Here's the problem with the first principle in the David Cole article:

First, there ought be no double standards in the treatment of citizens and foreign nationals. The due process inquiry balances the individual’s interest in liberty against the government’s interest in security. On both sides of the scale, these interests are the same whether the suspected enemy is a foreign national or a U.S. citizen. Therefore, the procedural guarantees ought not differ.

That is, the member of the Afghan Muhajeen, who has never heard of such quaint notions as due process will be given the same rights as a citizen. Putting aside that our Constitution makes clear protections for citizens and by extension legal resident aliens, treating our fellow countrymen, whatever their race, religion or ethnicity, as valued members of a community is part of our security apparatus. Treating strangers to our community that way is merely a self-indulgent fantasy.

PD,

Then the rights we claim for ourselves, such as due process, are derived from the Constitution and they are circumstantial rights, created rights, rather than universal rights. They are neither inalienable nor endowed by our Creator. We could in theory create an entirely different set of rights that would be equally valid. Others could create their own, equally valid, set of rights.

I always thought that Constitution meant to recognize, articulate and codify universal rights. I never thought that having heard of one's rights was requirement for exercising them, quaint or otherwise.

Mark, I'd add this bit of the Declaration of Independence to consider:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . .

The relationship betweent the government and the governed seeks maximization of these rights, understanding that without the security of the Government, these rights would be meaningless. Khalid Sheikh Mohammed is a stranger to these arrangements.

PD,

To secure them, yes. But not to deny them.
The government derives its powers from our consent, but are we consenting to give the government extra powers over strangers, powers beyond that which we grant it to hold over ourselves? From where would our right to do this emerge?

If we are not required to accord strangers to our community the same rights as ourselves, what is to stop us from telling the police not to protect tourists? Indeed, what is to stop us from robbing tourists outright, as a matter of policy? Aside from mere practical consequences, is there anything to prevent us denying any Constitutionally-protected rights to non-citizens?

I would continue to argue that we claim these rights based upon the belief that they are universal in their nature and because of that we invest the government with the power to protect them.

I cannot see the basis for the belief that our government should deny basic human rights, such as due process, which form the foundation of our government, to all individuals, other than it is expedient to do so. It would seem to reduce the origin of our rights to mere circumstance.

mark,

The mention of universal rights is from The Declaration of Independence, NOT the constitution.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

But the people who said that believed in and practiced capital punishment, would throw people in jail from braking the law, etc. So, there are circumstances under which any of even those things might be set aside. Circumstances under which they have been, historically, from the civil war to WW1 and WW2. Habeas Corpus has been abolished in America's past, and it was legal to do so. And the Constitution and laws of the United States are meant to define those distinctions.

You're right, the constitution is a founding pact among citizens, designed to create a free and self-sustaining republic. It starts "We, the people, in order to form a more perfect union..." for a reason. It comes from the people, and its aimed at a union - a compact among participants. Its principles are derived from those inalienable rights, and from human experience (vid. Federalist Papers). They are, in the end, a deeper form of agreement that defines America. Which is why one trifles with them at the nation's peril.

No, this does not mean that any other set of rights is inherently valid. And trifling with America's constitution has other consequences in America. Back to the Declaration of Independence:

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The People's safety and happiness, as in "we, the people" of the United States. Not the world's.

So, if the US government wants to listen in on Chinese military installations, it does not need a wiretap. If it wants to attack a Taliban hideout in Afghanistan, or an al-Qaeda stronghold in Mosul, or a factory in Sudan, it doesn't need a search warrant from a US judge.

I trust we can agree on the preceding paragraph. If not, we have a much deeper disagreement and should address that instead.

The question mark is asking is whether these constitutional rules should apply to people captured in battle, in a manner that supersedes all treaties and other arrangements (which are mere laws, hence subordinate to the constitution) that the USA has chosen as decisions of statecraft and foreign policy.

I'm with PD Shaw. Giving Khalid Sheikh Mohammed, captured in Pakistan after perpetrating unlawful acts of war, a civil trial like OJ with all the guarantees of an American citizen, where sources and intelligence must be disclosed... that's insane. And the attempted practice of it on any significant scale will reveal its insanity. Swiftly. Those who are cheering for the other side, of course, will find it a great idea, that helps them track down the disloyal in our enemies' ranks, teaches them how to plan their next acts of war with more secrecy, and sets some of their key people free.

This is war, not policing Boston - and yes, there is a vast and legitimate difference that goes to the core of what it means to be a citizen, and what it means to be part of America. Neither are trivial things, which is why neither is carelessly given away unconditionally. And the difference has been present throughout America's history.

German POWs had rights when they were held in POW camps, but they were rights derived from treaty, not from the US constitution. They were captured, not arrested. They are not entitled to Miranda rights, no reason is required for their detention other than capture in war, and there is no limit on holding them except "end of hostilities".

The mistake of holding ethnically Japanese Americans under similar POW-type conditions is precisely that they were citizens, whereas the Japanese soldiers were not. They were owed something the Japanese soldiers were NOT owed. Arguing that the constitution should be applied unconditionally to anyone in the world (implicitly, including the Japanese soldiers) devalues that critical distinction.

al-Qaeda's terorists aren't even at the moral and legal level of the Japanese soldiers, of course. They're unlawful combatants who violate the most basic laws of war as a matter of routine, and hostes humani generis (enemies of all humanity). Those can, and should, be shot summarily on the battlefield as war criminals, following a traditional drumhead trial. It's the exceptions to that which are the expediency, not the other way round.

If America chooses to undertake the expediency of capture, for whatever reason, the Geneva Conventions as currently written still confer certain very limited rights upon even unlawful combatants. Those agreements, designed from painful experience to separate military from civilian actors in wartime, are now having the opposite effect, and I would argue need to be revisited and re-written. Meanwhile, the portions signed by the USA are in effect.

And we can go on to argue about those treaty rules, and how they should be applied. But arguing for the American constitution as the bar is ridiculous to me.

To me, Guantanamo Bay exemplifies the folly of not declaring war on al-Qaeda and its affiliates right from the start, as was done with the Barbary Pirates, and stating up front that they would be subject to the maximum penalty as unlawful combatants. Much clarity would have been gained, on many fronts.

Joe, I am not arguing that the Constitution be the bar. I am arguing that the underlying principles supporting the Constitution with regard to individuals (not other governments, militaries, institutions, etc. for which there are international laws), be the bar. Due process is a pretty basic right. Holding suspected criminals, terrorists, or enemy combatants--lawful or otherwise-- indefinitely and outside of international law, seems to me to be an abandonment of the basic principles upon which our government and our way of life is founded.

My problem with the current practice and with Guantanamo is that we don't actually know the people being held as terrorists are terrorists. I have no quibble with setting up appropriate tribunals though which to make a judgement, if those tribunals offer some sort of acceptable due process.

I don't really have many problems with most of your comment. I was addressing PD's specific singling out of due process as not necessarily available to non-citizens, which alarms me. I'm not asking that KSM have his day in Brooklyn traffic court.

Mark said:
"Holding suspected criminals, terrorists, or enemy combatants--lawful or otherwise-- indefinitely and outside of international law, seems to me to be an abandonment of the basic principles upon which our government and our way of life is founded."

"International law" is a misnomer, it's really "international treaty". And this paragraph from Joe...

"They were captured, not arrested. They are not entitled to Miranda rights, no reason is required for their detention other than capture in war, and there is no limit on holding them except "end of hostilities"."

...is a pretty good summary of international treaty. So they are not being held "outside of international law". Further, this statement, with your emphasis on individuals:

"I am arguing that the underlying principles supporting the Constitution with regard to individuals (not other governments, militaries, institutions, etc. for which there are international laws), be the bar."

doesn't really make any sense. Enemy soldiers, captured in combat, are individuals. As such, do you suggest they have full Constitutional rights, or does your "militaries" comment exempt them? The former contradicts international treaty. And if it's the latter, you are arguing that unlawful combatants, who are in violation of international treaty, deserve more rights than the soldiers who abide by those treaties are granted by them.

