On 6/23/05, Dan Minette <[EMAIL PROTECTED]> wrote: replying to me <snip> > If they did not have a clear sign, recognizable at a distance, if they were > determined to be AQ, then the US could say they didn't have a doubt and no > tribunal was needed. That may be a bit lawyerly, but it seems to match the > plain sense of article 5. I don't think that Bishop Berkley style doubts > count, either. The administration correctly argues that AQ are not POWs. (I'm back from ApolloCon and recuperating.) > > > Before getting to the clinchers let's check with some experts. > > > > ""The Administration is applying the wrong part of the Conventions. > > They have invoked the provisions for irregular combatants not under > > Article 4-1, but under Article 4-2. They are treating them as though > > they are guerrillas or partisans who were fighting for a party to the > > conflict. And that's wrong in my view," said Robert Goldman, professor > > of law and co-director of the Center for Human Rights and Humanitarian > > Law at the Washington College of Law, American University. > > I'm a bit confused as to what point he was making. That AQ was not party > to the conflict with the US? I'd argue that they were the senior party and > that the Taliban were the junior party...who harbored them and gave them a > safe base from which to stage attacks. It's hard to say what particular action of the administration he is responding to. The administration has lumped previous Afghanistan government forces, narcotics traffickers, Iraqi soldiers, Iraqi insurgents, anti-American religious fanatics and AQ into one group - terrorists. > > ""We don't have the facts. We don't know to what extent these people > > had a proper command structure, wore some sort of distinguishing > > features and complied with the laws of armed conflict. We just don't > > know," said APV Rogers, OBE, a retired major general in the British > > Army and recognized expert on the laws of war. > > Who's "we"? I think it is reasonable to assume that that is a > determination that can be made in the field of whether they had a > distinguishing feature recognizable at a distance.
If that is your requirement the most modern elements of the US Army, the different ranger and ranger type units, are not entitled to POW status. I believe he has a better grasp of the Geneva protocols as to what is a recognized military which does include more than uniforms. > > "The Bush Administration, by contrast, is claiming that there is no > > doubt. In its view, neither Al Qaeda nor the Taliban are eligible for > > POW status because they did not wear uniforms or otherwise > > "distinguish themselves from the civilian population of Afghanistan" > > or "conduct their operations in accordance with the laws and customs > > of war"—an argument that is disputed by the majority of our experts. > > IIRC, they got back a legal review and grudgingly accepted that the Taliban > probably qualified. It is not clear this grudging acceptance applies operationally, we are still shipping prisoners out to other states for torture and interrogation. > > "Some of our experts said they feared the Administration's decision > > could come back to haunt US soldiers should they ever be captured by a > > foreign enemy, particularly special forces who usually don't wear > > uniforms. "I think we may have set a bad precedent. The drawback is > > that we have given the other side some ammunition when they capture > > our people," said H.Wayne Elliott, a retired US Lieutenant colonel and > > former chief of the international law division at the US Army's Judge > > Advocate General's School." > > From an article on "POW's or Unlawful Combatants" > > http://www.crimesofwar.org/expert/pow-intro.html > > > > You might claim that is a liberal source so let us see what the > > International Red Cross has to say: > > > > "The legal situation of 'unlawful/unprivileged combatants'" In it > > the Red Cross argues while these detainees may not be POWs as defined > > by the Third Geneva Convention ("Geneva Convention relative to the > > Treatment of Prisoners of War"), they still deserve more limited > > protections under the Fourth Geneva Convention ("Geneva Convention > > relative to the Protection of Civilian Persons in Time of War") and > > the First Additional Protocol to the Geneva Conventions. > > That is a reasonable arguement. But, the question is, what sort of > protection do they deserve.. Do they deserve protection against > unpleasantness, as do real POWs? Is anything that could be called > undignified unacceptable. Take the case in Time magazine. If this is the > extreme treatment that was only authorized for a few high value prisioners > (like the probable 20th hijacker) is that acceptable, or must You trailed off but I get the gist. To what extent do you want to give the protectors of the state a free pass on what they do to the most well known political prisoners? There have been numerous accounts of abuse of Gitmo and other prisoners. If you read the tales and did not know where they occurred you would think they did take place in a Gulag. (Unlike the Senator I will not apologize for speaking the truth.) I am wondering how popular the new Iraqi prisoner show would be in the US, beaten prisoners are shown recanting the evil of their ways and telling wild stories of how they are the scum of the earth. Should we get a conservative Jerry Springer to showcase our "terrorist" prisoners? (Former commander of Gitmo estimates 40% are innocent.) > > "Persons protected by the Convention are those who, at a given moment > > and in any manner whatsoever, find themselves, in case of a conflict > > or occupation, in the hands of a Party to the conflict or Occupying > > Power of which they are not nationals." > > http://www.unhchr.ch/html/menu3/b/92.htm > > > Doesn't get much plainer that the Geneva Convention covers them. > > But, the paragraph that I quoted came _immediately after that. Let's put > them together: > > "Persons protected by the Convention are those who, at a given moment > and in any manner whatsoever, find themselves, in case of a conflict > or occupation, in the hands of a Party to the conflict or Occupying > Power of which they are not nationals. > > Nationals of a State which is not bound by the Convention are not > protected > by it. Nationals of a neutral State who find themselves in the territory > of > a belligerent State, and nationals of a co-belligerent