Talk:Unlawful combatant/Archive 5

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Supreme Court 1942

See the start of this thread in Talk:Unlawful combatant/Archive 4#Supreme Court 1942

Wing Nut's own sources acknowledge that every Guantanamo detainee was entitled to POW protections until their status was determined by a competent tribunal. This would be the real article five -- not the one that Wing Nut thought he was citing earlier. -- Geo Swan 10:59, 30 August 2006 (UTC)

A tribunal is only required to determine status if there is doubt as to their status (which there was not, as they were captured bearing arms but out of uniform), which is clear if you read those references carefully. After people called this into question as a protest, not because their is any real question, then they had a right to a quick tribunal to determine their status, as has happened. Also a tribunal is required to determine whether they should be punished (if punishment is intended), including punishment for violating the laws of war. In the past, such illegal combatants were normally executed after such a tribunal; incarceration of illegal combatants (as opposed to execution) was rare, usually reserved for high-value prisoners.Cuberoot31 01:34, 2 September 2006 (UTC)

The status must be in doubt unless both parties agree to the status. In most cases a POW is likely to agree that he or she is a POW and expect the protection of the Geneva Conventions, but it is unlikely that an unlawful combatant is likely to agree to be classified as such which is were paragraph in GCIII Article 5: (Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.) comes in, and the need for a competent tribunal to decide the issue. GCIII makes clear that only a competent tribunal can ascertain if the captured person does not belong to any of the categories enumerated in GCIII Article 4, it is not down to front line troops to make a decision. --Philip Baird Shearer 17:22, 2 September 2006 (UTC)

Brigadier General John D. Altenburg, the former deputy judge advocate general, who was the appointing authority for the military commissions, explicitly stated that, in his legal opinion, any of the detainees who ever asserted that they were a noncombatant, should have their status determined by a competent tribunal.

Cuberoot31, you assert that there was no doubt about their status as they were captured bearing arms but out of uniform.

How many transcripts from the Guantanamo detainees Combatant Status Review Tribunals or Administrative Review Board hearings have you read?
How many Guantanamo detainees can you name who were captured bearing arms out of uniform?

Cuberoot31, you realize that, after decades of civil war, practically every household in Afghanistan owns an AK47? You realize that, after decades of civil war, used AK47s were extremely cheap, and were available for sale in every bazaar.

Cuberoot31, I have read over 200 transcripts. The Tribunal officers were surprised when AAfghans told them they did not own an AK47. They told those detainees that they had got the impression from the other Tribunals that every Afghan household needed an AK47 to protect their household from theft. The detainees who claimed they didn't own an AK47 told their Tribunals that they were poor, so poor, they had nothing worth stealing, so they didn't need an AK47 to protect themselves.

Cuberoot31, can you tell me if you read any official allegation that the US intelligence officials knew that the Taliban didn't wear a uniform?

If you go and read article 3, article 4 and article 5 of the third Geneva Convention for yourself -- I highly recommend you do so -- you will find that the Geneva Convention does not actually state that a combatant has to wear a "uniform" or they will be considered an unlawful combatant. If you read those article for yourself you will find that they have to be wearing a "distinctive marking, recognizable at a distance".
The allegations against several of the Guantanamo detainees was that they had been issued "Taliban uniforms". What is this Taliban uniform? Black turban, matching light beige tunic and pants.
So, I'd like to know if the meme that none of the Taliban were wearing an uniform can be traced to any Bush administration officials, or whether it has arisen from supporters of Bush administration policy. Did you read it from a quote from a Bush administration official?

FWIW, take a look at the allegations against Khirullah Khairkhwa. .He was appointed to be the Governor of the Province of Herat by Mullah Omar. The allegations against him said that he was in command of all the police and military forces in Herat, and that he, in turn, reported directly to Mullah Omar. Well, one of the other criteria for whether a combatant is a lawful combatant is whether they were answerable to officers who were responsible for their actions, and, in turn answered up a chain of command. Well, if American intelligence analysts allege that a provincial governor was in command of all the military forces in his province, and in turn answered to the big cheese, IMO that blasts the stuffing out of the meme that Taliban fighters were not lawful combatants because they did not answer up a chain of command.

Cuberoot31, may I suggest you go back and re-read your notes? You asserted: "After people called this into question as a protest, not because their [sic] is any real question, then they had a right to a quick tribunal to determine their status, as has happened."

You are completely mistaken if you think that a single Guantanamo detainee has had a Geneva Convention competent tribunal. The Combatant Status Review Tribunals bear some surface similarities to the tribunals described in AR-190-8. That army regulation sets out how Army JAG personnel should convene competent tribunals that fulfill the USA's Geneva Convention obligations to hold competent tribunals. While both proceedings had three tribunal officers to make the decision, and various other surface similarities, the most important task for a Geneva Convention competent tribunal is to determine a captive's status: whether they were lawful combatants, civilians, or a combatant who violated the laws and customs of war such that they stripped themselves of lawful combatant status.

The Combatant Status Review Tribunals task was not to determine whether the detainee was a civilian. The Combatant Status Review Tribunals task was not to determine whether the detainee qualified for POW status. The sole task of the Combatant Status Review Tribunal was to confirm whether the secret determinations that had already been made by US intelligence analysts that the detainees met a very broad definition of "enemy combatant" was correct. See Moazzam Begg's CSRT. It spells out, in detail, that the CSRT did not have the authority to consider whether the detainees were lawful combatants who qualified for POW status.

It has been pointed out that the definition of "enemy combatant" used by the CSRT was so broad that the little Swiss grandmother, who innocently sent a small donation to what she thought was a legitimate charity, would meet the definition of enemy combatant if one of the charity workers diverted some of the charitable resources to support a terrorist project.

Your assertion that the CSRT was in response to pressure from "people" is another assertion that is simply incorrect. The CSRT was in response to a Supreme Court ruling Rasul v. Bush.

Cuberoot31, I am not trying to discourage you from contributing to the wikipedia. But I would encourage you to make a greater effort to do more research. Or, alternatively, if you don't have the time, or experience, to do more research, why don't you consider raising your issues as questions, rather than assertions? If you raise your issues as questions, "didn't the CSRTs fulfill the USA's Geneva Convention obligation to hold a competent tribunal?" -- then you don't get your emotions up, and don't feel backed into a corner, if other contributors who have done better research than you come forward with refutations to the beliefs you held.

Cheers! -- Geo Swan 15:11, 3 September 2006 (UTC)

They bore arms in conflict without a "fixed DISTINCTIVE sign recognizable from a distance" GCIII (your "uniform" is not distinctive). Most of them were captured on the field of battle. The Taliban most definitely did not and do not conduct their operations in accordance with the laws and customs of war (it carries out operations deliberately targeting civilians). Therefore, they do not qualify as POWs. On top of that, those in Guantanamo are excluded from Geneva Conventions protections because the Taliban was not party to the Geneva Conventions, based upon article 2 of GCIII and GCIV. Therefore, if they are combatant, by the simple fact of not being a member of a contracting party's armed forces, citizen of a contracting party defending their own nation, and not being a civilian, they do not qualify for POW status. On top of that, most of those still in Guantanamo were not nationals of Afghanistan, and were citizens of nations that have normal diplomatic relations with the US, thus are excluded from protection of GCIV by article 4. I suggest reading the limiting clauses of the Geneva Conventions before citing irrelevant references.Cuberoot31 02:28, 6 September 2006 (UTC)

If it was distinctive enough to serve as a justification to continue to detainee those detainees then it is distinctive enough strip the Bush administration from using the justification that "the Taliban don't wear uniforms" as a justification for not treating the Guantanamo detainees suspected of being Taliban fighters as lawful combatants.
Where did you get the information that most of the Guantanamo detainees were captured on the field of battle? I urge you, in the strongest possible terms, to read the first Denbeaux study -- which documents how the detainees were captured. Less than ten percent were captured by American GIs. A large fraction were captured by bounty hunters. Most were captured in Pakistan, peacefully, by border guards, regular police, or the headmen of the isolated villages in the mountain passes. I've got news for you. The DoD wasn't even claiming most of the detainees were fighters.
You assert that Taliban soldiers don't conduct their operations in accordance with the laws and customs of war? Excuse me? How could this possibly be a justification to excuse the USA from conducting competent tribunals to determine whether the detainees in question were in fact Taliban fighters? Read the Denbeaux study, and you will learn what fraction of the Guantanamo detainees the DoD claims were Taliban fighters. I've got news for you. The DoD wasn't even claiming most of the detainees were members of the Taliban or al Qaeda.
You assert -- "Therefore, if they are combatant, by the simple fact of not being a member of a contracting party's armed forces, citizen of a contracting party defending their own nation, and not being a civilian, they do not qualify for POW status." -- And how was it determined whether they were combatants? Well, countries that comply with the Geneva Conventions do so by convening competent tribunals.
You assert that the Guantanamo detainees were not protected by the Geneva Conventions because the Taliban were not signatories? You realize that Afghanistan IS a signatory to the Conventions?
You are correct, civilians who are citizens of countries that are not parties to the conflict are not protected by the Geneva Conventions -- because they should be enjoying greater protection by virtue of their country's neutrality. However, if they are captured, because they are suspected of being combatants, then they too should have their status determined by a competent tribunal.

Cheers! -- Geo Swan 08:34, 15 September 2006 (UTC)

POW, civilian, or what?

Here's a point of view from 2 former Justice Department lawyers:

the Supreme Court has not required that the Geneva Conventions be applied in the war on terror; neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status because of the Hamdan decision. [1]

Rivkin and Casey suggest that Bush opponents are misreading Hamdan v. Rumsfeld. I'd like to see their POV included in the article, to balance out the anti-Bush POV. --Wing Nut 13:53, 13 July 2006 (UTC)

Not relevant since this ruling says nothing about POW/unlawful combatant status. What exactly is it you want to mention?Nomen Nescio^{Gnothi seauton} 14:42, 13 July 2006 (UTC)

Some more on this:

--Philip Baird Shearer 14:52, 30 August 2006 (UTC)

I'd like to note that Wing Nut's comment is clearly relevant, as Hamdan v. Rumsfeld is used in this article, and POW status is the center of this discussion.PeaceThroughStrength 05:53, 2 September 2006 (UTC)

Neutral point of view?