"The government derives its powers from our consent, but are we consenting to give the government extra powers over strangers, powers beyond that which we grant it to hold over ourselves? "

Of course. We always have and we always will. That is what citizenship means.

Think about what you are implying. Should the government have the right to search luggage at the borders without probable cause? How exactly would spying on our enemies work, would we require wiretap warrants to listen in on Kim Il Jung? What about warfare, how can you go to war even in principle without granting the government 'extra powers' over strangers?

Your utopian concepts are nice in theory, but completely and utterly unworkable in practice. As the ad absurdum examples show, we ARE always going to differentiate foreigners and citizens. Its only a question of degrees. We can clearly argue over what is appropriate and what isn't, but on our terms. Short of a one-world government, its always going to be that way.

mark, do you believe that Khalid Sheikh Mohammed should have been Mirandized before being taken into custodial detention? That's what it means to give foreign nationals the same rights as citizens.

But if I understand David Cole correctly, his purpose in procedural equivalence is to provide a framwork for reducing the due process rights of both citizen and foreign nationals in specific situations with Congressional and Judicial oversight.

Now its quite possible that a domestic WMD attack might give rise to the creation of a new, smarter set of domestic detainment camps like those used in WWII. But in the aftermath of the SCOTUS decision Boumediene v. Bush, the notion that we can develop a third-way approach between criminal and military procedures is dated. These are no longer policy decisions, they are the decisions to be made by Justice Kennedy.

Joe is right: "Taking fewer prisoners would seem to be one logical outcome to expect." Nobody is going to Gitmo anymore, its purpose has been ended. I don't think one wants to craft elaborate procedures for a specific problem.

Furthermore, all of this extends because of the abandonment of an ancient and nearly universal international tradition (often codified in law). Combatants not wearing uniforms or not fighting for a legal government entity are sabateurs. Traditionally they would be executed without comment. This is the same issue we see with the Somali pirates. These are enemies of all humanity, traitors to civilization. Once an individual goes to war with civilization, how can he lay claim to its protections?

Ironically, these prisoners could have been tried by a military tribunal after capture and executed all in accordance with international law and treaty. Keeping them alive has created this legal complication.

Whats ironic is that its all academic. Obama isn't going to set these people loose any more than mark would if he were president. Its a convenient flash point against the Bush administration, and we can certainly argue over the prisoner treatment and questioning. What isn't really in debate is whether Khalid Mohammed et al should be handed ten dollars and dropped off in Manhattan with a bus ticket.

My problem with the current practice and with Guantanamo is that we don't actually know the people being held as terrorists are terrorists.

How would one know? This is one of the breakdowns between foreign and domestic issues. Criminal trials are judged by community peers. A crime committed in NYC will have a NYC jury and if the prosecution presents a case that makes no sense to a New Yorker, the defendant will be acquitted. The juror can rely on his/her own experience ("Hey, there had to have been a ton of people on that subway platform at 3:00 p.m.!") The jury can judge the peer.

I can go on about language barriers, availability of witnesses, the inability to take evidence during armed confrontations, the lack of community support.

Eric Posner has made the point that if improving determinations is the issue, then judges should be stationed on the battlefield. It would be the most cost-efficient way to address the evidentiary problems and it would produce the lowest rate of error. We would just need more judges.

Dave,

I think that international law is a widely accepted term to describe a network of treaties between and among nations and, thus, yours is a distinction without a difference; also without relevance to the issue so far as I can tell.

I don't know who the antecedent for "they" is supposed to be in your 4th paragraph. Some prisoners have indeed been held outside international law. Not all detainees held by the US were picked up "on the battlefield," "during combat," or were held at Guantanamo.

My emphasis on individual rights was a direct response to Joe K.'s list that began with Chinese military installations.

Again, I am not suggesting full Constitutional rights for non-citizens (I'm not expecting them to be allowed to vote, e.g.). I am suggesting basic fundamental rights that include due process.

you are arguing that unlawful combatants, who are in violation of international treaty, deserve more rights than the soldiers who abide by those treaties are granted by them.

No, I'm not. I'm arguing for a process to determine whether or not that person is in fact an unlawful combatant. Declaring an individual an unlawful combatant, in my view, doesn't necessarily make that individual an unlawful combatant. This has been my point.

"I am suggesting basic fundamental rights that include due process."

Mark, do you think every POW should have the right to council and a mandatory appearance before a court or tribunal?

How does that work in a conventional war with hundreds of thousands of prisoners?

PD

How would one know?

Presumably, someone at least thinks there is a reason to hold a particular individual as a terrorist. Presumably, people are not being held as terrorists at random. I am assuming there is some sort of rationale behind the choice of who to detain, some sort of evidence. There ought to be an impartial tribunal who can weigh the validity of the case. It needn't be a jury of peers. It needn't be a US civil trial. It should be a process that at least passes a basic smell test, however.

You would know better, but I believe I am in line with SCOTUS decisions on this matter.

Mark B.

We aren't talking about POWs, whose treatment and detention is covered by various treaties we have signed. We are talking about 2 things: 1) the abstract issue of whether basic rights should be extended to non-citizens as a matter of principle; 2) whether we should able to designate and detain an individual as an unlawful combatant without presenting any evidence to back up that claim.

Isn't that what's happening now?

It's not exactly a simple matter regardless. Ok, Mike the Marine testifies that Terrorist X raised a rifle at him and fired a shot. Terrorist X says he didnt. He said/He said. Physical evidence and potential witnesses are thousands of miles away. Do you hold him?

Sheesh, what, did'ya all go to the John Yoo School of Justice or something?

"We aren't talking about POWs, whose treatment and detention is covered by various treaties we have signed."

My point is you are providing more basic protections for unlawful combatants. If you classify the type of due process you are suggesting as a basic human right, how can any international treaty abrogate that? Its either universal or its not.

If i have the fundamental human right to due process, i should get a day in front of some type of court to explain i'm not really a nazi, i was just dressed up for halloween (or whatever). Just because the Germans signed the GCs doesnt strip me of my natural rights, correct?

Mark,

A process (aka trial) to determine the status of someone captured as an unlawful combatant would be a right not afforded to a soldier captured in uniform. Thus, you ARE arguing that unlawful combatants should be given more rights than those granted by the very treaties they violate.

Also, someone's status as an unlawful combatants is determined by the circumstances of their capture. It's a status, not an accusation to be proven.

Mark B.,

Correct. Which is why we held the Nuremberg Trials. I'm not sure if anyone used the halloween defense, though.

People are stripped of their natural rights all the time. We believe that can be done if due process has been accorded.

I'm not prepared to take King George's word that so-and-so belongs in prison indefinitely.

But you are skiring the question. Hundreds of thousands of POWs are routinely rounded up in war and held indefinately. Do they lose their natural rights just because they are covered against abuse under GCs? Isnt each entitled to a day in court for the military to prove they are indeed lawful combatants subject to retention?

Nuremburg really doesn't fit here. As Joe mentioned early on, "indefinitely" is defined as until "end of hostilities". During WWII, any captured Germans were held indefinitely, until the war ended. AFTER the war, they were either returned to Germany, or trials were held to justify further detention. So when we withdraw from Iraq, we must either turn them over to Iraq, or hold trials if we wish to detain them further. Until then, they are POWs.

"Mr. Goldsmith notes that Mr. Obama is in a position to end the acrimony and strike a prudent way forward. "The single best thing about the election of Obama," he says, "may be that we now have a chance to view the terror threat without the distorting lens of Bush hatred."

