Article I, Section 8, lines 9, 10, 11, The Congress shall have the power:
9) To constitute tribunals inferior to the Supreme Court;
10) To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
11) To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
selfAdjoint said:
(snip)But I think you are mistaken even so. The Lafayette Ecadrille and the Abraham Lincoln Brigade were uniformed units in a legitimate state's armed forces.
Correct. The point being that in most legal codes it is not illegal for citizens to participate in wars in which their nation is not involved; it is, therefore, damned difficult to intern, detain, prosecute, deport, repatriate, or otherwise handle third party nationals under the best of circumstances (when they do conduct themselves within the strictures of international law).
(snip)Perhaps some of the current detainees fall into these categories, for instance fighting as recognized forces of the Taliban while it was still the government of Afghanistan.
In which case, they're PoWs, and covered by Geneva and Hague, and are to be detained until the Taliban formally surrenders. Ain't no mo' Taliban --- Geneva and Hague do not provide for the existence of cultures lacking even the structural permanence and cohesion of L.A.'s street gangs. Apply Article I, Section 8, line 10? None of SCOTUS' business.
But the al Qaida members as such do not qualify for that, since al Qaida is not recognized by any legitimate state. It may indeed be true that we need new legal doctrine to handle this NGO/asymmetric warfare innovation, but whatever we devise should not vary from the legal principles that we and all civilized nations have devised for warriors.
"Innovation?" Nothing new --- Republican Rome chased bandits and pirates, Imperial Rome chased bandits and pirates, as did every nation before and since. "Warriors?" Since when are ski-masked murderers and kidnappers "warriors?" This is already covered in Geneva and Hague under maintaining public order, safety, and services for noncombatants in occupied territories, "martial law."
Your animadversions on the early days of modern warfare are in the first place not completely accurate ("Two privates and a corporal" is surely a fantasy?),
They most certainly are accurate. Don't kid yourself for a minute that troops are going to fart around four years on a Moussaoui; depending on conditions, standing orders change from "shoot on sight" to "apprehend for formal sentencing" and back. "Two privates and a
private first class" constitute a "formal" tribunal under "fluid" circumstances --- two fingers and a thumb in Flanders during WW I. Third parties, amateurs, freelancers, freebooters, call 'em what you wish --- ain't welcome on a battlefield --- can't trust 'em, can't depend on 'em, can't turn your back on 'em, and if they're "on your side," they're going to piss off the opposition more often than not to the point that things get really nasty --- at which point, Geneva and Hague conventions are applied in the most expeditious manner possible.
and in the second place beside the point.
It's exactly
THE point --- Geneva and Hague provide for the dispositions of the detainees (hemp, sisal, nylon, or 9mm) --- they do not provide for delays of the length that have occurred in the present instance. That needs to be spelled out in an international venue; "individuals detained for criminal activities in war zones or occupied territories shall be tried and sentenced, if found guilty, within six months, or repatriated" --- something along those lines.
(snip)Resting their decision on these bases put the majority on very solid ground.
Article I, Section 8, lines 9, 10 reserve jurisdiction for Congress; the establishment of tribunals is implicit in a declaration of war, and that authority is invested in the troops; "legal due process" is served through the judgments of the individuals charged with its exercise. The "majority" have been to law school, they've read the Constitution, they're politicking, or legislating from the bench --- no surprise. There hasn't been a qualified individual on that bench for 60-70 years --- again, no surprise, given that they've got to be approved by the Senate. The majority decision reads like a kindergarten essay on "The Joys of Being a Lamebrained Liberal," and the dissents read like some second graders confabulation of Grimm's Fairy Tales, Aesop's Fables, and a late 20th century high school government book written by a panel of M. Eds. and Ed. Ds.. They are
all senile incompetents. The lawyers who presented arguments have to be likewise totally incompetent. This is the state of the judiciary in the U. S. going into the 21st century --- pathetic.
You do understand the nature of the legal problems
vis a vis jus gentium, and federal code? The detainees can NOT be released under international law, Geneva, or Hague --- their home nations are in most cases unable or unwilling to supervise their internment properly --- that is, they're apt to be back in the war zone
tout de suite, constituting a "threat to life," therefore,
verboten. (There may be supervision of internment through exercise of execution, mutilation, or who knows what else by "cooperative" governments --- again, G. & H. problems for the U. S..) They aren't PoWs in any real sense of the word, just a buncha punks out raising hell --- Geneva and Hague are written on the premise that even freebooters have the sense god gave garbanzos, and will align themselves with a political entity that has some formal recognition within the international community;
implicit in the structure and language of Geneva and Hague is the assumption that piracy, brigandage, and international outlawry are extinct --- don't ask me where the framers of the documents picked up such an idea, but my inference is that that is the assumption they've made --- incorrectly it appears --- going to have to be addressed. Same problem with federal code --- Congress has never sat down and defined "piracy, brigandage, freebooting," and whatever else might fall under Article I, Section 8, line 10 --- they are going to
have to do that --- in a sane, sensible, rational fashion? Which Congress we talkin' 'bout?
Astronuc said:
Troops have very little time to read rulings and dissenting opinions --- they tend to "condense" things to the kernel, particularly when "in contact." Has it got the potential to get completely out of hand in the field? Certainly. Again, very poorly thought through by the "best legal minds in the country."
This is a good point, and one for concern in the current military action in Iraq and Afghanistan.
It's a "point for concern" in
any military action --- hence,
Article I, Section 8, lines 9-11, reserving such power to Congress.
(snip)However, it is up to the military authorities and the national government to 'train' the troops to understand their responsibilities in the field. Then the issue becomes one of - does the current administration observe 'appropriate conduct' in the battlefield - or does the current administration condone and encourage 'anything goes'?
We'll give Willy his share of the credit here --- large part of his $50 billion surplus was posted at the expense of training (and weeding) the white trash guard and reserve units that screwed up at Abu Graib. "We'd spend the next week going over the UCMJ and Hague and Geneva conventions, but the budget won't cover it, so you do what you think's right." Is that what you mean by "anything goes?"
Certainly, the current administration has arranged for thousands of 'mercenaries' (private contractors) who they claim are not constrained by US law or the Geneva convention.
Interesting question --- just what is the status of a "soldier of fortune?" 'Nother thing for Geneva and Hague
redux.
Most of the detainees at Guantánamo have been released, which would seem to indicate that they weren't terrorists, but rather innocent people arbitrarily swept up.
This is a "leap of faith" (or politics), rather than logic. "Rat out" a cache, safehouse, or hideout, and "get out of jail free" --- anybody's guess.
(snip)The Bush administration exhibits contempt for due process, the rule of law, and the Constitution - even to the point of attempting to make 'legal' something which the Supreme Court has determined is illegal.
--- as does SCOTUS --- eminent domain decision plus pathetic dissents, this decision plus pathetic dissents. You're looking at nine people who are desperately in need of a career change.
This issue needs to become did Chaney, Bush, Rumsfeld and Rice commit Treason by going to war on Iraq? Did they have the REAL intelligence? Did they know days in advance about the 9/11 plot? My best guess is yes to all of it. I think we are being given the chair at the childrens table for Thanksgiving dinner. We know they lied about the 757 in the pentagon. We know that the "puts" on Boeing, United and American show real proof that the civilian world, at understood that something was happeing. The SEC won't even release their investigations. Wonder why?