This article appears to put in a few token comments of the basis of the theory of what an unlawful combatant is, and then has about ten times as much content claiming to disprove it. I do not consider that a neutral point of view. In addition, I have found in the past significant citation errors, and I am sure there are more in the citations I haven't read all the way through. I am not impressed by large numbers of false or exaggerated citations, though those with less time to read them carefully might be. I think it's critical to note these facts: 1) an illegal combatant is a combatant who isn't a legal combatant; this is an ancient and easily understood definition. 2) Article 2 and 4 of GCV III & IV clearly limit who is provided the protections of the conventions. This is so there aren't free-rider nations who ignore the conventions in carrying out war crimes, but whose nationals then claim the protections of the conventions when captured. If this wasn't the case, it would mean that nations would have absolutely no incentive to abide by the conventions. 3) It can be useful to differentiate here between US law and international law; some citations mention protocols the US isn't signatory to, which can cause confusion. If the US hasn't ratified a law, how is it in violation of said law? International treaties do not have automatic sovereignty.PeaceThroughStrength 05:48, 2 September 2006 (UTC)

I would wonder about the neutrality of a user called "PeacethroughStrength" —Preceding unsigned comment added by 220.39.230.108 (talk • contribs)

Thank you Mr. Anonymous. My title refers to a historical correlation for a free and law-abiding society -> if it maintains a strong military and the economy to support it, it can often have peace. If it lets itself grow weak, it tends to be forced into war more frequently. Si vis pacem, para bellum. I would note that I do not claim to be neutral on this topic, but my POV is backed up by original references, and I desire clarity and balance, which are lacking in this piece.PeaceThroughStrength 05:55, 15 September 2006 (UTC)

I also think the article is a bit off from neutrality, and I changed the wording of one sentence because it seemed to strong. A lot more work would be needed to substantially improve neutrality. However, adding a POV tag to this page in an edit marked minor and without comment probably wasn't the way to go. POV tags are not minor edits- they color the entire way a page is seen. Jcobb 20:16, 15 September 2006 (UTC) Noted; I default to minor edits, and forgot to turn that off.PeaceThroughStrength 06:22, 19 September 2006 (UTC)

"If you look for peace, prepare for war"? So would you call yourself a National Socialist? Honestly curious! dreddnott 19:12, 28 September 2006 (UTC)

Igitur qui desiderat pacem, praeparet bellum. ("if you desire peace, prepare for war") is from Epitoma rei militaris by Vegetius and predates National Socialism by well over a thousand years. --Philip Baird Shearer 01:55, 12 June 2007 (UTC)

Sorry to post as an "anon" but I just wanted to point out that you blow any sense of NPOV right off the bat with the first sentence. While this term has been popularized by the Bush administration, it wasn't invented whole cloth by them. Its like starting an article about peanut butter and banana sanwiches by saying they are what Elvis used to eat.

New anti-terrorism law

Does the new anti-terrorism law in the USA grant the Bush administration the right to label anyone they want as an unlawful combatant, without having to explain it or supply any proof? That's what I've heard from criticism. JIP | Talk 17:35, 9 October 2006 (UTC)

It does indeed seem to do just that. The relevant text from the bill is in the Military Commissions Act article. Ah heck, I'll reproduce it here, so you don't have to go dig through that article:

The term ‘unlawful enemy combatant’ means— ‘‘(i) a person who has engaged in hostilities or has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or ‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Part 2 of this definition does seem to say that the mere act of designating a person as a UEC is sufficient to validate that determination (via a CSRT or competent tribunal, of course). ArielGlenn 17:20, 16 October 2006 (UTC)

I've added a pointer to the article on the MCA, since that will soon be the legally binding definition of UEC. I'd like to see this article move to have the title "Unlawful Enemy Combatant" with a redirect from Unlawful Combatant, since that will now be the term everyone uses. Thoughts? ArielGlenn 17:37, 16 October 2006 (UTC)

Yes, it looks like "an unlawful combatant is a person who [...] has been determined to be an unlawful enemy combatant" basically means "an unlawful combatant is whoever we say is one". JIP | Talk 05:03, 17 October 2006 (UTC)

Poor, POV definition

The first paragraph tears right into the Bush admininstration's definition of "unlawful combatant", as though that's the only time such term has ever been used. I then goes on to talk about the Geneva Conventions, and 1942 court cases; if the only source for "unlawful combatant" is the Bush administration, then why are those in the article? The introduction needs to be very clear on the distinctions of a person captured in a war. They can be:

1. a noncombatant; these are afforded certain rights by the Fourth Geneva Convention

2. prisoners of war; these are afforded certain rights by the Third Geneva Convention article 4 POW rules. These consist of:

regular troops
irregular troops with ALL of the following:
- fixed distinctive sign identifying them as combatants
- a responsible chain of command
- open carrying of arms
- following the rules of war

3. occupants of a non-occupied territory who spontaneously take up arms, given the meet the following:

open carrying of arms
following the rules of war

4. any other combatant

Any captured person in category 4--which describes many of those fighting occupation in Iraq--are not covered by the protections in the Geneva Conventions, and is generally considered an "unlawful combatant". The breakdown into "lawful" and "unlawful" combatants has been in place since the 19040s, when the Third and Fourth Geneva Conventions were ratified. The Third Geneva Convention also explicity recognizes that there are combatants who are NOT subject to the protections afforded POWs, as it states "when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal."

The 1977 Protocol I extends protection to some combatants of alien occupation or racist powers, which does expand the POW defintion and should be mentioned (but neither the US nor Iraq have accepted Protocol I, so it's not applicable in that conflict). It has some serious flaws in that it lacks definitions for what constitues an "alien occupation" or "racist regime", and does not require the combatants to be following the rules of war. One restriction Protocol I adds is that it explicity states that mercenaries are NOT covered by the POW rights in the Third Geneva Convention. This may well cover a number of the US detainees from Iraq, as there are reports of non-parties to the conflict offering large rewards to the families of "martyrs" killed in Iraq.

As for the US and prisoners taking in Afghanistan and Iraq; the status of "unlawful combatants" is vauge; should the be subject to US territorial law when they are not US citizens, residents, or even present in the US? If so, then you're implying that US law should apply globally, and I'm sure that opinion won't fly over at the UN. The only rules covering those prisoners would then be US laws and military regulations specifically covering non-POW prisoners. These may choose to extend more rights to prisoners, but they are under no obligation to. Hamdan v. Rumsfeld, which did this by declaring the tribunals held to determine the prisoner status invalid, seems to me to also be suspect, as the Supreme Court ruled that the Supreme Court has jurisdiction over these cases, and that seems to be a clear conflict of interest... scot 19:43, 10 November 2006 (UTC)

Clarification of Citation Request

An unlawful combatant is accorded neither the rights a soldier would normally have under the laws of war, nor the civil rights a common criminal would normally have.‹The template Talkfact is being considered for merging.› ^{[citation needed]}

To what aspect is citation required? The claims in this sentence are explained in the remainder of the article. --ANONYMOUS COWARD0xC0DE 05:40, 16 December 2006 (UTC)

"Unlawful Enemy Combatants" need not be combatants?

The language of Military Commissions Act of 2006 seems to allow the label "unlawful enemy combatant" to be applied to persons who are in no recognizable sense "enemy combatants" of any sort.

From pages 3 and 4 of HR 6166, the Military Commissions Act of 2006 (emphasis added):

‘‘(1) UNLAWFUL ENEMY COMBATANT.—

‘‘§948a. Definitions

‘‘In this chapter:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The

term ‘unlawful enemy combatant’ means—

‘‘(i) a person who has engaged in hos-

tilities or who has purposefully and materially

supported hostilities against the United States

or its co-belligerents who is not a lawful enemy

combatant (including a person who is part of

the Taliban, al Qaeda, or associated forces); or

‘‘(ii) a person who, before, on, or after the

date of the enactment of the Military Commis-

sions Act of 2006, has been determined to be

an unlawful enemy combatant by a Combatant

Status Review Tribunal or another competent

tribunal established under the authority of the

President or the Secretary of Defense.

In (i), the phrase "purposely and materially supported" seems extremely elastic. Using a credit card to make a donation through a website could, it seems, make one a "combatant" by this criterion.

The language of (ii) appears to say, in effect, that "An 'unlawful enemy combatant' is anyone the President chooses to call an 'unlawful enemy combatant'." This establishes no criteria at all.

Contrary to what is assumed in most of the discussion in the article, the term "unlawful enemy combatant" does not seem to designate a subset of enemy combatants. If this is correct, I invite someone to edit the article appropriately. 67.117.144.176 07:40, 26 January 2007 (UTC)

Read my comments above. As you pointed out, the definition "An unlawful combatant is [...] a person who [...] has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." in fact simplifies to "An unlawful combatant is anyone we say is one." If Bush decided tomorrow that I am an unlawful combatant, US troops would be obliged to arrest and detain me. JIP | Talk 08:37, 4 February 2007 (UTC)

Obligation to follow the Geneva Conventions

Critics of US policy frequently blur the distinction between two ideas:

that of not being covered by the protections in the Geneva Conventions, versus
that of not being subject to the protections afforded POWs

Their implication is that the US is ignoring the Geneva Conventions (#1) when declaring that certain spies or terrorists aren't POWs (#2)

(This is like the same critics' tendency to blur the distinction between "rough interrogation" techniques like waterboarding and "real torture" like beating with a truncheon, electric shocks to the groin or cutting off ears.)

How can we sharpen these distinctions? —The preceding unsigned comment was added by Ed Poor (talk • contribs) 14:56, 9 February 2007 (UTC).

No need, since there is no distinction. "Rough interrogation" as used by the current administration qualifies as torture under the longstanding international definition. Furthermore, the UN has already commented that this is exactly the case. So, this is a euphemism, propaganda if you will, to blur peoples perception of what the US is doing. Second, most sholars of international law disagree with the notion that none of the GC would apply. Again this assertion by the Bush administration is contrary to current consensus. In addition, the Supreme Court has reaffirmed that view with their recent ruling that the GC apply to every detainee in the War on Terror.Nomen Nescio^{Gnothi seauton} 15:26, 9 February 2007 (UTC)

There is a distinction btween torture and inhuman and and degrading treatment the the ECJ ruled that the five techniques "did not occasion suffering of the particular intensity and cruelty implied by the word torture ... [but] amounted to a practice of inhuman and degrading treatment". The point is that as the article on torture highlights, section 16 of the United Nations Convention Against Torture: contains the obligation to prevent "acts of cruel, inhuman or degrading treatment or punishment", but only in "any territory under its jurisdiction". So a state is not prohibited from allowing coercive techniques short of torture conducted in a territory not under its jurisdiction. Which is probably one of the reasons that QB was originally chosen. --Philip Baird Shearer 18:00, 9 February 2007 (UTC)

And Ed, apologists for the Bush Administration routinely try -- perhaps through honest unfamiliarity -- to suggest that the Geneva Conventions endorse the torture of captives who don't qualify for the protections of POW status.

Ed, please remember that the Geneva Conventions proscribe other things beyond torture, like humiliation and religious discrimination.

Please remember that article five of the third Geneva Convention requires captors to afford all captives the protections of the POW status, until a "competent Tribunal" convenes to determine their status. The Tribunals the USA has used, in the past, to determine whether a captive really meets the criteria of a POW are described in AR-190-8.