Which is another way of saying that the best path to a bi-partisan approach to the war is to elect a Democrat because only then will the media and the Democrats support the country. There's no worry about Republicans crippling/bashing the country and whipping up anti-Americanism around the world for partisan gain just because the president has a D next to his name.

Yes, it is, andrew. Which is why it's an indictment.

I'd say mark has a point re: limits on indefinite detention, but I see it in much narrower terms.

An American citizen, even one captured on the battlefield a la "Taliban John" Walker, should be entitled to all of the constitutional protections that citizenship confers.

The same would be true by definition for legal residents arrested in the USA, since then it is an arrest not a military operation.

Citizens should also not be POWs - but they might be tried for the constitutionally-defined capital crime of treason, something you can't do to non-citizens.

To me, the only barriers to killing members of al-Qaeda and their ilk abroad, or capturing non-citizens associated with them and detaining them for the duration of the conflict, are those of statecraft and war policy.

Signed treaties may stipulate certain kinds of treatment, and their interpretation can be argued in a court. But full constitutional protection as if they were American citizens does strike me as obscene.

Unlawful combatants have the right to a trial in which they may receive the death penalty. That's a ‘right’ that lawful POWs don't have. Something tells me the POWs are getting the better part of the deal.

The Bush Administration has tried to play mix-and-match with legal procedures, with the one overriding goal of establishing a doctrine of Executive Omnipotence, answering to no one. The legerdemain required to sustain this leads to counterfactual assertions, for example, "Also, someone's status as an unlawful combatants is determined by the circumstances of their capture. It's a status, not an accusation to be proven."

Let's take al-Marri. His capture took place in an Illinois apartment building, right? Padilla, that was an airport. Khalid Sheikh Mohammed was rousted out of his own bed. You really don't want to argue that unlawful combatants must be captured in flagrante, because that doesn't describe many (most? nearly all?) of the detainees.

All I know is what I read in the Constitution, and it starts out "We the People of the United States...."

It does not say "We are the world....".

"An American citizen, even one captured on the battlefield a la "Taliban John" Walker, should be entitled to all of the constitutional protections that citizenship confers."

But that dodges the practical point--what would prevent enemy combatants, say for example the million German POWs of World War II, from claiming that they were "American citizens" entitled to these protections?

By any construct derived from the first paragraph above, they'd be entitled to a hearing (more exactly, a million hearings) to determine their citizenship.

We can see with hindsight that Hitler fought WWII the wrong way. What he should have done was enlist the ACLU and had our whole war effort bogged down by millions of hearings and appeals. Instead of 10 million soldiers fighting the enemy, we'd have 10 million judges, lawyers, and bailiffs endlessly litigating.

Catch-and-release doesn't work very well with fish. Why, then, should we apply it to people that want to kill us? As a matter of practicality, individual trial with lawyers and witnesses and judges simply does not work well when you have hundreds of prisoners, let alone thousands or hundreds of thousands. After the trials come the appeals, over dragging substandard lawyers and judges into the process to supply the needed seats-on-the-bench.

Do not let the perfect be the enemy of the good. If the 'give them all citizens' rights' people have their way, the choice of fates for an enemy combatant will be between killing them on the battlefield, or setting them free in our midst. I know which I'd prefer.

Do you, Mark, suggest we give enemy combatants the full panoply of rights, up to and including the right to keep and bear arms? While you might, you'd probably be shouted down. Many on the left are trying to take away citizens' right to keep and bear arms.

Be sensible, and try to find some process that might work better on a wholesale level. Applying retail legalism to a disorganized anarchist army is not practical, and won't be no matter how long you hold your breath.

To mark...

I think you lack a complete understanding of really any laws across the world... I also think its sad that you rally to protect terrorists granting them more rights then POWs and US citizens. I also find it sad that you seem to only care about talking points made from nutjob left wingers.

First did you know their are 1000s of US citizens imprisoned across the world who didn't get a fair trial(some didn't get a trial at all)... They are not given even basic human rights(and I'll define what basic human rights are)... Where are the cries about them... none only silence but yet throw a few of the left's allies/pawns in gimto and the leftist freak out...(and yes most in gitmo are leftist allies/pawns)

Besides the fact the left couldn't care less about human rights or about US citizens(both of which are proven on a daily basis). We see them actively trying to paint soldiers as terrorists.

This is done by attempting to give them rights most of all under the pretext of the Geneva Conventions. This is a backdoor attempt to paint soldiers as terrorist(which is what leftist believe soldiers are). The Geneva Conventions are very clear in what is legally allowed to be called and POW... to grant rights/protections to "terrorists" is a direct violation of the Geneva Conventions.(which once again is what the left wishes to do).

As stated before their is no such thing as international law... thats a fiction created by ppl trying to push an agenda. While I wholly approve of even terrorist scum getting basic humans rights... thats it. You seem to not understand what basic human rights are however. US citizens/US rights are not "basic human rights"... while it would be nice if they were unless you plan on invading pretty much every country in the world(because no one has more rights then the US... a classic case is the fact that in europe theirs no such thing as free speech... it doesn't exist)

Basic humans rights come down to this.

1. You get fair trial... A fair trial doesn't include a jury or a lawyer for you(those are US rights)
2. You are held in reasonable conditions... that includes basic food(bread and water is fine as long as it meets the daily needs), You get basic living conditions(this doesn't mean you get to go outside or have cable TV, etc).
3. Their are a few other minor things however the above 2 are the most straight foreword without getting into some insanely technical law issues.

Once you get above that your talking about POW and US citizens rights... neither of which should be given to those that aren't US citizens or POWs.

The Geneva Conventions in a two formed document... while it lays out what the rights of POWs are... and civs... it also lays out the right of a government to do pretty much whatever they want to ppl who don't fall into those group... Under the Geneva Conventions its perfectly legal to torture ppl... in fact the Geneva Conventions in many respects was written to allow torture/other actions and make it legal and justifiable. This is in some ways the paradox of what the Geneva Conventions are.

Its hard to take seriously those that complain about gitmo yet they never have a problem with the actions taken by say saddam... They never have a problem when actions of another country when it effects a US citizen and they are truly denied even basic human rights... If your going to apply a "standard of action" then apply it to everyone...(which isn't happening)

This is because many have an agenda and that agenda is both to devalue US rights and to empower those who oppose those very rights. Until such a time that those who take this view point are willing to apply it evenly(not just to benefit their terrorist friends) its really hard to take it seriously.

When a cop shoots a criminal, even if that criminal was shooting at the cops, there is an inquiry to determine whether the shooting was justified. If the inquiry finds it was not, the cop is then fired and possibly prosecuted.

Could a city make a "War on Crime" law that would remove this procedure? Clearly not, this would be a violation of the Constitutional rights of all citizens in that city, if cops can just shoot criminals when they see them committing crimes.

I shudder to think of the massive injustice perpetrated on June 6, 1944, when American soldiers killed thousands of Germans on the beaches of Normandy. Not one inquiry was held to determine how many uniformed German soldiers were actually engaged in hostilities when they were killed by American soldiers. Apparently they thought that holding a rifle and being in uniform was evidence enough, and there was no tribunal to evaluate who was actually at war with Americans and who was it.

My point is this: that soldiers if can KILL combatants, in combat, without any procedures, and not violate their rights, then it seems odd that capturing them, in combat, and holding them afterward, without any procedures, is a huge violation of their rights.

Goldsmith must have his head in the clouds. The reason that the left hates Bush is because he prosecuted the Iraq war. How does Goldsmith propose that we have a debate, presumably with real people defending the Iraq war, without their receiving the same animus that the left directed at Bush?

The left does not want a debate. They are not interested in the free exchange of ideas. They want victory for their side, and the principles of democracy be damned.

Oh, the other reason they hate Bush is that he won two elections, thus denying them their rightful place at the table, or so they think.

