Justices say Bush went too far at Guantanamo

Are al Qaeda Fighters Prisoners of War protected by the Geneva Convention?

First, what does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.

The criteria are: "(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; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.

Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."

Thus, al Qaeda members need not be treated as prisoners of war.
 
Moreover, they target civilians
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Actually a time honored tradition of War, much as we detest the methods used by Al Qaeda.
- The Germans bombed London...did they lose Mil Status?
- We bombed Dresden....did we lose Mil Status?
- We dropped the Big One on Hiroshima....you do remember Hiroshima, no?

Rich
 
Not the point, MM.
There's a very fine line between Terrorist, "Guerrila Fighter", "Underground" and Regular Troops in any war. The distinction is generally made by the victor. But the fact remains, other than in the rapidly disappearing venue of Battlefield Clash, civilians are targeted in War. Both sides generally call it "collateral damage" when they're on the giving side and "terrorism" when they're on the receiving side.

This takes nothing from the clear distinction between American and Al Qaeda fighters in the Sandbox. We go out of our way to avoid civilian casualties; they apparently go out of their way to increase them. Still, targeting civilians remains a tradition in Warfare; at least to the extent that a bona fide Military/Leadership or Infrastructure Target is involved.
Rich
 
This takes nothing from the clear distinction between American and Al Qaeda fighters in the Sandbox. We go out of our way to avoid civilian casualties; they apparently go out of their way to increase them. Still, targeting civilians remains a tradition in Warfare; at least to the extent that a bona fide Military/Leadership or Infrastructure Target is involved.
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The last qualifier is the most important distinction. Blowing up a cafe is targeting civillians. Bombing a market place is targeting civillians. Bombing a building full of insurgent goons that also has 2 floors of civvies is targeting combatants. Truck bombing our barracks is targeting combatants. Bombing the Cole is targeting combatants. Blowing up the Death Star and killing all the civvies working in the food court and running the Slushy machine is targeting combatants.
 
Blowing up the Death Star and killing all the civvies working in the food court and running the Slushy machine is targeting combatants.
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Yea but the second one wasn't even operational so in fact the Rebels just murdered a bunch of construction workers.

jedi = terrist
 
Ok MM here is my opinion and comparison to other commisions/tribunals in our history....

I have had a chance to look at the history of some of these commisions/tribunals. If you look at it from a historical perspective the Supreme Court gave the President leeway on the basis of the urgency of the situation.

The North was getting beaten on a regular basis at the beginning of the Civil War. It was a very real possibility that the North could lose and the Union would be no more.There was a great fear by the public this war could be lost and there were Confederate sympathizers in the north who would hinder the war effort. So the Supreme court was willing to give President Lincoln some room to move around.

Fast forward to WW2 and Pearl Harbor. This blow weakened the US in the Pacific almost to the breaking point. Once again there was a very real possibility that the United States and the Allies could be beaten. The public was very much involved in this war also on a daily basis.Once again the Supreme Court backed off and gave Roosevelt some elbow room.

Now once the tide started turning in the Civil War and WW2 and victory was in sight the Supreme Court started reeling that slack up.

Now lets go to the Global War on Terrorism. Here is where the Bush administration is its own worst enemy sometimes. They have maintained a cloak of secrecy and silence about some stuff in this war. Are the Terrorists percieved to be the threat the Confedrate Army and the Axis were by society? Just take a peek at the news and the Internet. One of the big stories was Brittany Spears psoing nude for a magazine. The Bush administration maintains that we are winning the war on terrorism handily. There is no sense of urgency for this threat. I can see where the Justices would feel that the chance of the terrorists winning is so low that it isnt urgent enough to back off and let Bush have some room in dabbling with our individual rights. There is time and capabilities to ensure that things are done the right way.
 
If there is no sense of urgency, then why are people so up in arms about detaining non-citizens indefinitley without trial? I guess the justification for keeping them imprisoned is not an urgent issue.
 
The sense of urgency had to do with the possibility of losing the Civil War and WW2. The North and the US were on the brink of the precipice of losing the war. The Justices decided to give the presidents some slack on the commisions due to the fact that the Justices felt that turning the tide of war had priority at that moment. Once the danger passed then on some occasions they reversed the situation....some of the rulings didnt come till after the wars had eneded.
 