Bush apologists argue that the Combatant Status Review Tribunals are "superior" to Geneva Convention Tribunals, because they add an additional officer. However, they lacked the mandate of a Geneva Convention Tribunal, or an AR-190-8 Tribunal.

AR-190-8 Tribunals have the authority to determine that a captive was

In fact a lawful combatant, who qualified for the protections of POW status after all.
A civilian refugee, who was not a combatant, who should be released immediately.
Or someone who somehow stripped themselves of the protections of POW status.

Without regard to how large a staff the Combatant Status Review Tribunals had, they did not fulfill the USA's obligation to convene a "competent tribunal". because they lacked the mandate to consider whether the captives qualified for POW protection. See Moazzam Begg's CSRT for the details.

The Bush administration's original policy was that the President could rule that the USA could skip the step of holding competent tribunals for the captives in the GWOT. Bush apologists twisted one phrase in article five, which said that a competent tribunal had to be convened "if there is any doubt" over the captive's status. Bush apologists asserted -- President Bush doesn't have any doubts they are terrorists -- so he doesn't have to authorize any Tribunals.

The USA has three branches of government -- this aspect of the Bush detainee policy was overturned by the SCOTUS. The SCOTUS ruled that the DoD convene Tribunals similar to those described in AR-190-8. In response the DoD quickly cobbled together the CSRT procedure -- which bears a surface similarity to AR-190-8 tribunal. But the CSRT differed from AR-190-8 tribunals in the only way that really matters -- they lack the authority to determine whether a captive was entitled to the protections of POW status. US District Court Justice Joyce Hens Green reviewed the CSRT procedure, and ruled that they were unconstitutional.

So, the USA has, still, not convened the competent tribunals that they are obliged to convene. Yet they are not affording their captives the protections of POW status.

Hence the USA is violating the Geneva Convention.

Go ahead. Look it up for yourself.

Cheers! -- Geo Swan 17:41, 9 February 2007 (UTC)

I've glanced recently at the Geneva Conventions. Regardless of a captives classification as "POW" or spy or terrorist or non-combatant civilian, the GC forbits:

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

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. [2]

Torture is mentioned in (a) above, and "humilating and degrading treatment" in (c). Just wanted you to know that I realize this. I'm a former army man, and I studied this sort of thing to help me decide whether to apply to OCS.

I think the disctinction that needs to be made is over whether branding a captive a spy or terrorist would deprive him of Geneva protections. According to my simple reading, it would not. Spies can't be tortured, and terrorists can't be humiliated.

The political wrangling is over whether a peremptory classification of a captive as an "illegal combatant" is a de facto refusal to accord them Geneva protections. Bush and Rumsfeld were apparently saying that that illegal combatants don't get POW protections, but I don't recall them saying that clauses (a) and (c) cited above would no longer apply.

Who's saying that? --Uncle Ed 17:53, 9 February 2007 (UTC)

If someone is an enemy combatant then they fall under GCIII where their nationality is of little practical concern, because many state's armies, (like for example the British Army - Hello Tommy Gurkha and Tommy Fijian), may have a lot of non citizens in their ranks. But after competent tribunal has ruled that a person is an unprivileged belligerent, then that person only get protection under GCIV if they are a protected person as defined in GCIV. Enemy citizens of a power engaged in a war with the US would qualify, but citizens of the U.S. or allies in a war, or citizens of neutral states with diplomatic representation with the U.S. are not protected persons under GCIV. So for most of the people held as unlawful combatants by the US, with the possible exceptions of Afghan and Iraqi nations, are not protected persons under GCIV. The people not covered by GCIV of course should still have protections under US law and thanks to the US constitution under other treaties like United Nations Convention Against Torture. But as I pointed out above torture and "inhuman and degrading treatment" are not the same thing under international law and because of article 16 of ICAT, as far as I can tell, people can be treated differently by the US depending on the jurisdiction where they are held. If the place they are interrogated is not under US jurisdiction then they can subject someone to "inhuman and degrading treatment" which is of a particular intensity and cruelty to be torture (see five techniques) and still be within U.S. treaty obligations. --Philip Baird Shearer 18:37, 9 February 2007 (UTC)

My understanding of the Geneva Conventions is that the USA can't strip an y protections from captives, until they convene that competent tribunal, like that described in AR-190-8, and unlike the CSRT, that has the authority to determine whether the captive is a civilian refugee, a lawful combatant, or someone who has done something to strip themselves of the protections of the Geneva Conventions.

My understanding too, and one that the US Supreme Court seems to agree with Article 6, paragraph 2, of the Constitution of the United States. But the question was were they under the jurisdiction of the Civil Courts. AFAICT the Supreme Court seems to think that they were. That was not the point I was making, I was making the point that if they had been in front of a GCIII competent tribunal, because of the nationality of many of the prisoners, if they are not protected by GCIII many would not be not covered by the protection of GCIV. Even if they are, the U.S. administration can invoke other articles in GCIV as listed in the article to circumvent parts of the treaty's protection of civilians. --Philip Baird Shearer 00:12, 11 February 2007 (UTC)

My understanding is that the SCOTUS had the authority to over-rule the President, and that they did so. My understanding is that Joyce Hens Green had the authority to overrule the DoD as to whether the CSRT fulfilled the USA's obligation to convene a "competent tribunal", and that she did overrule the DoD. Even the retired JAG General who was the first convening authority for version 1.0 and version 1.1 of the military commissions said that any Guantanamo captive who claimed to be a civilian, or claimed to deserve POW treatment had raised the necessary doubt that they should have a competent tribunal authorized to determine their status.

Note again, the CSRTs did not confirm the classification of the captives as "illegal combatants", they confirmed their classificaiton as "enemy combatants" -- not even addressing whether their combatant status was lawful or unlawful.

With regard to who asserted that a peremptory classification -- ie no competent tribunal first -- can strip a captive of the protections against humiliation and outrages against personal dignity -- Didn't Rummy explicitly authorize "stress positions", "dietary manipulation", "enforced nakedness", "enforced grooming", the removal of "comfort items"?

Captives collapsed from the pain of these "stress positions" -- so I think this is at least "torture-lite".

A difficult one! One has to read the ECHR ruling in the "five techniques"[3] specifically paragraph 167, for guidance but that was some time ago and international law moves on, so short of another court case with these specific circumstances, one can not say with certainty if it was or was not torture. A more interesting question is in using these techniques in Cuba were they in breach of the torture treaty Article 16: "In any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment". If so whether it was torture or not is a mute point the US would still be in breach of its treaty obligations if GB was under its jurisdiction. --Philip Baird Shearer 00:32, 11 February 2007 (UTC)

When General Sanchez's office passed on the authorization for dietary manipulation, over his signature, it added fine print saying that the manipulated diet had to be sufficient in calories, and vitamins, etc. But it could be delivered late, cold, off-schedule, unfamiliar, unpalatable. It just couldn't be "bread and water", or of insufficient amount. However, when his authorization was implemented, in Abu Ghraib, the fine print didn't get taken into account, and "dietary manipulation" did get implemented as "bread and water", or starvation.
For muslims enforced nakedness and enforced grooming did constitute religious oppression. For "enforced grooming read "hogtying them, and shaving off their beards, shaving their heads bald." Given the cruelty Miller authorized, it wouldn't surprise me if they shaved off the captives eyebrows and public hair as well.
If you look at the factors favoring Mesut Sen's continued detention you will see one of the factors favoring his continued detention was that he "lead prayer sessions" in Guantanamo. For crying out loud -- isn't this out and out religious discrimination?
There are captives who, during their Administrative Review Board hearings, were able to refute all the allegations against them, who were then given highly unprofessional, dishonorable tongue-lashings from their hearings Presiding Officers. I think it was just one Presiding Officer delivering these tongue-lashings. The first one I read was the most shocking. As I read it, I wondered if the Presiding Officer who delivered it was drunk, or on drugs. The captive had given reasonable sounding answers to all the allegations against him. He sounded innocent of being a combatant to me. And I think he must have sounded innocent to the Presiding Officer as well, because he didn't address any of the factors at all. Instead he launched into a blistering denunciation of the captive, and told him how his attitude disgusted him. Why? Because he had read that, during the four years of his detention without charge in Guantanamo there was a record that one or more guards had recorded he had uttered "anti-American" sentiments. Well, for crying out loud, why shouldn't an innocent man, kidnapped from his home after a false denunciation, and held, for years, without charge, without a meaningful chance to challenge the evidence against him, express dissatisfaction with his treatment?
- There are other captives who had their Board members tell them (paraphrasing): "We know you were innocent, when you were captured. We have heard your assurance that, when you were captured, you were a man of Peace. That doesn't matter. Your release now hinges on you convincing us that after four years of feeling a sense of injustice over your detention, without charge, based on false allegations, you haven't become radicalized, and become a threat to the USA. You have to bear in mind that we have certain knowledge that you have now spent four years in close contact with committed terrorists."
Removal of comfort items is also a form of religious discrimination. Muslims are not allowed to pray if they aren't "clean". Being clean requires bathing. But these comfort items include their soap, shampoo, toothpaste, toothbrushes, wash cloths, towels. When these items are stripped from them, they are in a religious dilemma. Should they pray, even though they can't make themselves clean first?
Released captives say there is an epidemic of tooth decay in Guantanamo -- due to the widespread stripping of toothpaste and toothbrushes.

Cheers! -- Geo Swan 20:14, 9 February 2007 (UTC)

I am not advocating rough interrogation, Rumsfeld is. But as a contributor I feel we should make a distinction between (a) rough interrogation and (b) "torture".

If, however, there is a significant minority (or larger!) advocating that no distinction be made between (a) and (b), then we need to describe their viewpoint. For example,

Don Turtem of Physicians for Social Responsibility said that rough interrogation techniques like waterboarding are really a form of torture.
Getze "Scoop" Frommim, a retired US general, said that rough interrogation is not torture. "It don't leave no marks or even really hurt the mutt. It just scares him a bit."

How does this approach sound? (Should this discussion move to Rough interrogation?) --Uncle Ed 14:35, 12 February 2007 (UTC)

Why is it the role of wikipedia contributors to draw the distinction between "rough interrogation", whatever that is, and torture? You write as if you think there is some kind of consensus that waterboarding is not torture. Did you mean to suggest this? If so, what is your reasoning for this?

Why shouldn't sleep deprivation that is extended enough to put one in an altered mental state be considered torture? Mohamed al-Kahtani's sleep deprivation was so prolonged that the FBI described him gibbering in a corner. Why shouldn't that be considered torture? There were almost one hundred hunder strikers thirteen months ago. Then the camp authorities started using a "restraint chair", during forcefeeding. The captive is strapped in the chair, which restrains their limbs, their head, their torso, from all movement. Then the tube is forced down the captives throat.

