Extraordinary Rendition

It's been a while since I read the Geneva Conventions so forgive me if I'm remembering incorrectly here...

But the gist of the illegal versus legal combatant stuff in them didn't seem to apply to fhe other sections on treatment of detainees regardless of their status.  If we're a signatory of the Geneva Conventions we have to treat the detainees accordingly.  The illegal vs. legal combatant stuff seemed to apply more to the agreed upon rules of combat more than anything, which seem to be fairly regularly ignored in almost any asymmetrical warfare situation.

That said I believe the detainees are protected under the Geneva Conventions against torture, not just that we have some moral obligation.  As such they should probably work a bit harder to ensure that incidents of torture aren't popping up and hurting our image and getting us accused of war crimes.

The extraordinary rendition stuff is just morally repugnant if we oppose torture.  It doesn't somehow make it less so if we outsource the dirty work.  We'll still get the blame and the negative ramifications when it comes to light.

As far as holding the detainees themselves the Geneva Conventions seem to establish the rules for Prisoners of War as being held up to the end of the conflict.  While some people complain that the "War on Terror" has no end, it isn't the "War on Terror" that is the "war" in question legally speaking.  As the U.S. Courts, including the Supreme Court  itself, have easily deduced from the beginning on these detainee questions the real conflicts in question are the conflicts in Afghanistan and the conflicts in Iraq individidually.  The "War on Terror" is a name for a policy, not in and of itself a war.  It's a policy that includes the possiblity of military action as we've seen but that's not really the same thing as far as the law or the Courts who interpret the law are concerned.

Also Prisonsers of War cannot normally be charged with crimes unless they committed war crimes or offenses while in captivity.  Hence their enemy combatant status as opposed to POW status.  We are treating them like terror suspects in law enforcement on one hand and PoWs on the other.  This might be a more pragmatic policy given the circumstances but the treaties we're obligated to and the laws we're obligated to follow don't mesh well with it.  Hence why Bush got himself into all sorts of a mess.  Somehow I doubt if the Gitmo detainees had PoW status the Supreme Court would have ruled that they had a right of habeas corpus even if they were within the jurisdiction of the federal courts as PoWs are a military matter almost entirely outside of their jurisdiction to remedy except in unusual situations.  Since they were merely enemy combatants, which legally has only the closest parallels to an international law enforcement issue, they ruled as if they were common criminals being held on US soil.

It seems that Bush is trying to be pragmatic about Gitmo but the applicable treaties and laws don't mesh with pragmaticism.  I think he could be handling this a bit better, but I don't think he's being the big demon some folks have made him out to be on the gitmo issue.

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Glock21 Op/Ed

Narc... as far as legal and Court rulings go it's not really all that namby pamby.  "War on Terror" is a policy name.  The war in Iraq is an actual war.  The war in Afghanistan is an actual war.  The "War on Terror" is a policy name which, as described by the President shortly after 9/11 includes numerous non-military policies as well, including boosting international cooperation on law enforcement for tracking terror cells/funding, reorganizing intel services for the threat, Patriot Act changes, etc.

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Glock21 Op/Ed

PB & Xian - Strictly speaking we aren't speaking about a race anyway but a religion.  It happens that most of the adherents, but not all, also hail from Arabic background but also Persian and others as well.

Glock, PB's interpretation is correct.  I don't know if you'd consider me an authority but international law is something I have studied formally, in fact, taking classes under Francis Boyle.  I doubt he'd agree with me, but the treaty as worded is clear.  Terrorists get no protections.  Francis, freely admitted that mercenaries get no protection either (he has a particular disdain for Dyncorps).  The reason for this is simple and my thoughts are largely contained here.  In short, the laws of war exist to make sure the right people die and the wrong people don't.  The rationale for leaving churches, schools and hospitals alone need no explanation, but those exemptions cease to apply when enemy forces use them for combat operations.  The very tenets of the laws that are being (mis)applied here are being used consciously and directly by Al Qaeda and friends to ensure a lose-lose scenario for US forces.  We either lose because we don't engage the enemy or we lose because we do engage them, "innocent" people die, and the press is ready to report the "atrocity".  In this way, they really are a brilliant foe... completely immoral, but nonetheless brilliant.  They've got an astounding PR system that should be the envy of anyone in marketing and they're kicking the ever loving crap out of us with it.  They know our national weaknesses and they exploit them... and they're doing a great job... immoral yes, but they're still winning that front of the war.

