Re: News Release




"Rod Engelsman" <rod.engelsman@xxxxxxxxx> wrote in message
news:QmC0g.56$k_.147557@xxxxxxxxxxxxxxxxx
Cliff wrote:
"Rod Engelsman" <rod.engelsman@xxxxxxxxx> wrote in message
news:k4A0g.44$471.148624@xxxxxxxxxxxxxxxxx
Cliff wrote:

No according to the Geneva conventions. You can argue the point all you
want but the facts, laws and rules speak for themselves.
From Wikipedia: http://en.wikipedia.org/wiki/Illegal_combatant

Copy and paste snipped, I was not looking for other peoples
interpretations especially wikipedia.... I try to think for myself. Next
time post the relavent portions of the GC not someone elses
interpretation

Fine. Here you go...

Article 4

A. Prisoners of war, in the sense of the present Convention, are
persons belonging to one of the following categories, who have fallen into
the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well
as members of militias or volunteer corps forming part of such armed
forces.

2. Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party to
the conflict and operating in or outside their own territory, even if this
territory is occupied, provided that such militias or volunteer corps,
including such organized resistance movements, fulfill the following
conditions:

(a) That of being commanded by a person responsible for his
subordinates;
(b) That of having a fixed distinctive sign recognizable at a
distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the
laws and customs of war.

3. Members of regular armed forces who profess allegiance to a
government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being
members thereof, such as civilian members of military aircraft crews, war
correspondents, supply contractors, members of labour units or of services
responsible for the welfare of the armed forces, provided that they have
received authorization from the armed forces which they accompany, who
shall provide them for that purpose with an identity card similar to the
annexed model.

5. Members of crews [of civil ships and aircraft], who do not
benefit by more favourable treatment under any other provisions of
international law.

6. Inhabitants of a non-occupied territory, who on the approach of
the enemy spontaneously take up arms to resist the invading forces,
without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under
the present Convention:

1. Persons belonging, or having belonged, to the armed forces of
the occupied country...

...

Article 5

...

Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy, belong to
any of the categories enumerated in Article 4, such persons shall enjoy
the protection of the present Convention until such time as their status
has been determined by a competent tribunal.




Where the Bush administration has fallen down is on two points.

1. Contrary to your vehement declarations, the term "unlawful combatant"
(or any synonym thereof) doesn't actually appear anywhere in the GC. At
best the term is defined only in the negative sense of persons not
fulfilling the requirements to be considered POW's, Protected Persons,
or other classes.

And that means that the law does not apply. Again laws are black and
white they either apply or they do not.

2. The GC requires that all persons taken prisoner on the battlefield be
accorded POW status until their true status is determined by a competent
tribunal. This only happened now 3 years later after a determination by
SCOTUS that the administration was breaking the law.

And what is the time frame set forth in the GC?????

The time frame is immediately upon capture until such time as a
determination has been rendered. So if the administration sought to
classify these prisoners as anything other than POWs it would have been
best to simply do that immediately through the proper channels.

Do you not have a concept of "Should any doubt arise"?

Instead they labeled them "illegal combatants" immediately upon capture
without the benefit of "competent tribunal", stuck them on in an island
prison, and claimed that no one, not even the US court system had any
jurisdiction because of the location.

And just what was this "determination"? I have yet to see SCOTUS rule on
this. Can you provide a link possibly?

Knock yourself out...
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-334

Basically, the administration's position was that the prisoners at Gitmo
had no right to access to the US court system to appeal their status. The
US Supreme court held otherwise and subsequently the military commenced
status hearings in which 38 prisoners were released.

And a very bad decision it is.......quoting Judge Scalia:
"consequence of this holding, as applied to aliens outside the country, is
breathtaking. It permits an alien captured in a foreign theater of active
combat to bring suit against the Secretary of Defense."
"The Commander in Chief and his subordinates had every reason to expect that
the internment of combatants at Guantanamo Bay would not have the
consequence of bringing the cumbersome machinery of our domestic courts into
military affairs,"
And I agree wholeheartedly with him.

My point is that it didn't have to be this way. We are a civilized nation
with a highly developed legal and judicial system. The administration
could have gone about all this in a fashion consistent with US law and
International Treaty obligations and we wouldn't be facing criticism from
our international allies.

Yes, and I quote Scalia again:
"The Commander in Chief and his subordinates had every reason to expect that
the internment of combatants at Guantanamo Bay would not have the
consequence of bringing the cumbersome machinery of our domestic courts into
military affairs,"

I proudly wore the uniform of our armed services for 9 years because I
believe in the principles that our country espouses. Fair trials,
everything in the open and above-board. No secret prisons, kangaroo
trials, or torture. It distresses me to see our country's reputation by
needlessly sullied in this fashion.

The difference between us and them is just what you have seen above. We do
have laws and rules that we follow. I personally think that it was a bad
decision, Scalia is right on the mark with his dissent.



.



Relevant Pages

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