There was a controversy over the size of the tube. The captives claimed that the tubes were being inserted by untrained guards, who used over-size tubes. The DoD denied it, and trotted out -- again -- the bald-faced lie that the Manchester manual taught al Qaeda members to lie. Quietly, however, the chief doctor at the prison infirmary acknowledged that the infirmary had used oversize tubes. 4mm is the conventional size. 4.8mm tubes were used for a while, and 6mm tubes were used for a shorter period of time.

Gravity forces the feeding fluid down the tubes. The captives described the staff over-filling them, so that they suffered excruciating cramps. The captives speculated that their feeding fluid was being adulterated with laxatives.

The new procedure required the captives to remain strapped in the chairs for extended period times -- longer than the manufacturer's recommendation. The ostensible justification is that strapping the captives in the chairs has to be long enough to prevent them from going to the bathroom and inducing vomiting, thus undoing the force-feeding.

The captives felt that the new feeding procedures were a form of torture. It practically broke the hunger strike, cutting the number of strikers from almost a hundred to about half a dozen.

FWIW one of the three men who the DoD reports committed suicide was one of the half dozen men who continued to endure the use of the restraint chair. He had been on the hunger-strike for almost an entire year, six months of that in the "restraint chair" regime.

Little known fact -- the three men's corpses were sent to their families about a month later. A blue-ribbon panel of international forensic pathologists volunteered to conduct independent, third-party autopsies. The families suspected hocus-pocus because the corpses were missing some internal organs. Dr Patrice Mangin, a senior French pathologist who headed the panel, reassured the families that pathologists routinely remove organs like the liver and brain, that spoil quickly. But, he said, he was concerned that the Guantanamo camp authorities had not sent the men's throats. He said it was essential for his team to have the dead men's throats, and to have the sheets the camp authorities claimed the men used to hang themselves.

All three men had been recent hunger strikers -- one of them for almost an entire year. Were the men's throats kept because they would allow lesions from the force-feeding to be made public? Is it possible that the men really died from the force-feeding, that the wounds inside their throats, from the repeated insertion of the feeding tubes would suggest the men were murdered? The DoD could easily disprove this hypothesis by cooperating with the internation panel. I think it reflects very poorly on the USA that the DoD has not done so.

Another little-known fact -- the guy who had been on the hunger strike for almost a year had been designated to be released soon -- but he didn't know this because the Guantanamo camp authorities were playing a cruel game where they wouldn't let his lawyers meet with him, or deliver their mail. They kept changing the way they spelled his name, and then telling his lawyers "we can't deliver your mail because we don't have any captives listed under the name you have given us." -- the record shows that the DoD had changed the way they listed his name at least three times -- the last time less than a month before he died.

Worse, the only justification the USA has offered for his continued detention was an association with the Islamic missionary organization Tablighi Jamaat. That is it. Take a look at Allegations that Tablighi Jamaat has ties to terrorism. Richard Reid, and some other men known to have tried to join al Qaeda were first members of Tablighi Jamaat. Well, this Tablighi Jamaat has millions of participants. That dozens or even hundreds of them were once Tablighi members should be insufficient, in and of itself, to justify continuing to detain a captive for years on end. Neither should the claim (unsubstantiated so far as I can determine) that terrorists claim they are traveling to join a Tabligh pilgrimage in order to provide a cover for travel for terrorist purposes. Since this is the only justification the USA has offered for his detention I am going to believe he was one of the Guantanamo captives who was totally innocent.

Sorry, I got off topic. Drawing the distinction you suggested would be tricky. For us to do so would pose a serious rick of one or more of us putting POV material into article space.

Oh, could you let us know whether we convinced you that the USA is, currently, in violation of the Geneva Conventions, for its failure to convene competent tribunals which are authorized to rule whether the captives are civilians who should be released, or lawful combatants, who should continue to be accorded all the protections of POW status? Have we convinced you that the USA is in violation of the Geneva Conventions for not extending all the protections of POW status to their captives until competent tribunals determined they were not civilians or lawful combatants?

Cheers! -- Geo Swan 03:26, 13 February 2007 (UTC)

Has the US government offered any justification or explanation as to why they think these "unlawful combatants" do not fall under the category of POWs, other than the cited definition, which basically amounts to "because we say so"? JIP | Talk 21:13, 20 February 2007 (UTC)

Constitution of the United States

At the moment there seems to be a clash in this article between the relevent merits of Article 1, section 8 and Article 6, paragraph 2 of the Constitution of the United States.

Article 1, section 8 "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
Article 3, section 6 paragraph 2 "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."

I would have taken captures to be property captures, otherwise the word prisoners would be used, but I have no legal source for this. Has there been a ruling on it, or if Article 6 (GCIII in this case) trumps it?--Philip Baird Shearer 00:12, 11 February 2007 (UTC)

I dunno. But I had an interesting book when I was a kid, an account, by CS Forester, the author of the Horatio Hornblower novels, about America's first declared war, the war against Tripoli. Mismanaged. Two ineffective COs, one really excellent CO, Edward Preble, who had to come home because of seniority issues, then two more acceptable COs.

Anyhow, Congress's first orders to the task force's Captains were that they were to "sink, burn or destroy" all the Tripolitan warships. It did not authorize them to "take". So, in order to comply with their orders, if the Tripolitans surrendered, they had to let them sail away. IIRC, it took a year or more for Congress to understand they had to issue new orders, to "take, sink, burn or destroy" -- allowing the Captains to capture the enemy vessels.

Interesting to compare how much more involved Congress was then, than now, -- Geo Swan 21:02, 11 February 2007 (UTC)

Wikipedia has some more about that, here. --Uncle Ed 00:07, 13 February 2007 (UTC)

I have just come across this Wikipedia article Supremacy Clause "Article VI, Paragraph 2 of the United States Constitution is known as the Supremacy Clause", and as no one has come back on this issue, I have removed the following text from the article because it does not cite its sources from some quite complicated legal arguments:

There are two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category could exist without violating the Geneva Conventions or whether the category should exist (that is, whether it is desirable from the point of view of U.S. interests). An equally important issue, however, is whether this category actually existed with the force of law during the five years in which it was an artifact of Bush administration policy, rather than congressional statute. Article I, Section 8 of the U.S. Constitution provides that Congress has the power to "make Rules concerning Captures on Land and Water" in times of war. Because of the separation of powers enacted by the Constitution, this article means that only Congress can make such rules, just as only Congress can declare war (a power granted in the same line of the Constitution). Thus, the question becomes whether creating a category of "unlawful combatants" or specifying ways in which such combatants are to be treated differently than others counts as a "rule concerning captures on land and water." If so, then under the Constitution, the executive branch of government, including the President and the Pentagon, would lack the authority to issue orders that create or define the treatment of "unlawful combatants." By the same token, the judicial branch of government — including the Supreme Court — may be unable to create such a category through its decisions if the category does not already exist in statutory law.

Furthermore, Congress has been determined to lack the ability to delegate its proper authority to other branches. Therefore, it may be the case that Congress cannot even delegate to the President the power to make rules concerning wartime prisoners, although his status as commander-in-chief may make such delegation more constitutionally acceptable in this particular case.

However, David B. Rivkin Jr. and Lee A. Casey, former US Justice Department lawyers, wrote:

Before the 1970s, the category of unlawful enemy combatant was widely understood and accepted as a critical part of the laws of war. Such individuals do not fight on behalf of sovereign states, have no regular and transparent command structure, do not wear uniforms, do not carry their arms openly and do not obey the laws of war. As a result, they present a particularly dangerous threat to civil society in general and the civilian population in particular. To deter this type of illegitimate, asymmetric warfare, unlawful combatants have historically been denied the rights of prisoners of war and could be severely punished after the most abbreviated of proceedings ( The Gitmo decision, part 1 David B. Rivkin Jr. and Lee A. Casey The Washington Times July 11, 2006).

I have left the first two sentences of the above in the article as an introduction to the section:

There are two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category could exist without violating the Geneva Conventions or whether the category should exist (that is, whether it is desirable from the point of view of U.S. interests).

--Philip Baird Shearer 12:46, 27 April 2007 (UTC)

Carceleros de Guantánamo

What on earth is that a picture of? Needs a better caption. KristoferM 02:28, 17 March 2007 (UTC)

Italian military internee in Germany 1943

In September 1943, around 600.000 Italians were taken prisoners by Germany after Italy signed agreements with the allies. While they were first regarded as POWs, a decree by Hitler in September 1943 coined the term "military internee" for these people, which officially removed their POW status, thus stripping them from the protection by the Geneva convention. There is a short article in the German Wikipedia at http://de.wikipedia.org/wiki/Militärinternierter .

Though the terminology is different, I think that there should be a reference to this fact in the article, as the effect of "unlawful combatant" and "military internee" is similar.

It might also be interesting to point out that the status of "military internee" was declared illegal directly after the war, making the Italian prisoners POWs again and thus excluding them from any "compensations" (pension, reparations etc.) payed by Germany or Italy, as these normally only cover civilian damages. The latest confirmation of this policy was by the German Constitutional Court in 2004 (BVerfG, 2 BvR 1379/01 of 28.6.2004) on the question if the Italian POWs will get compensated by the "Stiftung Erinnerung, Verantwortung und Zukunft" for their work in German companies during the war. --Schoelle 15:58, 29 March 2007 (UTC)

Monday 4 June 2007 Hamdan Guantanamo charges dismissed by military judge

In an article in the Independent 6/6 2007 titled Guantanamo charges dismissed by judges and sourced to Associated Press it was written:

In back-to-back arraignments for Canadian Omar Khadr and Salim Ahmed Hamdan, of Yemen, the US military's cases against the alleged al Qaida figures dissolved because, the two judges said, the government had failed to establish jurisdiction. ... Hamdan's military judge, Navy Captain Keith Allred, said the detainee is "not subject to this commission" under legislation passed by Congress and signed by President George Bush last year. ... The judges agreed that there was one problem they could not resolve - the new legislation says only "unlawful enemy combatants" can be tried by the military trials, known as commissions. But Khadr and Hamdan had previously been identified by military panels only as enemy combatants, lacking the critical "unlawful" designation.... The chief of military defence attorneys at Guantanamo Bay, Marine Colonel Dwight Sullivan, said the dismissal of the case against Khadr could spell the end of the war-crimes trial system hurriedly set up last year by Congress and Bush after the Supreme Court threw out the previous system. But legal experts said Brownback apparently left open the door for a retrial for Khadr, and that the Defence Department can possibly fix the jurisdictional problem by holding new "combat status review tribunals" for any detainee headed to trial.

The information in this article or similar articles in other papers needs to be added to the article. --Philip Baird Shearer 21:49, 6 June 2007 (UTC)

Unlawful enemy combatant be merged into this article

Yes Unlawful enemy combatant should be merged into this article --Philip Baird Shearer 08:22, 9 June 2007 (UTC)

I disagree in the strongest possible terms. "Unlawful enemy combatant" has a specific meaning, as used in the Military Commissions Act of 2006, just as "enemy combatant" has a different specific meaning, as used in the documents that framed the Combatant Status Review Tribunals. IMO it is essential that any of these outwardly similar terms for which there is formal backup for a definition must have their own article.