If the left thinks that the only time we can have meaningful debate is when a Democrat is elected, then they are going to be in for a surprise.

A series of OJ-type trial farces, followed by release on American soil, may well wind up giving the left one of those "careful what you wish for" moments.

The next time the Left has second thoughts about its actions will also be the first. Did the Left reconsider its unthinking, knee-jerk opposition to the Vietnam War in the wake of the genocide that followed the US retreat? No - it sought to lay the blame on Nixon, Kissinger, the "military-industrial complex" - anything and anyone that could possibly deflect attention from its massive failure.

Ellen et al,

Do you, Mark, suggest we give enemy combatants the full panoply of rights, up to and including the right to keep and bear arms? While you might, you'd probably be shouted down.

In the unlikely event that anyone is still interested in the discussion, I'll let the above statement stand as a representative of the host of like-minded opinions expressed and directed my way since the end of the week.

As I said a couple of times before, though apparently not loudly enough, I am NOT suggesting full Constitutional rights be granted to non-US citizens suspected as terrorists. Let me repeat that: I am NOT suggesting full Constitutional rights be granted to non-US citizens suspected as terrorists. I now realize how much fun it must be to think--or to pretend to think--I was suggesting such a thing as it allowed an opportunity to sling those ever-so sharp arrows.

Initially, we were talking about due process. I maintain it is a pre-Constitutional right. That is, a founding principle existing before and outside the Constitution and upon which the Constitution is, in part, based. Some rights we believe to be---or I thought we believed to be--universal. Those who founded our country believed them to exist prior to our country--long before there were any US Citizens to whom those rights could be limited. Therefor, I do not think it peculiar to assert that they should be afforded to all people. There are, of course, legitimate ways of denying those rights to individuals who, after due process, are found to have done something wrong.

My point is not to extend civil niceties to terrorists or criminals. My question has been, absent due process, how do we know they are terrorists. Because Bush says so? That is insufficient for me. The idea that we can detain till the end of hostilities doesn't work well when there is no entity to agree that hostilities have ended. In the War on Terror, "terror" is not going to sign a truce or surrender. "End of hostilities" is such a subjective situation that has no useful meaning.

robotech master, I am very sorry that I made you sad.

Person of Choler,

All I know is what I read in the Constitution

Then you might want to branch out a little bit. As wonderful a document as it is, the Constitution probably shouldn't be the only source of all your knowledge.

Dear mark... once again I see pie in the sky fantasy...

You say due-process... however what you mean is US citizens version of rights of due process... once again trying to extend US citizen rights to non-citizens/terrorists.

If you drop your argument of US version of due-process/rights you are left with due-process...

All gitmo ppl have had due-process... They were caught on a battlefield and/or in action that was deemed by the soldiers who captured as a problem... then upon further DUE PROCESS they decided under the facts at hand they need to be jailed...thats due process...(unless your arguing that the soldiers are just randomly picking ppl out for no reason and throwing them in gitmo then I can see that argument)

THAT IS DUE PROCESS.... once you start talking trials and legal BS... your not talking due process your talking US citizens rights to due process and the issues that come with that...

Once again I don't see how you are NOT arguing that these ppl must be extended the RIGHTS OF US CITIZENS/US CITIZENS VERSION OF DUE PROCESS.

mark:

Why no due process for people killed on the battlefield? Is death not a more grevious breach of human rights than detention?

Those who argue that even mere detention of combatants must require due process, will eventually argue that combat does as well, and soldiers in war will be subject to the same legal scrutiny that police are at home.

The Geneva Conventions allow POWS to be detained INDEFINITELY without any process whatever. They cannot be punished for crimes without due process, but they are designated POWS and detained as such on the government's say-so.

mark, do you have a problem with that? Was every German captured on the battlefield and held until the peace denied due process?

Why do you think terrorists should get more process than lawful combatants? Lawful combatants require no process whatever to be detained indefinitely.

robotech,

You say due-process... however what you mean is US citizens version of rights of due process

Since you think you what I mean better than I do, I'll let you continue the discussion by yourself. You can make my arguments and then you can refute them. Have fun.

Gabriel,

_Why do you think terrorists should get more process than lawful combatants? _

I don't think they should. But how do you know they are terrorists? Is mere accusation enough? Not for me. That's my point. If it is enough for you, then we just disagree.

We're not talking about POWs. Procedures regarding POWs are outlined in the Geneva Conventions. I'm pretty satisfied with that situation.

Dear mark I see you confirm what I posted as fact and that you do indeed want US citizen rights extended to their fullest to these ppl... from now on please stop saying other wise... its disgraceful.

mark: you are dodging the issue.

How do you know a POW is a POW? Just George Bush's say-so.

How do you know a German in a camp wasn't rounded up in Duluth instead of in Normandy like the government claims? What commission determines which of the detainees were really soldiers?

You didn't think your position through, you see. You think unlawful combatants should get a special tribunal to decide if they are combatants, and you think POWs deserve no such thing.

I am not aware of anyone suggesting trials for battlefield captures, as that phrase was historically understood. If this somehow comes about, it will be the work of the Bush Administration, which claims that in the War on Terror the battlefield is everywhere, so that, for example, detainees wherever and however captured may be held, like POWs, indefinitely. However, since these detainees were often not captured on a battlefield as traditionally understood, that means not that they are possibly innocent civilians (to be determined by a fair trial), but that they are unlawful combatants not permitted the usual protections of POW status (e.g., the Geneva Convention). Omnipotence requires omniscience.

Faced with this false dichotomy, it's possible that in courts will err on the side of more process; that's what courts do. But if the Bush Clowns hadn't overreached, it wouldn't have happened in the first place.

Under the Geneva Conventions its perfectly legal to torture ppl... in fact the Geneva Conventions in many respects was written to allow torture/other actions and make it legal and justifiable. This is in some ways the paradox of what the Geneva Conventions are.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons [that is, "Persons taking no active part in the hostilities"]: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. [snip]

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Andrew J. Lazarus:

What process is needed to determine whether a "battlefield capture", as you want the term understood, actually happened?

How do you know Cpl Schulz was captured on the in Normandy, as FDR wants you to believe?

Does every POW deserve a tribunal to determine if they are or are not soldiers captured in battle, or is FDR and the Army's word good enough?

And if POWs don't get this tribunal, why do people who shoot at Americans while unencumbered by uniforms?

How do you know a German in a camp wasn't rounded up in Duluth instead of in Normandy like the government claims? What commission determines which of the detainees were really soldiers?

No one has ever explained why, under the Bush rules, they themselves can't be sent to Gitmo—except showing their GOP Contribution Letters.

Generally speaking, legitimate POWs would have no interest in losing their POW status, which would mean they had been guilty of attempted murder and assault.

RIGHT. No captured soldier has ever, or would ever, claim that they are really a civilian and shouldn't be deatined.

No one has ever explained why, under the Bush rules, they themselves can't be sent to Gitmo—except showing their GOP Contribution Letters.

Since I'm not in Afghanistan or Iraq shooting at Americans from a hut full of kids, I'm pretty sure I'm not going to GTMO. Maybe your vacations differ from mine.

I explained it to you before, Gabriel. These tribunals can order the execution of guilty defendants. POWs get a better deal.

AFAIK, there never used to be much question about where Cpl Schultz was captured. Even if he wasn't on the Normandy beach, there was no question that he was in the German Armed Forces. (This holds true for the Quirin defendants, BTW.) If he appeared to be a spy or saboteur, then he got a tribunal (and then he was shot).

Let's deal with the here and now. Obama declares you a terrorist. Now you are incommunicado in Gitmo or in a Navy brig. Happy now? Should this be lawful?

Since I'm not in Afghanistan or Iraq shooting at Americans from a hut full of kids, I'm pretty sure I'm not going to GTMO.

