talk shows that they were sent over to the U.S. to “document the event,” six, MOSSAD agents occupied an Apt. in FL next to the hijackers……then some of them were caught with plans to the Alaska Oil Pipeline & Sears Tower……..both the current “El Quaeda” scenario, and the notion that others were largely responsible are kooky conspiracy theories, but the evidence is troubling; If Andreas Buhling and other foreign Intel experts are right, it is possible that someone got wind of the hijackers, then placed explosives in the buildings thus insuring long term U.S. military presence in the Middle East.
    Please see the “Spying on the Wrong People” at vitaltruths.blogsource.com….it is so much simpler to have one enemy, and be able to point to them and say, “we are good, they are evil” but sometimes the reality may be more complex than we would like………..

  47. “It’s important that we don’t let the enemy know who we have and what they’ve told us. Obviously, OBL or whoever will probably assume that someone’s been killed or captured when he doesn’t hear from him in a while. Far better to keep him in the dark though.”

    That’s why I thought Saddam Hussein’s capture should’ve been kept secret. He should’ve been put into something like a witness protection program with a new identity and supplied with whatever he liked to gain his secret cooperation, or tortured if that works better.

    I guess I’m not much of a people person, so I have trouble keeping people straight. So when I edited Free New York I adopted a practice, with a note to the reader to that effect, of making it easier in long articles to keep people straight, by putting the defining (usually the first) invocation of someone’s name in bold face, if that name comes up later in the article. However, publisher Rick Wolff decided to put all the other first occurrences of names also in bold, even if they were the only occurrence, for fear of snubbing those whose names weren’t bolded.

  48. “But I’d like to repeat my question from earlier that no one has answered: What should the alternative policy be?”

    I like this idea:
    http://www.legalaffairs.org/issues/July-August-2005/feature_burgess_julaug05.msp

    Treat them as pirates.
    There are established international laws and procedures.

    Or we could use the international criminal court.

    Lots of options are available.

  49. TrickyVic writes: “(b) would exclude members of AQ from having GC protections.”

    It also excludes our CIA and Special Forces personnel who operated in Afghanistan, the vaunted spooks on donkeys in Arab garb.

  50. “Ever notice that the insurgents of the like you mention only fight in countries that have been invaded by an outside force?”

    Huh? What are you talking about? Unconventional wars (in which one or both sides doesn’t belong to any kind of conventional army or wear a uniform) happen all the time in countries that haven’t been invaded by the outside.

    I guess my bottom line is that either 1) we’re still at war with the Taliban (and al Qaeda fighters can be lumped in with them as aiding the Taliban), and so we can hold them until hostilities are over (but this is complicated by the fact that there’s no clear chain of command for the Taliban to ever surrender), or 2) al Qaeda and the Taliban are participating in an armed insurrection against the government of Afghanistan, and we’re helping the government of Afghanistan to defeat it. In which case, I guess we would let the Afghans figure out what to do with prisoners. Of course, then the question would be “what should the Afghans do with them”? Perhaps try them for treason or some such thing. I was just wondering if that’s the course of action prescribed by international law, or if there was some acceptable alternative to dealing with such rebellions.

  51. “It also excludes our CIA and Special Forces personnel who operated in Afghanistan, the vaunted spooks on donkeys in Arab garb.”

    Yes, I always think about that issue too whenever some idiot starts spewing about how people out of uniform should be summarily executed. Not to mention un-uniformed “civilian contractors,” i.e., mercenaries.

  52. It seems to me that domestic law enforcement makes enough mistakes right here at home, where witnesses can be easily subpoenaed (at least in theory), chains of custody for evidence are easier to establish, etc.

    I can’t imagine how many mistakes are made in a war zone.

    That seems like a powerful argument against summary execution for anybody nabbed twice. If you’re a villager in a lawless region frequented by bandits, terrorists, local warlords, and foreign forces (some of them operating out of uniform), it only makes sense to carry a rifle at all times and challenge any stranger who stumbles into your village. If doing that is considered an act of war against the US, and the cost of doing it twice is summary execution, well, there are obvious problems.

  53. Anyone else see this:

    “[In the Hamdan decision,] Justice Thomas refers to Justice Stevens’ “unfamiliarity with the realities of warfare”; but Stevens served in the U.S. Navy from 1942 to 1945, during World War II. Thomas’s official bio, by contrast, contains no experience of military service.”

    Yet another chickenhawk Republican spitting on yet another veteran for trying to restrain King George.

  54. Joe, Joe, Joe. Naval service in WWII doesn’t mean anything. That was before 9/11. Things are different, now.

  55. I read that Stevens served as a code-breaker, suggesting that he knows something about intelligence work during wartime.

  56. “As Justice Kennedy stated straightforwardly, yet ominously for the Administration: “By Act of Congress . . . violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel,” and “there should be no doubt . . . that Common Article 3 is part of the law of war as that term is used in” the UCMJ.”

    http://writ.news.findlaw.com/dorf/20060630.html

    Just found this via google news. Enlightening analysis froma knowledgeable source. But I’ll put it here anyway, since nodody is likely to see it, at this point.

  57. Is it just me or did Justice Thomas’s opinion read more like a political pundit or a politician than an educated, and experienced Supreme Court Judge? It was big on rhetoric and low on substance.

    On another note:

    Jon writes
    >>””TrickyVic writes: “(b) would exclude members of AQ from having GC protections.”

    It also excludes our CIA and Special Forces personnel who operated in Afghanistan, the vaunted spooks on donkeys in Arab garb.

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