State, shall not be > regarded as protected persons while the State of which they are nationals > has normal diplomatic representation in the State in whose hands they > are." > > I took the meaning of this as "the persons protected are as defined in > paragraph 1 except under the conditions listed in paragraph 2." > > > > > "A combatant who falls into the power of an adverse Party while > > failing to meet the requirements set forth in the second sentence of > > paragraph 3 shall forfeit his right to be a prisoner of war, but he > > shall, nevertheless, be given protections equivalent in all respects > > to those accorded to prisoners of war by the Third Convention and by > > this Protocol. This protection includes protections equivalent to > > those accorded to prisoners of war by the Third Convention in the case > > where such a person is tried and punished for any offences he has > > committed. > > I think this is your strongest point. My quesiton is, given this clause, > what value is there in being a POW? Why bother declaring a right is forfit > if it is given back in the next breath? I'm not quite sure what the intent > of the entire paragraph is....or why they bothered declaring who was and > who wasn't a POW in this protocal. The stance of the experts I cited seems to be all prisoners, POW or not, are entitled to the standard of care specified in the Geneva Conventions except for communications between governments regarding the prisoners. > > > Do you still say the Geneva Conventions do not apply? > > That one paragraph I mentioned does indicate that it does, but I think that > the one you said was crystal clear really isn't....because of the second > paragraph. > > I'm curios what your point of view is. Should we have freed all members of > AQ that we could not prove committed war crimes? Should we have just > refrained from torture? Should we have ensured that there were no > "unpleasant results" from not answering questions....I presume this > includes the witholding of privledges that one is not required to grant. > No carrot, no stick at all, is the way I read the Geneva Conventions on > POWs. Is that what you think should be the case? "Unpleasant results"... I am opposed to using torture in the name of democracy. I am wondering if you are minimizing or are truly unaware of some of the things classified under "unpleasant results" which in places outside of Gitmo have included torturing people to death. Bush&Co. had to make a decision how to treat those who attacked the US. They went along like the overage frat boys they are saying what they would like to have done to them and then got their lawyers to come up with reasons and ways they could ignore the military justice system and our prisoner system and use rogue agent CIA rules. GBay, a location under our control but not part of any state, was one way. In a time of crisis the American people will go along with what the Prez wants. As months and years go by they will start to evaluate his wisdom and judgement or lack of it. > > This is pretty basic stuff and trying to argue that none of the Geneva > > Conventions apply just lowers the standing of the United States in the > > world. > > If it were that simple, then why do people use false logic to make their > points? You are the first person that I've seen bring up that paragraph > with regards to the convention in order to argue that it is an expansion > clause. That is, BTW, the best argument that I've seen for the AQ having > protection equivalent to POWs. If that were the case, then it seems to me > that the Geneva Convention states we cannot use any carrots or any sticks > when questioning terrorists. The exception would be to treat them as > common criminals, but that model was fairly ineffective. One example of > this was AQ stopping the use of cell phones after they found out, from > testimony in the initial WTC bombings that the US used cell phone > transmissions to follow them. I think you are reaching when you say the Geneva Convention says no carrots and while beatings ("sticks") don't seem acceptable other forms of disapproval may be. I think actual terrorists should have military trials and be shot. I think about half the prisoners are being held on suspicion by being in the wrong place at the wrong time and are being kept for years without rights under constant harassment on the small chance that the interrogators might learn something. I think after a year if they can't charge them with something they should let them go or make a determination they are holding them to provide evidence in a specific future case against someone. > I think it's a difficult problem that's worth discussing. I get the > feeling that you think that all we need to do to protect ourselves against > AQ and the like is improve the morality of the US foreign policy. If this > is not the case, then we could have an interesting discussion. If it is; > we can still discuss it, but I'm not sure it would be as informative. I don't think it is the only think we need to do but improving US foreign policy would be one of the best things we could do. Improving the ideas of democracy we try to promote is another. Torturing and allowing torture to promote democracy is not a good idea. Since 9/11 this administration's war on terror has helped the terrorists by turning Iraq into a much better training ground than Afghanistan under Soviet occupation - CIA report. I could go on. There is not one thing I can point to that has helped the US and many things that have hurt us. Who would have believed that we would have a president calling Iraq a victory for democracy when they have an incipient government leaning toward Iran promoting an Islamic state with a civil war with hundred of casualties a month and the most likely result an anti-Americanism that will last for decades? Sorry, this is getting OT and has turned into an anti-Bush rant. I had been looking through my archives and seeing all the bad things we warned about actually turning out even worse than expected and I can't find any good things that came true. Well, maybe the economy, has poor as it is, is still better than I thought it would be at this time. Cassandra must have been one pissed-off broad. -- Gary "Who would Jesus torture?" Denton http://www.apollocon.org June 24-26 Easter Lemming Blogs http://elemming.blogspot.com http://elemming2.blogspot.com
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