You mean we would have lost WWII or lost the Union if we hadn't tried some prisoners by tribunal? Or we would have lost if the SC had to mess around stopping tribunals instead of what? Fighting the war?
 
You mean we would have lost WWII or lost the Union if we hadn't tried some prisoners by tribunal? Or we would have lost if the SC had to mess around stopping tribunals instead of what? Fighting the war?
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thats not what I said....

let me give you an anology...

say you are working on a very important project at work, in the course of doing the project you violate some company policies. Your boss notices this but because of the urgency and the chance that the project might fail could be 50-50, so he remains silent and doesnt interfere. Once you get the project to the point where the probability of failure and not finishing the project are minimal, he calls you to his office and talk to you about violating those rules to correct your behavior.
 
Mad Martigan, earlier you called BS when I said that the prisoners on Gitmo fall under US law. It took me a while to find the case:

In its 2004 ruling in Bush v. Rasul, the Supreme Court held that federal courts had jurisdiction over habeas corpus petitions filed by aliens held at Guantanamo Bay, because the United States exercised sovereignty in all but name over Guantanamo Bay. thus the Court held that Guantanamo Bay was for all purposes, US Territory.

As such, US law prevails in Guantanamo as if it were a territory of the US. Further, all people, citizens or aliens are entitled to due process and equal protection while in its jurisdiction (14th amendment).
 
You may be interested in the subsequent legislation of the Detainee Treatment Act of 2005.

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

`(A) is currently in military custody; or

`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'.
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Can Congress determine what areas of law the courts may not decide? Seems to be a serious separation of powers issue there, as well as an extremely dangerous idea....

What says the Constitution?

--Shannon
 
Article III, Section 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The bolded part, is the jurisdictional clause that allows the Congress to add or remove appellate jurisdiction.

Allow a simple example of the reach of this power.

Let's say that the Congress passes legislation that declares the Christian Baptist religion to be the only federally recognized religion. This new law goes even further (just to heap constitutional insult on everyone). It allows the IRS to tax each and every person in the US .05 cents per year and directs the US Treasury to disburse these collections to the Conference of Baptists Churches.

Now this law is blatantly unconstitutional, yes? So you file a suit in the District Court of D.C. (the court that hears the majority of challenges on federal law - but it might as well be in any federal district court), but for whatever reasons, you lose (just for the sake of this argument). You appeal to the Circuit Court and lose there. You finally appeal to the Supreme court, where Cert is granted.

But then the Congress passes a law that says, "no court, justice, or judge shall have appellate jurisdiction to consider an application of the first amendment."

At this point, you cannot continue your appeal, as all such appellate jurisdiction has been removed by this new law.

Those of you that are arguing that the DTA precludes jurisdiction by the Court, are in fact arguing for the exact scenario above to occur (as implausible as it may be).

The Supreme Court has only two choices at this point, as the final link in the appellate process. It can find (or manufacture) a loop-hole in which to render a judgment to correct a wrong, or it can dismiss the case and uphold the wrong.

In this case (Hamdan) the Court, through the majority, found what it considered a valid reason to continue the appeals. The Court did not determine that the DTA was unconstitutional. Removal of jurisdiction is clearly provided for in the Constitution (Art. III Sec. 2).

(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
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And that is the exact section that the majority says allows jurisdiction. If the statute allows jurisdiction to the D.C. Circuit, then ipso facto the SCOTUS must be the direct and final appeal from that Court. The Congress has no authority to bind the SCOTUS as a lessor court than that of its subordinates. See Marbury v. Madison.

Please remember that the Congress may remove the right of habeas corpus when in "Cases of Rebellion or Invasion the public Safety may require it." (Art. I Section 9) I submit that this is a general and inclusive power and is not one of restricted or exclusive usage. That is, the Congress may remove it entirely (in the above mentioned cases), but has no power to restrict the removal to a specific set of targets. It's an all or nothing shot.
 
The wording of the Constitution that allows the creation of military tribunals also specifically allows for appeal to the Supreme Court(it also makes not of the congresional approval Bush needs). It's final jurisdiction is implicit and still stands even though the DTA does not make mention of it. The Supreme Court has final jurisdiction, no loopholes necessary.
 
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