The Bush Administration claimed the right to imprison anyone they deemed a terrorist, wherever they were. You can snigger about this, or you can make an honest attempt to deal with its implications.

The truth is that most of the citizenry do OK under all but the most hideous dictatorships. Whether one believes in the Rule of Law or the Rule of "Bush is OK, he only mistreats bad guys" is what appears to separate us.

AJL, how does Obama "declare" me a terrorist? Does he fill out a form or something?

And would this form not detail the circumstances of my capture, the nature of what I'd done, etc?

Who carries out his order and why would they?

Thing is, nobody is picking Americans up from the streets in America.

What actually happens is, I was in Afghanistan and fingered by one of the locals as having planted a roadside bomb. Maybe I did, or maybe I'm just a harmless goat herder nobody likes, or maybe I'm a stranger and they want to blame me.

But the Army takes me into custody--and THEN Obama declares me a terrorist.

It's not the other way around.

Phantoms of lost liberty, indeed.

When Obama, or whoever, declares me a terrorist and then tells the Army to go get me, then maybe there is the potential for overreach.

The Bush Administration claimed the right to imprison anyone they deemed a terrorist, wherever they were.

No one would make such a sweeping statement without some kind of citation, would they? Oh, they would.

You know, supposedly there used to be a law that said you could beat your wife with a stick no thicker than your thumb. Everyone has heard of this law--yet no one has found it in a legal code.

Now you are incommunicado in Gitmo...

Except for visits from the International Red Cross.

link

[NM: Please don't post bare URLs; they mess up Movable Type's formatting. Guidelines for posting URLs are displayed in the text immediately above the comment entry fields. Fixed for you, this time.]

Thing is, nobody is picking Americans up from the streets in America.

Incidentally, there was a form used to declare Padilla a terrorist. PDF. Note that it makes only the vague accusations that Padilla is a terrorist and an Al Qaeda affiliate.

I think you're a little behind on the facts.

mark: you are dodging the issue. How do you know a POW is a POW?

Go back and read through the thread. POWs are not the issue. I'm not dodging the issue. You are changing the subject.

I recommend you read comments #1 to #6. That about sums things up. Everything else is repetition. I regret having re-entered the fray.

But, Gabe, remember, Bush and Rumsfeld were able to discern all the way from DC that the Gitmo detainees were not entitled to the Geneva Convention. Now you send me a link that the GC provides for visits from the Red Cross, whence, not incommunicado. Which is it? GC applies or GC doesn't?? You are arguing with yourself.

AJL, where were Quirin et al. picked up?

If you want to accuse Bush of making up this terrorism nonsense up in order to arrest brown people for no reason--since none of Bush's 150 million American critics are being detained--please make that case. What advantage does the government derive from using the Army to round up nobodies in foreign countries?

If not, if you think that there are just a lot of mistakes being made about who is or who is not a combatant at all, okay, fine, but why do you want to extend process to people who may or may not be unlawful combatants that is not extended to people who may or may not be lawful combatants?

After all, Schulz says he's not a soldier, just some guy tending his garden, but Patton says he was carrying a rifle and wearing a uniform so he needs to be detained. Do we set up special courts to check out everybody's story, or do we grant our fellow citizens in the military the benefit of the doubt?

AJL, you really ought to READ the Geneva Conventions.

The Geneva Conventions apply to everyone, including civilians. They grant POW protections to certain people and deny it to others, known as unlawful combatants. The Detaining Power makes the determination. If they abuse this right, they can be accused of war crimes or something. Pretty simple. There's no contradiction at all.

Of course our government is free to add to the rights of those detained as unlawful combatants under Geneva, and they have by creating tribunals authorized by Congress and allowing Red Cross access, so what's your beef?

Fundamentally, you think this war is imaginary, and WWII wasn't.

Bush and Rumsfeld were able to discern all the way from DC that the Gitmo detainees were not entitled to the Geneva Convention.

No, they didn't. They said that by the standards of the GC these people are unlawful combatants and not entitled to the POW protections mandated by GC. Instead, they are to be treated consistently with what the GC prescibes for unlawful combatants, but with extra rights besides those spelled out in the treaty.

A lot of people choose to express this as "GC doesn't apply to them", but that is nonsense. GC applies to all people in war zones.

To hit rewind to my initial comment (#1), my complaint is with the first principle:

1. that citizens and non-citizens should have the same due process right.

That doesn't mean non-citizens should have no rights. One can imagine a continuum of actors, ranging from citizens to resident aliens, illegal aliens, lawful combatants, illegal combatants.

But nobody seems to pick up on the result of Cole's non-discrimination:

He wants to reduce the rights of citizens. He uses principle #1 to lay the groundwork for a smarter domestic detention policy like that used against Japenese-Americans during WWII.

I agree to this extent, that failing to distinguish between categories of people will likely result in mass detention of U.S. citizens. I differ on it being a good thing.

PD,

I think we can all agree that we shouldn't lower the standard of rights accorded citizens (Cole excepted).

I think we can all agree that non-citizens (of the sort under discussion) shouldn't have identical rights to US citizens.

The disagreement seems to center around 2 things:

1) How far apart (or close) should the 2 sets of rights be;

2) what is the basis -- legal, philosophical or moral -- underpinning the decision of #1.

The Quirin defendants (as you know) were picked up in the USA. First, they did not deny being members of the German Armed Forces, and, second, they got their tribunal. This idea that millions of Germans captured in France would pretend to be tourists if not for George Bush is a fantasy. (Incidentally, the GC provide for detention of civilians in a war zone, so even Farmer Schultz—and there were Farmer Schultzes—could be safely interned until his status was clarified.)

You are nitpicking in my description of Bush and Rumsfeld. As you will. Bush and Rumsfeld discerned all the way from Washington that every single detainee in Gitmo was an unlawful combatant and not entitled to the GC's provisions for lawful combatants. (I repeat, omnipotence requires omniscience.) The standard reading of the GC is that determinations that a detainee was an unlawful combatant could only be made retail, by tribunal, and not wholesale by the President and SecDef. Unfortunately for your argument, your claim that prisoners could not be held incommunicado was based on the Red Cross access required under the GC for lawful POWs, exactly one of the rights Bush and Rumsfeld claimed the detainees did not have. Padilla was not at Gitmo, but he was kept incommunicado. Which is it, again? GC rules, or not?

The reason we have all these tribunals created by Congress is the Bushies have gone 0-for-N at SCOTUS with their Omnipotence arguments, but they persist on the web.

Dear Andrew J. Lazarus citing a UN treaty(which isn't worth the paper its printed on) only shows your massive ignore on this topic.

robotech master, we prize substantive contribution here. If you can't do better than your last post, take off. That was what we call a drive-by, and you're too new here to get much slack for those.

Hey Nortius Maximus... someone who would cite the UN as some kind of law enforcement/legal body/rational actor in justification of ones argument is what we call retarded... Calling someone out on that is hardly a "drive-by" as you put it.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

citing a UN treaty(which isn't worth the paper its printed on) only shows your massive ignore on this topic

What Illinois tells us about the war on terror is that things done for higher principle that don't seem to cost much now, extract high costs in the long run.

Ten years ago, the Illinois House initiated an impeachment inquiry against a sitting Justice on the Supreme Court. While historically the assumption has been that a public official does not have a "due process" right to their job, the attorney for the Justice was able to extract the right to subpoena and cross-examine witnesses during the inquiry. This was done in the context of fairly thin evidentiary issues.

Ten years later, in a much more complex situation, the Governor of Illinois may be able to thwart impeachment with several months of calling witnesses that will plead the Fifth. The public expectation that criminal procedures are the best or fairest means of dealing with non-criminal matters, such as impeachment or war, is exacting heavy tolls.