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j
Part-Time Pundit

pb/jb... It would seem that Article 5 requires more than just a few officers but a more official and fair tribunal to determine that they were not lawful combatants, and during that time they are afforded protections as if they were.  That's my understanding of it at least.

Now once they failed to meet the tests as PoWs then it would fall to the 4th Geneva Convention's provisions which are a bit more haphazard on whether or not they afford the detainee much further protection beyond other treaties and applicable laws.  It seems that depending on their nation of origin and other circumstances they'd have to be prosecuted as soon as feasible.  If they are part of an unprotected class then it'd probably fall back to other treaty obligation and laws on what to do with them.

So far I think Bush's approach on the gitmo situation has probably been a bit more pragamatic under the circumstances but it's hurting our image since the Geneva Conventions are held in such high regard and even interpretive differences like this don't go over very well with our allies.

jb... as for actions prior to capture I think I'm pretty much in agreement with you.  We keep getting blamed for the fall out over the enemy's violation of the rules of war and we are losing the PR campaign on that front.  Whenever these yahoos use a mosque as a military base, civilian areas as staging grounds, etc we should be on the offensive on the PR front to demonize them instead of issuing technical rebuttals that get ignored as the world is flooded with images of what the US does to Muslims and innocent arabs, etc in propaganda that affords little to no responsibility to the people who are dragging those places and people into the conflict zone.  As far as post-capture issues my primary concern is to ensure that combatants do not return to the field of battle while the conflict continues.  With al Qaeda based unlawful combatants extended prison sentences would be preferable so they cannot rejoing conflicts against us elsewhere either.

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Glock21 Op/Ed

The people at Gitmo, as far as I know, constitute people that we apprehended before we occupied Afghanistan and Iraq, or were captured during the invasion.

Holding people "indefinitely" is certainly what international law invisions for acts of war.  Indefinite isn't the right term, we're holding them until hostilities are over. 

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j
Part-Time Pundit

PB says "The strategy is specifically designed to exploit one of the fundamental concepts of American law: that which is not expressly forbidden is necessarily allowed."

I say the strategy is not an exploitation but an avoidance of American law, as such it is dishonest, disgusting and should be an embarassment to every American.

There are unlawful combatants during real war... in fact, there is no such thing as an unlawful combatant in a non-war scenario.  Please read the basic literature before you start calling people illogical.

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j
Part-Time Pundit

PoW status eligibility is established by the 3rd Geneva Convention, not US law, and we're obligated to abide by it as a signer.  Not sure how you can fault us for abiding by the Geneva Conventions on that point. 

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Glock21 Op/Ed

Anonymous... the 3rd Geneva Convention specifically describes who qualifies for Prisoner of War status.  It isn't just anybody detained in a war zone:

"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, 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.

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, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, 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."

You'll notice that people who aren't part of or associated with normal military forces, militias, etc tend to be excluded with emphasis on ensuring that combatants clearly act as such to avoid endangering the civilian population and abide by the laws and customs of war.  So no, not everyone detained in a war zone is a "Prisoner of War" by the legal definition under the Geneva Conventions.   

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Glock21 Op/Ed

It's actually pretty damn clear.  It's not an either or for those for conditions, it's an "and"... Al Qaeda doesn't carry arms openly, they don't have a fixed sign recognizable at a distance (i.e. a uniform), they most certainly do not conduct themselves according to the laws of war, and its unclear whether their command structure is really what is required by the Geneva Conventions (that's the one they MIGHT pass muster on).

No serious reading of the Geneva Conventions can lead one to believe that Al Qaeda is entitled protection (the Taliban is probably another story).

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j
Part-Time Pundit

Anonymous... if that were true I think you'd be able to point out how and why as opposed to just claiming our interpretation with the text of the convention right there to confirm it is somehow an uneducated and incorrect view. 