In my opinion it is a disservice for our readers to allow ourselves to make the same mistakes that US spokesmen make, in conflating these terms, which have important differences. If US spokesmen hadn't successfully conflated these terms in the minds US legislators, the embarrassment of dismissing all charges against Khadr and Hamdan wouldn't have happened. How could it possibly be in our readers interests to emulate their mistakes?

Cheers! Geo Swan 11:19, 9 June 2007 (UTC)

I respect your comments especially since you've done so much work on the Guantanamo related articles. However I think you're bit over the top in the second paragraph. This isn't about politics. It's about making a useful, accurate and efficient encyclopedia. Now, as a compromise, why not merge with Enemy combatant which is already established and which already points out the differences in the lawful/unlawful distinction.

My goal is to prevent a reader from jumping back and forth among articles which would contain much of the same material. Maybe I am naive, but I think we can all write a single article which is NPOV and useful.

Have a great day! JodyB_talk 15:13, 9 June 2007 (UTC)

To keep the conversation in one place here is some text from Talk:unlawful enemy combatant#Rewrite / merger

[Merge is] Fine by me. Actually, there are several articles that could probably be brought together into a single more comprehensive article. I'll try and round up the names. JodyB_talk 13:35, 9 June 2007 (UTC)

How about merging all these:

My reasoning is that there are major commonalities among the articles and separate sections could delineate the differences. I think we would be left with a more exhaustive single article. Just my thoughts. JodyB_talk 13:42, 9 June 2007 (UTC)

JodyB, you have put your finger on my second biggest frustration with the wikipedia -- namely, that there are several different incompatible underlying design philosophies held by wikipedian -- but no one ever engages in a constructive dialogue over their respective strengths and weaknesses. No offense, but your comment is written from the point of view that one big article is, naturally, better than several smaller, focussed articles.

By doing so you overlook several of the main strengths a digital encyclopedia, like the wikipedia, has over an old-fashioned paper encyclopedia. Paper documents are inherently linear, one-dimensional, whose inherent structure presssures readers to read from the start to the finish. The authors of a paper encyclopedia are forced to be martinets. They are forced to impose their path through the inherently multidimensional network of human knowledge by paper's inherently linearity.

A digital encyclopedia can enable readers to navigate their own path through the multi-dimensional network, to find the path that best suits their needs.

Excessive merging squanders this potential advantage.

Another potential strength the wikipedia has over paper documents, and over the original http based world-wide-web, is that the wikipedia's links are bidirectional. links on the world-wide-web are unidirectional. Paper documents can say, "see page 100". But there is no way, if you look at page 100, that you can learn what pages sent the reader there.

Maybe you don't make much use of the "what links here" button the wikipedia provides readers. Let me encourage you to do so. It is an amazingly powerful feature. But it is feature whose amazing power is quickly eroded when articles aren't small and focussed, and address just one thing. It is a feature whose amazing power is trivialized when articles are merged, so they cover multiple topics. If another article links to some big article, does it link there because the other article touches on the topic you are interested in? Or does it link there because it touches on some other topic that got merged in there.

That these articles might touch on some of the same ideas, like, for instance, the Geneva Conventions, and the laws of war, is not a problem. The articles about the chemical elements are going to all go over some of the same material. But it would be absurd to suggest that all the articles about the individual chemical elements be merged into one article because of the repeated material in those article.

Cheers! Geo Swan 02:20, 12 June 2007 (UTC)

I do not think that Lawful combatants and Disarmed Enemy Forces should be merged. Don't know about Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism I will have to think about that one. --Philip Baird Shearer 14:25, 9 June 2007 (UTC)

I'm ok with that although after seeing Enemy combatant I think that may be the place to go for all. Please see the comments above to Swan. JodyB_talk 15:13, 9 June 2007 (UTC)

I don't think enemy combatant should be merged into this article because under normal usage (Not under the current US administration's usage) a enemy combatant (just like a friendly combatant) can be either a privileged or unprivileged combatant. For example in the Falklands war for the British the Argentinian armed forces were enemy combatants but they were not unlawful enemy combatants. --Philip Baird Shearer 19:06, 9 June 2007 (UTC)

For the sake of clarity, user friendliness, accessibility, etc: Enemy combatant, Unlawful enemy combatant and the other closely related topics are all very closely related. Having them fragmented like this is extremely cumbersome. I say this as an experienced user here, but also as an interested reader trying to learn something about this topic. I'm finding it really troublesome having multiple stubby articles rather than one article that could highlight the fine distinctions brought up on this talk page. These articles will never reach good or featured status as fragments. —Gaff ^ταλκ 21:56, 11 June 2007 (UTC)

These terms are just closely related enough to screw people up. Conflating the terms enemy combatant -- what the Combatant Status Review Tribunals were allowed to determine, and lawful/unlawful enemy combatant -- what an AR 190-8 Tribunal is authorized to determine is precisely how the USA screwed up, and got the point of Brownback and Allred throwing out all the charges.

Einstein said, "Everything should be as simple as possible, but no simpler". Conflating these outwardly related terms might seem clearer, more user-friendly, more accessible -- at the cost of deceiving our readers. There is no question in my mind that if apparent clarity can only be acheived at the cost of deceiving our readers, then the cost is too high.

"Unlawful enemy combatant" was nominated for deletion about a year ago. And that {{afd}} succeeded. I thought the way these two phrases, with extremely important distinctions were conflated, by those who drafted the Military Commissions Act of 2006, and how that conflation lead to all charges being dismissed unequivocally demonstrated that those who argued the distinction between the two terms were completely and utterly mistaken.

If the articles were merged, almost all of the omnibus article would be about how the two phrases differed. Far better in that case to leave them as distinct articles.

Cheers! Geo Swan 01:47, 12 June 2007 (UTC)

“

When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master - that's all.' — Through The Looking Glass by Lewis Carroll

”

All the kings horses — If one can have an "unlawful enemy combatant" one can also have an "unlawful friendly combatant". It really depends if one see "Unlawful Enemy Combatant" to be a United States legal term or if it is a descriptive name. I see it first and foremost as a descriptive name that could be used to describe any unlawful combatant (like a mercenary) who "take part in the hostilities" for an enemy, not specifically as a US legal term. Just because, for initial political convenience/propaganda, the US government has got itself confused, there is no reason why Wikipedia articles which ought to have a global scope should perpetuate that muddle. If the US government had not tried to sidestep its obligations under GCIII, art. 5 and had held "competent tribunal[s]" to determine the status of those held as captured enemy combatants (POWs) to decide if they were lawful or unlawful combatants, (instead of trying to pre-judge them by defining their status using a phrase forge and spin reminiscent of Humpty Dumpty's Jabberwocky), then the US government would not have needed to assaulted/mugged the English language in a way that is far to common in such circles. --Philip Baird Shearer 09:42, 12 June 2007 (UTC)

I agree with the general idea of symmetry in concepts, as well as the particular point here, that there are, at least in the minds of the government and military establishment of the USA, both explicitly identified "unlawful enemy combatants" and implicitly recognized and supported "unlawful friendly combatants," the latter being the forces of private military corporations such as Blackwater and DynCorp. Merging the articles makes sense, but the merged article needs to retain a distinction between allied and enemy "unlawful combatants." It would also be helpful to provide examples of the application of the concept "unlawful combatants" to situations other than the Bush Administration's Global War on Terror. --Sentience 04:25, 12 July 2007 (UTC)

Excuse me. I can't really be sure I understand your comment. This fragment alarms me: "...there are, at least in the minds of the government and military establishment of the USA" Surely you understand that this project is the wikipedia, an international project that aims to be neutral -- it is not meant to be the USGov-o-pedia.

You didn't address any of the weaknesses of merging that some of us have suggested. I sure hope you read them. If you haven't would you please do so?

Cheers! Geo Swan 02:50, 16 July 2007 (UTC)

I support this merge, but none of the others suggested. As I see it, the trouble with the U.S. having "conflated these terms" applies more to the term enemy combatant which should remain separate. The difference between unlawful combatant and unlawful enemy combatant isn't something I recall anyone being confused about.
-- Randy2063 02:23, 17 July 2007 (UTC)

That is my position as well. --Philip Baird Shearer 07:25, 17 July 2007 (UTC)

I support merging Unlawful Combatant with Unlawful Enemy Combatant. --Bren 09:27, 30 August 2007 (UTC)

A history lesson

Unlawful enemy combatant was the subject of an afd, and deleted. Back in April 2006 most respondents to the {{afd}} could not understand how an unlawful combatant differed from an unlawful enemy combatant. That unlawful enemy combatant was used in the Military Commissions Act of 2006 I believe shows that the respondents in the {{afd}} guessed wrong.

I think the {{afd}} amply demonstrates that the original respondents were confused over the difference between the two terms.

Cheers! Geo Swan 22:41, 30 August 2007 (UTC)

Regarding: "Now, as a compromise, why not merge with Enemy combatant" (quote from JodyB) - When I was listening to NPR the other day, they said there is a huge difference between 'unlawful enemy combatant' and 'enemy combatant'. They explained that 'unlawful' is only applied to persons who have done something unlawful, such as belonging to a terrorist group, committing terrorism, or other such unlawful acts. When Congress passed a law setting up Military tribunals for some Guantanamo detainees, it only said "unlawful enemy combatants" could be tried. Omar Khadr, who was labeled an "enemy combatant," is unable to have a Military tribunal. Khadr is appealing to the U.S. Court of Military Commission Review, so he can be labeled "unlawful," as the government accuses him of being a member of al Qaida, which implies he is unlawful. I’m against any merge between this article and 'enemy combatant.' —Christopher Mann McKay^talk 23:03, 30 August 2007 (UTC)

WRT the removal of the overview heading... I have no strong opinions, today, as to whether the article needs an overview section. But I wonder whether there might be value in putting a __TOC__ after the first paragraph... Putting the Table of Contents on the first screen gives new readers a good idea of what the article contains.

Cheers! Geo Swan 17:21, 26 September 2007 (UTC)

unmerge

We have had quite a few discussions of merging various related terms. Some of us thought the terms were synonyms.

None of us are lawyers. I am sure we all engaged in these discussions in good faith.

But, I think this article explains the difference between unlawful combatant, unlawful enemy combatant, and unprivileged belligerents.

"Military commissions review court misconstruing 'unlawful combatant'". The Jurist. Tuesday, September 25, 2007. Retrieved 2007-09-26. {{cite news}}: Check date values in: |date= (help)

I thought I would give everyone a heads-up over this article. I think we should un-redirect unprivileged belligerent, based on the information in this article.