PD,

No one ever said the rule of law was going to be easy or smooth. Short cuts are tempting when you just know the guy is guilty. But high as the costs might seem to be by taking the long way, I'd wager the costs would be even higher in the long run if we started taking those short cuts.

#60. Please review the Winds of Change comments policy.

One heuristic for a driveby is: a post that looks like it took less time to think about than it did to type. I think your #58 qualifies.

Independent of the validity of your claim about the UN and the concept of international law, a one-sentence dismissal of another poster, calling him ignorant, is not what we try to foster here.

You're new here. We like to see some substance from new posters, not just "Yeah, what he said!" nor "You're a big dummy." After a while, one-liners are more tolerated.

Bring a better game, or play somewhere else.

This is not a request. This is a recommendation.

--Marshal Nortius "Big Tuna" Maximus, acting in that capacity.

A better response but not ones that will help much. First while it does something from the US side of the argument is does nothing about the world side of "citing a UN treaty(which isn't worth the paper its printed on)."(unless of course your going to argue that countries with a long upstanding traditions of humans rights to include but not limited to... china, russia, cuba, saudi arabia, Afghanistan(1987), Along with much of south american and africa... follow this treaty or others in its "style"...)(PS which would provide me with great amusement since Nortius Maximus is arguing just that)

Next on to the US "problem".

link

To quote the only thing that matter for that "The United States has ratified the Convention, but in doing so notified other states parties that “. . . nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”"

Do forgive me but I'm to sober to go running into the gov sties looking for the ratification/bill/paper(later maybe when I'm drunk) and link to it however to include some marks to point out the issue...

Article 6(5) of the International Covenant on Civil and Political Rights ("ICCPR") prohibits the imposition of the death penalty "for crimes committed by persons below eighteen years of age." To preserve the power to execute such juvenile offenders, the US government insisted on a reservation effectively negating this provision.

The reservation reads: "The United States reserves the right, subject to its constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." US Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 102d Congress, 2d Sess in 138 Cong Rec S 4781 (Apr 2, 1992).

Similarly, the US government entered a reservation limiting the conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"). The problem, from the government's perspective, was that Article 16 of the convention precludes not only "cruel and unusual punishments"--the prohibition contained in the Eighth Amendment of the US Constitution--but also "degrading treatment." To avoid any possibility of this provision being interpreted to impose a higher official standard of conduct, the US government adopted a reservation stating that the Torture Convention prohibits no more than the "cruel and unusual punishment" provision of the US Constitution.

US Reservations, Declarations, and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Amend No 3200-3203, 101st Cong, 2d Sess (Oct 27, 1990), in 136 Cong Rec S 17486 (Oct 27, 1990).

which no reservation, declaration or understanding was entered, the US government, first declares that the treaty is "not self-executing," meaning that it has no force of law without so-called implementing legislation.

Anyone with a basic understanding of the UN treaties/UN period... understands that what the UN says a treaties is and what the host countries agree too are often vastly different... and once again a UN treaty isn't worth the paper its printed on...

While the US whites out treaty lines in law/creates loop holes for it to maintain Constitution as much as possible to hold a moral(and legal high ground) in the end anything posted by the UN is meaningless... and unless your willing to go through and look at what the US passed/signed/whited out/created loop holes for the topic is meaningless(once again just like anything that comes out of the UN)

[NM: Bare URL. Fixed for you, this time.]

The go-'round here about "international law" is chiefly this -- that whatever it is, de-facto it's more about customs, promises (real or false), and expectations than national law is [in a non-failed state].

I've been over some key points before. At the risk of being tedious, let's review:

1) "International 'law'" without enforcement is just talk.

2) "International 'law'" with truly effective enforcement over all applicable cases implies a world government with a monopoly on some sorts of force.

3) Absent that monopoly, with only national governments [claiming to] enforce such "law", there will be, in at least some fractious cases, no end to disputes --

-- This is an internal matter! No, it's a crime against humanity! You're destroying the planet! No, we're creating opportunity for two billion former peasants! You're acting lawlessly! Yeah, well, I didn't see you doing anything about those pirates!

What we've got today is a mix of the first and the third case.

What some (here and elsewhere) seem to want is the second.

It is folly to look at any of these and see some other.

For me, I don't think a world government (Option #2) is such a hot idea. The principles actually evident in the operation of the UN and the EU give me little confidence that justice would prevail (not that the US is perfect).

Robotech Master: Please don't post bare URLs. They mess with the formatting of the blog. Recommended format for URLs is displayed above the comment entry fields. Thanks much.

Nort,

What we've got today is a mix of the first and the third case.

I think your third case is really of mix of the first two---or, if you prefer, what we've got today is a mix of all three. You describe the second in absolute terms to make it seem unattractive, but there are many aspects of international law that work quite well with effective enforcement, but without "world government." E.g., Milosevic died in prison as a result of international law with effective enforcement of applicable cases. US withdrawal of steel tariffs following a decision by the WTO is another example--as well an example of effective enforcement without force.

International law works when all parties agree to abide by it, which sometimes happens. It works when one party doesn't but there is an enforcement mechanism, which sometimes happens. The rest of the time, as you say, it's just talk.

It is nice to know that when pressed, Robotech can tell us that the ICAT is not self-executing. What he left out is that Congress enacted anti-torture legislation to match the treaty requirements. The reservations, as you indicate, were about retaining capital punishment, not about torture. Prior to the Bush Administration, the United States was not known for its defense of torture.

Just to anticipate the next argument, yes, that section of the US Code only applies outside the United States. That's because torture is also illegal under state laws about assault, mistreatment of prisoners, federal laws about abuse under color of authority, etc., when practiced within the United States.

Then the treaty is irrelevant, no?

Not if it prompts legislation to create compliance.

Think you missed the part about "degrading treatment."

Also as per your link...

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—(A being the part about torturing ppl)
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

Doesn't say anything about not being able to torture ppl outside the US/US can't torture ppl...

It says if your a US citizen they can't torture you or if you are on US land they can't... which was the whole point of gitmo(also we outsource it now as well... funny too being that its all outsourced to other countries that have signed the "anti-torture" UN BS o well more US jobs lost hehe) to side step that argument(and a huge amount of other problems to include letting them loose on US land should something happen) thus

here in your own link

One could argue how they "define" torture... is assuming and leaves lots of roon to do lots of things.

Let me be clear since we getting into legal BS here... I only approve of torture(and by torture I mean permanent/long term mental or physical damage inflicted on a person) in the rarest of cases dealing with 1000s+ lives on the line.

However on the flip side if your not a POW or a Civ your fair game to have your cheerios pissed in from time to time...

Bonus points if you can tell me the last country the US has a war with that followed the Geneva Conventions pretty closely/ didn't just pay lip service for propaganda purposes to it.

All UN treaties are for the most part irrelevant... thats the only way that the UN can exist... the vast majority of the world is run by petty dictatorships and commie/marxist/etc leadership... they can't conform with the UN rules or else lose control of their country/power(even the US has a hard time sometimes because they are fictional utopia BS... )

To get a good idea of what the UN "is" one only look back at medieval Europe and the Catholic church. The funny thing is that the UN is both less moral and has less power...however its every bit the demagoguery and then some above the church...

(1) the alleged offender is a national of the United States;

The degrading treatment reservation isn't relevant, because we are discussing torture, and torture is far beyond degrading treatment.

When we invaded Iraq, we warned Saddam that failure to treat any prisoners he might take in accordance with the GC would be treated severely. I doubt if his Army was successful enough to provide a meaningful sample size.

Before that, the Germans more-or-less followed the GC with respect to captured Brits and Amis (with the notorious exception of some Jewish POWs). However, if you check out what John McCain said about his time as a guest of the North Vietnamese, while their treatment did not meet GC conditions, they were influenced by the ICRC and he was grateful to their efforts to bring Vietnam into compliance. So I guess it means what "pretty closely" is about.