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Glock21 Op/Ed

Narc... the Courts have ruled that the actual wars themselves will be used to judge this matter, not whether or not the policy known as the "War on Terror" is ongoing.  The "War on Terror" is a policy name which, like the "War on Poverty" or the "War on Drugs," is not in and of itself a military conflict though like the "War on Drugs" it does include some military elements and policies.

As described right off the bat this policy would include law enforcement and international cooperation to cut off funding and support to terrorist networks, pressure nations to stop supporting terrorist groups, and also include military action.

The courts have rightly noted that as far as the conflicts that arise that the suggestion that detainees could be held forever as long as the "War on Terror" policy was in place was inaccurate.  The rules of war do not work that way.  They apply to the specific conflicts involved such as the specific conflict in Afghanistan or the specific conflict in Iraq.  If we left both today but the "War on Terror" remained active policy, even if we were using military force elsewhere, that would still not allow us to hold detainees from those previous conflicts if international law requires they be released at the end of hostilities in those conflicts.

So it is absolutely not true, under our laws and treaties, as well as the current interpretations of those laws and treaties, that these detainees could be held permanently as long as the "War on Terror" remains active policy.  "Indefinite" is however not an inapproprite term to use because there is no definite point in time where our involvement in the current hostilities in Iraq or Afghanistan may end.  Indefinite does not however mean permanent.

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Glock21 Op/Ed

Really now, Anon 6:13, has anyone suggested that we can extraordinarily render ourselves out of our struggle with Al Qaeda?  It's not like we are going to just find bin Laden and al-Zawahri walking down the Rue St. Germaine, shove them in the back of an unmarked van, and declare victory.  And even if we did, that would hardly do the trick.

Why we are not doing well is a lot more complicated.  It has a lot more to do with the Pakistanis letting up in the NW Frontier Province, jihadis learning new skills in Iraq, and (dare I say it) the winding down of the rendition program and places like Gitmo.  In all the sturm und drang about rendition and Gitmo, you would think that we are shipping people around by the thousands to get tortured.  In fact, few people have been sent to Gitmo recently, and the govt is looking for an exit strategy.  The same with formerly secret prisons in East Europe - shut down - and rendition, which has all but ended.  The reasons why we may not be doing well are balanced against reasons that we are - for example, catching the Glasgow / London terrorists alive, getting their cars before they blow up (and which were full of intel).  It's just not as simple as: the NIE says that we are doing poorly, we engage in rendition, therefore rendition isn't working.

It gets down to the reality of a few simple questions.  Are we at war with a terrorist movement, no matter what you call them?  Yes or no?

Is this movement as capable as the right suggests?  Perhaps 9-11 is to be considered before you answer. 

Why do these terrorists kill so many of there own people in order to destabalize a region.  Why?  What is to gain from such barbarism?

As keepers of the peace, why do they attack us and the populace so indiscriminately?  Why are we the bad guys in the worlds view? (or are we)

How can you on the left, side with those who hate America, given the vicious attacks, the inhuman acts, the torture, the murders that are so common of the MUSLIM EXTREMISTS .

This whole discussion concerning rights is a joke compared to the line of Iraquis police that are lined up and shot in the back of the head.  The mass murders where scores have been executed, the bombings where hundreds are killed or wounded. 

My feelings, if you were picked up because you happened to be in the wrong place at the wrong time and were innocent, what percentage of those would not pick up a weapon and join these extremists, given they were associated with the enemy, by there  presence.  Some would, some would'nt.  Those in military prisons are relatively safe, well fed, minimally tortured if you can really call it torture (compared to what the terrorists do).  some of you may think -- one instance is too much, not in my name, blah blah blah.  I disagree whole heartedly. 

The cia, the clandestine operations of our goverment are essential to our success.  It seems the goal of our left is to disarm this wing of our security force.  They are absolutely necessary for our survival in this war against embedded soldiers who dress as civilians and attack unarmed civilians through out the world.  We are not the enemy, those that are wrongly imprisoned are luckier than those blown up by the extremists, no matter what you call them.

Let our military do its job without interupting.  But wait, that wouldn't work for the left is intent to disrupt the current administration and the whole darn thing is a political hack job anyway.  The debate lies here, just as the left lies there.