Cheers! Geo Swan 18:41, 26 September 2007 (UTC)

I don't think so. That article is more about disputing whether Khadr committed a "crime" rather than that the terms mean different things.

The writer comes close to admitting they're the same thing. He's simply trying to change the terms so that the word "unlawful" isn't part of the debate.

-- Randy2063 21:04, 26 September 2007 (UTC)

Hmmm. The Rashomon effect? Geo Swan 02:33, 27 September 2007 (UTC)

Exactly! I wonder if that's common with things written by lawyers. -- Randy2063 00:50, 28 September 2007 (UTC)

Can you think of a situation were a civilian has taken a direct part in the hostilities but has not committed a crime? (As explained in the ICRC commentaries this does not involve taking an indirect part in hostilities, gathering and transmitting military information, helping in the transportation of arms and munitions, provision of supplies etc.) I suppose that they might be able to argue self defence if they shot at an enemy soldier, but unless they are already covered by GCIII Article 4.6 "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." other wise they could be done for conspiracy to commit murder if nothing else. Also what about The relevance of IHL in the context of terrorism official statement by the ICRC 21 July 2005. "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action". --Philip Baird Shearer (talk) 12:54, 26 November 2007 (UTC)

Criticisms Outside of Criticism Section

Moved discussion here from less appropriate location.Nomen Nescio^{Gnothi seauton} 07:25, 23 January 2008 (UTC)

In most other articles, thh main body of text contains a quote from the person or organization which is responsible for the action, as well as quotes from credible sources, as well as context. This article starts out with subtle criticisms, without even mentioning the "official line", and puts supposition before the statements by CIA officials. The article also begins by describing the "Enhanced Interrogation Techniques" as a term used specifically By the current (Bush) administration, and begins not by describing the techniques currently used by the CIA, but with 2 large sections on other programs. The bit in the "Legality" section also says that the Geneva Convention applies to all the prisoners who are being interrogated using the "enhanced" techniques, while this is at best unlikely, and probably not true (refer to the article on the Geneva Convention, and especially the requirements of a regular uniform to see why.) Many of the sections in this article are subtle, (or less the subtle) criticisms of the technique, and should therefore be moved to the corresponding (Criticisms,) section, so as to distinguish suppositions, editorials and negative perceptions from known facts and credible testimony. 70.70.219.147 (talk) 10:27, 8 January 2008 (UTC)

Interesting, we have a US Supreme Court stating that the GC apply to all detainees in the WoT, yet you claim the GC do not apply. Stunning way of ignoring a judicial ruling on this matter.Nomen Nescio^{Gnothi seauton}

This is only partially true, as stated in Article 5 (of the Geneva Convention): "Should any doubt arise as to whether persons ... belong to any of the categories in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." From this extract we can see that if any competent US or International court (military or civilian,) determines that a prisoner is not a protected person (as defined by article 4,) they are not guaranteed the treatment specified under the Geneva Convention. This exemption from coverage applies not only to "illegal combatants" (whom, I should point out do not abide by the convention themselves, thereby implying they do not consider themselves to be subject to the convention, and are therefore unprotected,) but also to spies (who are not wearing a regular uniform).

You are wrong on two important points:

the definition of a prisoner of war is given in the Hague Convention (IV) of 18 October 1907, chapter 1, The Qualifications of Belligerents, Article 1 [4].
- There is not "requirement of a regular uniform". In fact, most so-called "unlawful combatants" fit the requirements.
- Some might not have respected the laws of war, but this remains to be proved and should yield a trial. Since a number of the people arbitrarily detained and tortured by the USA have not been charged with specific offences, this cannot be said to be a generally applicable criterion.
- A person not enjoying the protection of the Hague Convention and the Geneva Convention does not mean that the person has no rights and no protection whatsoever. It means that the person can be charged with offences such as murder. Arbitrary detention and torture are in no case on the table.
The Nuremberg Trials have clearly stated that a party not being signatory or not abiding by conventions does not autorise inhumane behaviour on the part of another party. Rama (talk) 10:33, 16 January 2008 (UTC)

In order to clarify what I am objecting to, I will more clearly define it:

This article states "the Third Geneva Convention (regarding the treatment of prisoners) applies to all detainees in the war on terrorism and as such the Military Tribunals used to try suspects were violating the law."; which is clearly mistaken, as the Third Geneva Convention specifically describes protected persons as "4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:

   * that of being commanded by a person responsible for his subordinates;
   * that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
   * that of carrying arms openly;
   * that of conducting their operations in accordance with the laws and customs of war."

This clearly does not apply to the insurgents or whatever you would like to call them in Iraq and Afghanistan, as is indicated by the Wikipedia article on the Third Geneva Convention which states:

"The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the interpretation of "unlawful combatants" by the George W. Bush administration. The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment."

I think that it is obvious that these two articles are conflicting, and that the "Enhanced Interrogation" article is the one with less support, and it should be corrected to reflect this. I agree with you in that someone who is an "unlawful combatant" has not lost all of their rights; however this article mistakenly implies that they are protected persons under the Geneva Convention, which is clearly not the case.

In addition, one does not have to be charged with anything in order to not be protected by the Geneva Convention, one simply must be deemed to be an illegal combatant by a competent court, whether it be civilian or military (according to the convention itself.)

By regular uniform I meant a fixed distinctive sign, and I am sorry if my lack of clarity caused any confusion. There are many issues which I have raised in the initial post which have not been disputed, (this does not include, of course the section on illegal combatants which is clearly controversial,) but are not reflected in the article, may I take this as permission to edit the article to eliminate those issues? 70.70.219.147 (talk) 14:49, 16 January 2008 (UTC)

Some of the Iraqi resistance fighters certainly can be considered militias, and in fact US forces have negotiated with them on such terms.

In any case, the point is that the alternative is

either treat people as prisoners of war
either treat them as criminals, i.e. charge them and try them.

There is no "deny them of human rights, detain them arbitrarily and torture them" option.

I think that the focus on granting Guantanamo detainees the status of war prisoners rather than accused criminals stems from

the phrase "war on Terror" and the war rhetoric of the Bush administration
the fact that the USA has not charged most of the Guantanamo detainees; in fact, some of these people have later been surrendered to law-abiding countries, where they undertook regular criminal process, and were either duly sentences, or in some cases declared innocent.

I would understand the phrase "the Geneva convention applies" as to mean that a term of the alternative has to be chosen (which the Bush administration clearly does not), rather than to mean that the people arrested automatically should be granted the status of prisoners of war. That being said, they probably should: since they have not been formerly accused and are not given trials, the Geneva Conventions grant them the default status of prisoners of war. Rama (talk) 15:14, 16 January 2008 (UTC)

First off, I am not even a US citizen, so telling me what to do will not influence what interrogation techniques are used, and secondly, while you make persuasive philosophical arguments, this article must be based on fact, and the Geneva Convention stipulates that they need not be put on trial for any crime to be declared unprotected by the Geneva Convention, merely have their status determined by a competent court. While it would grant closure to charge these people, US law does not apply, nor does Cuban or any other national law, so if you can cite any law at all which protects these people, please cite a source and add it to the article. I have personal feelings about how these people should and should not be treated, as I can see that you do, however, this article is not about our philosophical positions, and using phrases such as "[t]here is no "deny them of human rights, detain them arbitrarily and torture them" option", and "rhetoric of the Bush administration" seems more like biased personal opinions than fact-based research, as there is no evidence, (which I have seen,) to back these claims up. 70.70.219.147 (talk) 16:11, 16 January 2008 (UTC)

One more time:

either "Geneva Conventions" means "be either prisoner of war or trialed as a criminal in a court", in which case everybody in protected by the Geneva Conventions
either "Geneva Conventions" means "be considered a prisoner of war". The Geneva convention grant this status in case of doubt, which is certainly the case since the people in Guantanamo (and other US-administrated concentration camps) have not been charged.

The USA could easily surrender these prisoners to their native countries (if they are nor persecuted there), or to countries in which they are wanted (if any), or trial themselves. Arguing that the situation is inextricable because of legal technicalities is a moot point. This is the effect intended by the Bush administration, and they are actually having moderate success in hindering the US justice itself. Rama (talk) 17:15, 16 January 2008 (UTC)

Again, you need not charge someone with any crime in order to have their status determined to be unprotected by the Geneva Convention, they must only be shown to have not complied with the requirements of the Geneva Convention before a competent court. If they are so unprotected, then there is no statute which dictates that they may not be held without charges. Most countries have laws which require that someone be charged within __ hours of arrest, or released, but the prisoners at the Guantanamo Bay facility simply have no such rights under any laws which I know of. They simply have no right to freedom (which I am aware of,) if they are unprotected by the Geneva Convention. In addition, it is foolish to think that all (or even most,) countries treat prisoners better than the prisoners at Guantanamo Bay are treated, and that sending them back to their home country would ensure better treatment, take the cases of Maher Arar and Abdullah Almalki as examples of that.70.70.219.147 (talk) 18:45, 16 January 2008 (UTC)

As far as I know, in a USAryan-style legal system, you have something called habeas corpus which says that you have to formally charge people. If the person is not charged, under the Geneva Conventions, he enjoys the status of war prisoner; if he is, he must be trialed. There is no such thing as "unprotected by the Geneva Convention" in the sense that he is neither a prisoner of war, nor under trial.

The Guantanamo concentration camp is a US military base. The people are held there because it can be argued that the legal framework is not defined (which is contested by US judges anyway). If the Bush administration was of good faith, it would simply have the prisoners transferred on US soil where such ambiguities cannot be argued to exist. But in general, the notion that some people could have all their rights removed is ludicrous.

The standard of treatment are a well-known fact, and one of the major criticism against the Bush administration is precisely exploiting this fact by willingly and knowingly surrendering prisoners to countries which torture them -- again in contradiction of the spirit and letter of international law. Here again, the USA could surrender their prisoners to countries of the European Union, for instance.

Presenting the present US administration as being unwillingly trapped in an absurd legal situation with no way out is really twisting the facts beyond recognition. Rama (talk) 19:45, 16 January 2008 (UTC)

I never said that this is any sort of accident, far from that, it is a use of loopholes and gaps in the law, well executed by people well versed in laws and treaties in order to detain suspects. However, they have used these laws (or lack thereof) effectively in a way that prevents any of the prisoners from conclusively proving they have a right to habeas corpus. There is, strictly speaking, no international law, (again, that I know of,) which states that everyone has a right to be released if no charges are laid within a given amount of time, these do exist in national laws, constitutions and charters, however, these prisoners are not on US or Cuban or any other soil whose laws they could use to claim the right to habeas corpus. Therefore, although they may be treated badly and deprived of any freedom or liberty, they are not subject to any law which dictates that they may not be held without charges and treated as they are being treated, in essence, they are 'illegal combatants' (or whatever you would like to call them,) being confined, and although there are no charges pending as of yet, holding them in captivity does not violate any laws. My purpose in discussing this is not to justify anyone's actions, or apologize for anyone, it is merely to clarify exactly what is occuring, which is the use of loopholes by some to detain 'illegal combatants' indefinitely. 70.70.219.147 (talk) 23:42, 16 January 2008 (UTC)

The notion of "illegal combatant" is a fantasy of the Bush administration; it has no legal value.