"Milosevic died in prison as a result of international law with effective enforcement of applicable cases."

Virtually everything about this statement is inaccurate. First off- Milosevic lost his position having lost his standing with the military in the wake of the Kosovo campaign by NATO... a campaign which was in defiance of international law.

Secondly Milosevic was never convicted by the international war crimes tribunal who spent 5 years prosecuting him. He died in prison before a verdict was ever reached. Hardly much of an advertisement for swift and sure justice, especially considering the man represented himself.

Finally the Hague only got ahold of him in the first place because he had grown so despised in Serbia for bringing ruin down on the country and embezzling while he did it. Before that change of attitude getting ahold of the man was impossible.

So in summation, Milosevic's war crimes were only stopped via an illegal armed intervention by NATO, his trial languished for years without result, and only because the free world had the good fortune of the man being a crook and despised at home. Popular war criminals are and will remain safe in their beds no matter how wanted they may be by the international community.

Virtually everything about this statement is inaccurate

Really? Let's see.

Milosevic died. Check.

He died in prison. Check.

As a result of international law. This you seem to dispute, but it may only be because my syntax was vague. I meant that at the time of his death he was in prison as a result of international law, meaning he was held under international law for a trial in an international court (check); not that he died as a result international law (which his supporters would claim).

Your only other potentially relevant dispute about the accuracy of my statement seems to rest on your view that Nato's actions were in violation of international law, and while that is an arguable claim, let's accept it for the sake of argument. It hardly amounts to "virtually everything" about my statement.

Milosevic was turned over to the Hague and was in custody and on-trial when he died. It may not be the best example, but it still works for me as a successful instance of effective international law with enforcement.

The reason AJL would prefer to discuss torture in the context of treaties and not domestic law is that he would prefer to give the Red Cross or Amnesty International a voice in interpreting the vaguaries of the "torture" definition.

Looked at from a domestic standpoint, the Reason and Bush I administration spent a lot of time lobying the Senate to ratify the torture convention on the grounds that it didn't change anything -- it was a symbolic gesture. The U.S. intended to maintain use of coercive interrogation techniques as it believed at the time of ratification that torture was an extreme act and definition of "torture" could only be employed narrowly.

When the Senate ratified, it used the treaty as a pretext to extend American law to foreign jurisdiction. This anti-torture law has only been applied to Chuckie Taylor, Jr., the son of the former leader of Liberia.

It also passed a law prohibiting the repatriation of persons to countries where "torture" (same definition) is likely. Thus the Catch-22: under the international view of "torture," the United States is a criminal, but it cannot release anybody since they are likely to be "tortured."

"I meant that at the time of his death he was in prison as a result of international law, meaning he was held under international law for a trial in an international court (check); not that he died as a result international law (which his supporters would claim)."

He would have almost have certainly died in prison in Serbia where he had been indicted and arrested on corruption charges. He would have likely been convicted by then as well. How did dragging out a show trial at the Hague without result make a good case for international law?

I agree, he is dead.

Mark, in this instance I prefer the certainty of the one over the near-certainty of the other. In any event, go back and look at the context in which I first referred to it. I wasn't using it as an example of a "good" case, just as an existing one.

Off-thread but to your point, I wouldn't argue it's a perfect system. The criminal justice system in Iraq right now is flawed. The hope is that in time, it will improve. It took centuries to wipe out the slave trade. Civilization spreads slowly. I wouldn't dump international law just yet on the grounds that it produces too little fruit.

Andrew J. Lazarus I don't understand your post... unless your saying that the US/US personal are responsible for 9/11 or your somehow "blaming" our foreign policy thus in turn its a "US national's fault" how are you applying your argument.

Also to quote since you missed it _It says if your a US citizen they can't torture you or _

As PD has stated "torture" is very much in the eye of the beholder...

Which once again get back to mark... who doesn't know the difference between US citizens rights/US due process vs basic human rights and due process...

And you would be correct in germany WW2... One of the wonderful things that many ppl seem to forget is that the likelihood of the US engaging in warfare with someone that has even minor respect for the GC or any of a host of other treaties/rules of warfare is about 0%....

Unlike the fantasy of the UN treaties. The GC were written to protect the honorable and give moral high ground to those that follow them...(also encouragement to follow them) Unlike the UN whos treaties are designed to give moral high ground to everyone no matter what(most of all those who don't follow them)... and to use that moral high ground as propaganda. They also are designed by in large to benefit petty dictators and so forth by limiting actions that a country like the US could use against them(even though they are having those actions used often against the US).

The reason AJL would prefer to discuss torture in the context of treaties and not domestic law is that he would prefer to give the Red Cross or Amnesty International a voice in interpreting the vaguaries of the "torture" definition.

The reason I am discussing torture in the context of treaties is that prohibition of torture is something we expect of all states. Domestic law is something we impose only on ourselves, and on some matters (e.g., whether to drive on the right or the left), we have no particular mission to bring our standards to the world.

The torture issue is not tied to 9/11. There is reason to suspect that US Nationals have been complicit in torture, at Guantanamo and elsewhere. Those acts, if they took place, were unlawful, under both international and domestic law.

I am not impressed with the argument that we should stop adhering to the GC because our likely enemies will not. As Churchill said, in quite a different context, "If one needs kill a man, it costs nothing to be polite."

To Andrew J. Lazarus history is not your friend to say the least with this statement

"Torture was not seen as a vague category, until the Bush Administration made it so, in order to practice it. We found nothing too vague about it when done to us, say, by the Japanese."

As for "I am not impressed with the argument that we should stop adhering to the GC because our likely enemies will not. As Churchill said, in quite a different context, "If one needs kill a man, it costs nothing to be polite."

Its a nice twist of words but hardly what anyone has stated so far... The GC has rules and regs... of which you seem not to understand. A few of them are to include but not limited too... the enemy must attempt to follow the GC... You can torture(even real torture) the hell out of someone and still adhere to the GC... which was 1 of the key points of the GC was to let ppl torture the hell out of ppl legally and justly...

So, Andrew, you are advocating that we simply (and politely) kill these prisoners instead? That would certainly solve the problem.

AJL: Torture was not seen as a vague category, until the Bush Administration made it so, in order to practice it.

Prior to around 1970, the American Bar Association wrote briefs complaining about the prospect of American citizens being charged with offenses under treaty that satisfied international standards, but were vague under domestic considerations. Times have changed.

Reagain/Bush I told the Senate what "torture" means, and the Senate ratified based upon these arguments, which are nowhere near what liberals argue today.

Liberals, and in some circles I am one, are aware of Reagan/Bush I on this issue. It strikes me that the current crop came of age only in the last ten years.

The reason I am discussing torture in the context of treaties is that prohibition of torture is something we expect of all states.

Not true. An American tortured by a Mexican authority will have his resulting confession read to a jury in this country. Why? Because "due process" does not apply to Mexican authorities -- we don't expect the Mexican police to act based upon our standards even in the execution of an American citizen.

Back to David Cole: American citizens should be treated better by our government than the Mexican government treats its citizens.

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

Kathy: spies and such ilk can be executed after a trial. They can't be tortured.

To #85 I already post that please reread the thread...

#86: I am sorry I was not clear enough. Your description of the GC in this thread is, shall we say, non-standard, and I am asking you to justify it in the teeth of the plain reading of Common Article 3.

Of whom, in your opinion, does the GC authorize legal and just torture, and which article does so? No one else has found it, and given the sorry history of recent warfare, it isn't for lack of trying.

How about reading a little farther down into what is called Article 4....

Andrew,

I think robotech master has found a loophole in the GCs. Apparently, torture of active enemy soldiers not in your power is not prohibited. No ordinary robotech, he.