These prisoners are in US custody. As such, US law applies. The idea that there are loopholes is argued by the Bush administration, but this is contested by actual judges and lawyers. It is certainly not a fact. There cannot by a place where no juridiction applies. Rama (talk) 00:41, 17 January 2008 (UTC)

Alternatively, the question of juridiction is irrelevant, since the Hague de Geneva conventions regulate the behaviour of armed forces. From this point of view, in this case, the conventions stipulate that the US force must either consider a prisoner to be a captured enemy soldier, or to be a civilian.

In the first case, the prisoner is a prisoner of war. He is entitled to certain priviledges such as visits by the Red Cross or communications with relatives; he shall not be isolated without reason, and shall not be tortured. He cannot be trialed for his actions as a soldier, except for specific cases like Crime against Humanity.
In the second case, the prisoner is a civilian. It is the responsability of the occupying power to care for him. He can be charged with any civil offence and is subject to the normal rule of law. Failure to provide him a fair trail is a failure on the part of the occupying power.

Since the Guantanamo concentration camp is in the power of the US military, it is the responsability of the US military to either transfer the prisoners to a place where they can obtain a fair trial (like France or the United Kingdom...); or allow them visits by the Red Cross, and contact with their families. In no case is torture an option. There is no loophole here, only politicians, officers and soldiers without honour. Rama (talk) 01:05, 17 January 2008 (UTC)

Your first claim is plainly untrue:

The Geneva Conventions specify the treatment of people by a signatory, not only the armed forces of the signatory;

Secondly a person may be protected or unprotected according to the Geneva Convention regardless of whether they are soldiers or not, the Third Geneva Convention deals with the treatment of Prisoners of War, and the Fourth with Civilians; a person may not qualify for protection under the Third or Fourth Geneva Convention

The following quote was taken from a Wikipedia Legal Entry "Either U.S. citizenship or court jurisdiction is necessary for [the invocation of habeas corpus], ... [a]ccording to the U.S. treaty with Cuba over Guantanamo Bay... Cuba has "ultimate sovereignty.""

I would also ask you to stop using the term 'concentration camp', first off, you diminish the suffering of those who have suffered in them, as the concentration camps are centers for mass genocide, slave labor and cruel medical experiments on a horribly large scale, not at all comparable to the imprisonment of less than 500 people captured in what was at least suspicious circumstances, and at worst with blood on their hands, and subjected to no life-threatening procedures.

Furthermore, we are not discussing responsibility here, we are discussing law, and your snide accusations have made it plain that you are not willing to have civilized discussion based on facts and evidence rather than creed and closely held political beliefs. 70.70.219.147 (talk) 01:31, 17 January 2008 (UTC)

The signatories are represented foremost by their armed forces, which are (supposedly) under their control; so the conventions regulate the armed forces (among other things) and my statement is correct (I did not say "only the armed forces". Check the notion of set.). Of course, in the case of the Guantanamo system, a long series of failure and disfunctions exists involving the CIA, some of the judiciary and a good part of the senior executive.

I fail to see how the Geneva Conventions have provisions for not covering people. People are either regular combattants or not. The 3rd conventions applies in the former, the 4 in the later case. I do not understand what "not covered by the Geneva Conventions" could mean, and whatever it is, it is addressed by the jurisprudence of the Nuremberg Trial.

I will use "concentration camp" in the sense of "place where a large number of people are illegally detained" however I please. You fail to distinguish between a concentration camp and an extermination camp; apparently you also fail to keep up with the news, in saying that prisoners in Guantanamo are "subjected to no life-threatening procedures"; for your information, several have died.

I could return your compliment in saying that I see little more in your argumentation than "the law does not apply because it does not apply, thus it does not apply". You fail to take into account the spirit of the law, as illustrated by the Nuremberg trial; the letter of the law, since you fail to provide citations in the Geneva conventions for where it would not apply; and you fail to take into account the ruling of US judges. And you utterly fail to address the issue of torture. You are free to hold whatever bizarre or criminal opinion on the matter personally, but an affirmation that the arbitrary detentions and torture by the Bush administration are legal is not going to become a truth because of that. Rama (talk) 02:00, 17 January 2008 (UTC)

We seem to like quotes here, so let's get some more, first with the Third Geneva Convention:

"* Article 4 defines prisoners of war to include:

         o 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
         o 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
               + that of being commanded by a person responsible for his subordinates;
               + that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
               + that of carrying arms openly;
               + that of conducting their operations in accordance with the laws and customs of war.
         o 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
         o 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
         o 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
         o 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
         o 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy."

And Now from the Fourth Geneva Convention:

"Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention."

From these quotes it is plain that the "unlawful combatants" are not POWs, and the following applies to them: "a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention." So they are not POWs and have forfeited their rights. All these quotes are from Wikipedia, and are easily obtainable if you search for them.70.70.219.147 (talk) 03:17, 17 January 2008 (UTC)

You seem strangely focused on the notion of Prisoner of War. For a start, the clause against spies and saboteurs does absolutely not negate the status of Prisoner of War. It merely applies restrictions to the right of communications. In no case does this warrant for humiliating treatment or torture. For the respect of the Geneva conventions by the opposing party, I refer you to the Nuremberg Trial jurisprudence.

I am open to the idea that these people are not Prisoners of War (In fact it is probably better for them not to be, as a prisoner of war can be held until the end of the conflict, which is so ill-defined that this would probably amount to de facto life sentences). The problem is that if we assume that the United States has the custody of these prisoners, of what are they accused? Where and when will they be judged? Why so many of them, once surrendered to foreign democratic and law-abiding countries, turn out to get sentences in the 10-year range, or even be cleared of all charges ?

And most important, why are these people, whatever their status, subjet to torture ? (which is the subject of the article)

The so-called "lawlessness" of Guantanamo is a red herring: the people who are there were brought from other places where their legal status was clear to there. This is obstruction of justice. Furthermore, the personnel of the Guantanamo concentration camp is subject to US military regulations; it is the duty of the personnel to protect the people in their custody against torture and inhumane treatment.

Once again, you either have prisoners of war protected by the Third convention, or civilians protected by the Fourth. And you also have US law and military regulations which prohibits such crimes. Rama (talk) 09:20, 17 January 2008 (UTC)

Arbitrary break 1

I thought that the quote from my last post would show how these prisoners are not POWs, but if I did not make it clear, here it is: the prisoners at Guantanamo Bay are not "o 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces," or "o 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions: that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I); that of carrying arms openly; that of conducting their operations in accordance with the laws and customs of war." or "o 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." or "o 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support." or "o 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law." or even "o 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." If one does not comply with any of the requirements of being a POW, one is obviously not a POW, and since I have listed every single possible requirement for being a POW (listed in the Geneva Conventions,) and these people comply with none of them, they are not POWs.

Secondly, you seem to believe that the sentence one recieves is somehow in proportion to the atrocities or acts they have committed, and you reference the trials at Nuremberg often, so perhaps using it as a reference will give us some idea of what a 10 year sentence really means. Albert Speer received a 20 year sentence at Nuremberg, (of which he served less than 15 years,) and he was at the very least responsible for slave labor involving hundreds of thousands of workers who were systematically worked and starved to death, all while knowing that he was an integral part of a government intent on slaughtering as many Jewish and minority people as possible. Alfried Krupp (an ardent Nazi,) received no sentence at a subsequent Nuremberg trial, because, even though it is well documented that he was the head (and owner,) of a company which used tens of thousands of slaves for labor, (he was a vigorous supporter of this,) and treated these slaves worse even than the SS, from which he received letters recommending that he (Alfried,) increase their rations, and was subsequently convicted of the use of slave labor, his conviction was overturned by a Commissioner in Germany for no legitimate reason. Another factor to consider in sentencing is that no matter how many separate first-degree murders are committed in separate acts in a country like (my own,) Canada, one will never receive more than a 25 year sentence (the same as for one first-degree murder,) likely with parole in 15, as sentencing here is not consecutive. These examples simply go to show how (relatively unbiased) courts can render judgments which are not proportional to the number or ramifications of crimes committed. In addition, I would not regard the Nuremberg trials as a 'gold-standard' of sorts, because of how flawed they were, and how much has changed in the last 60 years.

I initially argued against this article's having what I perceived to be criticisms outside the criticisms section, (hence the heading,) however no one disputed that, and I made a mention of the Geneva Convention's application to these prisoners, mentioned in the "Legality" section which is disputed (in many other articles,) and should therefore be included in the criticisms section, as it is not a known fact. This, however, brought up a point which many people (legitimately) take different sides on, and many began to argue that the Geneva Convention does apply, which is obviously controversial, therefore proving my point that it should be in the criticisms section, not in a fact-based one; however, no one has actually commented on whether it should be moved, or in any way addressed the substance of my initial post. In addition, you have argued that these people are protected by the Geneva Convention, which would strictly prohibit interrogations, and therefore any "enhanced" techniques, and I have only been arguing that since the Convention does not apply, it has no impact on the treatment of these people.

It is of no (legal) importance how the prisoners came to be where they are, we are discussing what their current legal situation is, not what it has been in the past, and if you can find a statute which would allow someone to be charged with obstruction of justice, I invite you to post it on the appropriate page (and here, for it would be of interest to me.) If you can find the specific military rules being broken here, please post them as well, as I am certain they would be of interest not only to myself and others, but more importantly to the JAG office. Your argument here (as in many other places) seems to be largely morally based, and I do not dispute that you are morally repulsed by many things, however, this article is not about what you or I like and support, it is strictly about facts.

In what is, I am sure, is becoming a tiring repetition for all those reading this, I will again state that the Geneva Convention does not require everyone to be classified as either a protected POW or a protected civilian, one may simply be "a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention"; this person is simply not a protected person of any sort (i.e. not protected by the 4th or 5th Geneva Convention,) and neither a POW or protected civilian. This is because according to the convention, you may be a POW or a protected civilian, but you may also not qualify for either designation. 70.70.219.147 (talk) 04:55, 18 January 2008 (UTC)

Some observations:

Regarding the GC, unless there has been a so-called competent tribunal every detainee is considered to be a prisoner of war.
To date there has been no hearing that under international law qualifies as competent tribunal, and as such ipso facto every detainee is still a POW.
Regardless of the actual status, every detainee, and I emphasis the word every, is protected by the GC, weither by article 3 or 4.
This article is not about the status of detainees. Please continue this debate at unlawful combatant.