I assume you mean Article 4 of the Fourth GC (they differ).

The usual reading is that Articles 1-3, which appear in all the GC, are of universal application and the prohibition of torture in Article 3 holds in all cases whatsoever. The protections from Article 4 of 4GC do not apply to those not enumerated in Article 4, except for Part II, which is also universal.

I don't know how much clearer it can be

"Nationals of a State which is not bound by the Convention are not protected by it."

You'll note it doesn't say signed or ratified, etc... to cut off your next argument...

I'll try one more time: "protected person", as defined in the 3GC and 4GC, is not necessary for the application of Common Article 3, which precedes its definition. Article 3 is in all of the GC with the intention that it apply to all persons not actively taking part in hostilities, whether they are nationals of a signatory state, etc. The operative class in Article 3 is "[p]ersons taking no active part in the hostilities", which would even include terrorists, if they have been detained and disarmed. Protected persons, whether civilians (4GC) or lawful POWs (3GC), are entitled to significantly greater protections, as outlined in the remainder of the treaties.

Can you find any recognized authority that agrees the GC actually authorizes the use of torture on unlawful combatants? No. Even the Bush Administration dared not make this claim, preferring to quibble about what constitutes torture.

Can you find any recognized authority that agrees the Article 3 is in all of the GC with the intention that it apply to all persons......

I will go back and post again...

Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties,

and again

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who
are parties there to shall remain bound by it in their mutual relations.(meaning other guy is up a creek) They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The GC is very very clear in the matter... you don't sign it/ more importantly apply it your open game... their is no middle ground on the matter....

robotech, you continue to miss my point (on purpose, I guess). Why do most of the articles, subsequent to Article 3, refer to a "protected person", but Article 3 does not use the word protected?

The reason is that Article 3 applies to armed conflict without exception.

The words "each Party" mark the great progress which the passage of a few years had brought about in international law. Until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which need not even represent a legal entity capable of undertaking international obligations. The obligation is absolute for each of the Parties. The reciprocity clause, which appeared in the Stockholm draft of the Fourth Convention, has been deliberately dropped.

Thats all well in good... but it says nothing about article 2 in that little run up... plus the ICRC has no legal authority to dictate to nations how treaties they signed/ratify/apply...

You do understand that the US never ratified this Protocol... you also understand this was written in 1977..

Hey PD what do you think checkmate in 4 exchanges... I've already picked out my checkmate post... and its insanely obnoxious lol.

OK... throat clearing noise.

Robotech master, this is formal warning that "insanely obnoxious" behavior, if any Marshal agrees with that evaluation, is grounds for at least a tempban. Or were you just being figurative there?

Also, all the dot dot dot ellipsis stuff is pretty grating. Can't you please just post complete well-formed sentences? How hard can that be? (This is not IRC......[sic])

Robotech, I wouldn't mind the obnoxiousness if at least you were accurate. You aren't. The Commentaries are not to the Additional Protocols (unless I mis-linked); there are commentaries to each of the GC. [Checked my link: it isn't to the Addl Protocols, it's to 4GC.] Now, they aren't part of the text of the treaty, but insofar as they recount the history, they provide insight into how to read the underlying document.

Let's assume that you are a programmer, from your handle. Why do you suppose that Bjarne Stroustrup wrote an "Annotated Reference Manual"? Because the annotations made clear what was in the C++ standard itself.

Your exegetical methods, Robotech, remind me of "tax protesters" who claim their unique reading of the tax code checkmates the IRS—right up until the moment the US Marshals take them away.

The IRS can enforce the income tax. The GC prohibits torture, absolutely.

To turn to PD Shaw.

Waterboarding was considered torture in the 1970s, when the Khmer Rouge did it; in the 1940s when the Japanese did it [we convicted Japanese for torturing POWs]; in the 1930s when Mississippi sheriffs did it; and in the 1900s when our army did it in the Philippines. Until the Bush Administration, there was never a question. It is "conservatives" who are not arguing what they used to, and if the Pied Piper of a Secret Undisclosed Location told them stretchboarding wasn't torture, the rats who follow him would sing that chorus too.

(Of course, the pro-torture crowd also claim that their atrocious acts are justified because of the terrible plots they foil with it.)

AJL: I made a very specific claim, that I can substantiate later, but I don't currently have the time.

When the CAT was ratified, internal White House memoranda and Senate testimony indicated the belief that "torture" as defined in the CAT was vague. In particular, the White House was concerned about the mental pain and suffering angle. They drafted their own definition that human rights organizations at the time felt watered down "torture." These definitions, subsequently employed in the criminal statute, either resolved the vagueness issue, made it worse or did nothing. Yoo picked up on these two main threads from the ratification process: vagueness and minimization. He didn't invent the vagueness issue, neither did Bush II/Cheney.

And I do believe the term is vague. In a domestic context, any unwanted touching is a battery. We assume a large degree of personal autonomy. The "torture" definition assumes the legality of some level of unwanted contact, coercion and mental pressure, which if "severe" is "torture." In contrast, the current Field Manual specifically prohibits "waterboarding." Now is that so hard to do?

Some of the background is in this law review article, which is quite good:

Torture Nation

From the abstract:

I illustrate some of the ways in which past practice and mainstream legal doctrine provide a solid foundation for the abuses of the war on terror. The first part of this essay traces some of the history of torture and related forms of abuse in U.S. foreign policy, followed by a description of the law and practice of police and prison violence, and concluding with immigration. Part Two examines the interaction of U.S. and international law in the context of torture, primarily through a detailed examination of U.S. ratification of the Convention Against Torture and the International Covenant on Civil and Political Rights. Part Three concludes the essay by drawing explicit connections between these precedents and the perceived excesses of the war on terror.

Dear Nortius Maximus,

I accept you kind offer to become my personal secretary. Its a genres offer being unless lowly peasants don't have a edit function.

PS I talk this way... because it annoys ppl... named Nortius Maximus...

[NM: We have a winner in the violations-of-civility-by-a-newcomer contest!

Your prize is a two-week vacation. Further posts by you before January 1 2009 will be deleted.]

wow

Just because the diplomat claims immunity doesn't mean some street cop can't arrest him... nor does it mean they can't throw him in jail, beat his ***, bring him to court, find him guilty, lock him up.... It means that a higher group will use force to dictate their own actions...

Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of this title, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.

I think, BTW, that you will find, in the case of Nortius Maximus (not generally a sympathizer of my multilateralist, defeatist, far-leftist PoV), the answer will soon be 'Yes!'.

As far as the point about the GC getting lost here: Common Article 3 is an exception, as it states in its own language, and as is clear from the commentaries. Its application is universal. Repeating clauses about the applicability of the other articles can't change that.

#101: OK, Robotech Master. This is your final warning. Take two weeks off to think about things, and determine if this place has enough value to you for you to act like an adult, and perhaps learn how to spell simple words like "generous".

Further posts by you in that period of temporary ban will be deleted out of hand.

Come back January 1st, stay civil, and you'll be welcome. Repeat the behavior or post before that time, and you'll be permabanned.

Happy holidays,

Marshal Nortius "Big Tuna" Maximus, acting in that capacity

[NM: You're now permabanned here. If you wish to appeal, take it up after January first with Armed Liberal or Joe Katzman, both of whom have their email addresses listed in the right hand margin.]

I'd correct "Its application is universal" to say its application is claimed to be universal.

But that's just me doing my cynical skeptical jaundiced quasi-ex-libertarian thing. AJL and the World Ungovernment can keep trying to bell that cat. :)

Sometime we really ought to have a[nother?] torture thread. But this isn't that. OK? OK.

OT: I'm still working on the Exceptionalism toppost, btw. But it might not show up until after Winds moves to the new (planned) substrate.

Perhaps it should be resolved that Obama's election did not dispense with the old arguments.