RespectfullyNomen Nescio^{Gnothi seauton} 07:25, 18 January 2008 (UTC)

I am sorry to continue to deviate from the topic of the article, but shall continue to do so much to the chagrin of everyone but myself (with the exception of the last paragraph, which is quite relevant.)

It is commonly believed that a person is either a soldier or a civilian, which are both people protected by the convention, however, the Geneva Convention does not specifically state that all people fall into one of those two categories, it simply defines what the requirements to be in each. From this, we can see that you may be in one of those categories, but you may not qualify for either if you do not meet their respective standards. In fact, this circumstance is specifically addressed in the fourth Geneva Convention, where it states:

"Any person who has taken part in hostilities, who is not entitled to prisoner‑of‑war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention."

Article 5 I have already pasted numerous times on this page, and if you wish to refer to it, simply scroll up a bit, and article 75 is as follows: "Article 75 In no case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence, or of an order denying pardon or reprieve. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences."

Regardless, as stated in my last post, I simply wanted to bring up the fact that these points are controversial, and should not be in a fact-section of this article, rather, they should be in the criticisms section, and this is the third time that I restate that no one has actually addressed the substance of my first post, which is that there are Criticisms Outside the Criticisms Section, which I would like to move, but do not wish to do so before consulting every other person who might object to this edit. 70.70.219.147 (talk) 08:41, 18 January 2008 (UTC)

You are wrong: "Any person who has taken part in hostilities, who is not entitled to prisoner‑of‑war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention." You must know that not entitled to prisoner‑of‑war status is only applicable after a competent tribunal has made that determination. This has not happened and as such these detainees are considered POW untill a competent tribunal decides they are not entitled to prisoner‑of‑war status. This is the last comment on this off topic debate, once again I refer you to the appropriate article, more off topic discussion will be removed. Respectfully.Nomen Nescio^{Gnothi seauton} 09:02, 18 January 2008 (UTC)

The appropriate article is the one titled "Unlawful Combatant", and you have obviously not read any of the other posts in this area, as I specifically reference the statute concerning a competent tribunal many times in other posts, my point in this topic was not to discuss the exactly legalities of what is happening, although that is the turn this subject was taken in by others, it was to address the fact that (as I am stating this for the fourth time, the second in two posts,) there are disputed claims and quotes in the fact sections of this article, and they should be moved to a criticisms section so as to make it clear that they are not established facts. The reason I know that they are not established facts is because in the "Unlawful Combatant" article, it is made clear that the legal status of the prisoners is not certain, and that article is properly sourced, and has many reputable citations to support this, where as this article simply has unproven ideas, many of which have insufficient citations to prove that they are facts, and more properly belong in the criticisms section. To be more concise, this article's format is in direct conflict with facts stated in the "Unlawful Combatant" article, so while there are many valid opinions in this article, they should be reorganized in order to reflect their status as opinions and ideas rather than facts. 70.70.219.147 (talk) 09:25, 18 January 2008 (UTC)

You are again parroting the rhetoric sof the Bush administration, presenting as facts what is at best partisan and extremelly biased interpretations of law. The overwelming majority of jurists, the United Nations, and most law-abiding countries, regard these as inambiguous.

At best, it is the "legal status of the prisoners not being certain" which is an opinion. An opinion formulated by a tiny minority of people, who have direct interest in the matter, and whose appreciations of other topics in the recent years have been proved to be somewhat inaccurate. Rama (talk) 09:45, 18 January 2008 (UTC)

As it has been made abundantly clear by Nomen Nescio, this page is not for the discussion of legal categories; the page that directly deals with "unlawful combatants" has plenty of support for the idea that it is a real, and legal status, along with many well researched and written counterpoints, if you have any doubts or grievances with those claims, please discuss them on the "unlawful combatants" talk page. For the purposes of this article, which does not deal directly with the legal status of these prisoners, we should accept as fact what the "unlawful combatants" page, (which deals directly with the topic of legal status,) says, which is that their legal status is as of now disputed. In order to better reflect these doubts, I again move that we switch comments unsupported by indisputable evidence to categories such as one titled "criticisms". As for which view point I am parroting, (the use of that last word I find to be a personal attack which I do not believe I deserve,) I am making the argument of a skeptic, trying to make Wikipedia a base of unbiased and verifiable information, whereas it seems that you deal in nebulous concepts with no facts, no evidence, no citations, and ever-shifting objections. 70.70.219.147 (talk) 11:59, 18 January 2008 (UTC)

Sorry, but my understanding is that you are advocating presenting a very fringe point of view as equivalent in importance to the generally accepted point of view -- that of the Supreme Court of the USA, of the United Nations, of the Red Cross, of most democratic countries, and so on.

By this standard, we could say that the existence of homosexuals in Iran is a disputed fact. Rama (talk) 13:45, 18 January 2008 (UTC)

On the "Unlawful Combatant" page it states that the belief that "[t]he assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. And "in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms)". If you believe that these are fringe views, please dispute them on the appropriate talk page, otherwise please stop using broad, sweeping phrases like "my understanding is that you are advocating presenting a very fringe point of view", when you present no evidence or citations that support the notion that I am, in fact coming out of left field. Please read the "Unlawful Combatants" article before responding again, as it contains a lot of useful information on this subject, and address how we can rectify the disparities between these two pages, as that is the most important issue here. If you believe as I do that these two articles conflict indirectly, we should recategorize some sentences in this article to reflect the fact that this article deals with the subject of legal status only in passing, with no citations to support its notion of the legal status being certain, while the unlawful combatants article is quite thorough, and demonstrates that there are two sides to the argument. 70.70.219.147 (talk) 17:26, 18 January 2008 (UTC)

We clearly do not have the same understanding of Unlawful Combatant. The term does not refer to a legally defined status, like "prisoner of war" does, so it is not surprising that the phrase does appear, but there seem to be clear differences between the "Unlawful Combatant" of the Bush administration, and the "Unlawful Combatant" of civilised people:

the default status is prisoner of war.
the status of "Unlawful Combatant", amounting to "civilian accused of illegal activities", amounts to waiving someone's status as a prisoner of war. This can be done only by a proper court of justice, on firm legal basis, giving an opportunity to the defender accused to challenge the accusation.
no prisoner of war, internee or civilian can be subject to torture in any case.

This is quite different than the practice of abducting people on no precise charges, putting a bag on their heads and physically keeping away from judges to whom they can complain. That last status, that the Bush administration defends, in neither widely accepted nor controversial, but is deemed unacceptable by a large consensus among democratic institutions and countries. Rama (talk) 18:35, 18 January 2008 (UTC)

After reading this discussion page and going over the arguments, I think, that 70.70.219.147 has made a much more cogent case than either you (Rama) or Nomen Nescio has. The idea that the term “unlawful combatant” is some kind of Orwellian newspeak garbage made up since 9/11 certainly does not have any merit. An “unlawful combatant” is any individual engaging in hostilities who is not authorized by a recognized government authority to do so, plain and simple, and this has been the accepted legal definition of a UC since WW2 .

As one who has been personally involved in the capture of several “unlawful combatants”, POW status is not automatically conferred upon them. When a legitimate controlling legal authority is present, they are turned over to them (in this case the Afghani or Iraqi locals), if not they go into US military custody, but they most certainly do not enjoy the same POW status as I would if captured. A legal case might be made by the detainee that he is indeed a POW and gets all the goodies a POW is entitled to, but tough shit for them that no one in their right mind would entertain such an absurd argument. Happy Sapper. —Preceding unsigned comment added by Happy Sapper (talk • contribs) 20:55, 22 January 2008 (UTC)

Arbitrary break 2

I did not say "Orwellian newspeak garbage". I said that the term is not defined, and thus cannot refer to a legal status. An "illegal combatant" may have the status of Prisoner of War, or the status of civilian. He does not fall somewhere in between.

For the rest, military personnel is expected to behave according to the laws of customs of war, but an instance of behaviour cannot be a guarantee that the behaviour is legal. Given the recent record of the US military in this respect, this is especially true for them. Rama (talk) 21:07, 22 January 2008 (UTC)

But that’s horse patoey, the term is defined, and has been defined for since the SCOTUS ruled on Quirin. You are either grossly ignorant on this subject, or to blinded by you preconceptions to speak with any kind of informed authority.

Dealing with individuals, or more precisely animals, who fell feel to ignore any kind civil decorum, they are lucky to receive any kind of legal protection. I don’t have much sympathy for individuals who make it point to purposefully put so many civies in harms way. It’s a testament to our civility that they do receive some modest form of legal protections. Happy Sapper (talk) 21:20, 22 January 2008 (UTC)

If the term is defined in Geneva conventions, would you kindly provide a precise reference ?

As for calling enemies "animals", I am very sorry to have to inform you that your language if that of a war criminal. This is all the most egregious since the vast majority of the people labelled "unlawful combatants" by the USA have not been captured in combat and have never been charged formally with anything. Rama (talk) 21:45, 22 January 2008 (UTC)

Since you insist on citing it, it might be relevant to point that while the Geneva Convention does provide for POW status for are there provisions for irregular forces, they are only covered if they meet the following conditions: they are commanded by a person responsible for them; they wear some form of designative recognizable insignia, they carry their weapons openly, and that they conduct themselves in accordance to the laws of war. So where, exactly, are these shitbags covered in the Geneva Convention? I am just dying to know.

"War Criminal", oh, I’m sorry, I didn’t realize I caught you right after your ANSWER rally, but I suppose you have a point, animals are aggressive out of instinct not malevolence, so lets agree to call them subhumans. And, by the way, how in God’s name would you know how many UC’s have or have not been captured in combat, or did you learn that at your ANSWER rally as well? Happy Sapper (talk) 22:10, 22 January 2008 (UTC)

The status of Prisoner of War can be waived only by a competant tribunal. Invoking the condition "conduct themselves in accordance to the laws of war" to refuse protected status in illegal since Nuremberg trials. Note that I am not saying that the prisoners held by the USA necessarily have Prisoner of War status; most of them are probably civilians, protected under term IV of the Conventions.

Besides, I do not believe you when you claim to have served in the US military. While I am forced to accept that some US soldiers are war criminals, I expect them to engage in illegal behaviour after constructing elaborated mental illusions to cloud themselves from reality, like the "ticking bomb" scenario. Not calling people "animals" and "subhumans". Rama (talk) 22:24, 22 January 2008 (UTC)

Couple things here. You have argued in this thread that detainees qualify either as POWS (more Nescio I think) or that they qualify as civilians, covering yourself both ways. But the detainees are not members of the armed forces of a party to the Geneva Conventions, meaning that they are not entitled to protection under Article 4, and since they are actively engaging in hostilities they most certainly are not classified as civilians. This puts them in a limbo, and the rules regarding their detainment are way to bridge the contradiction. Contrary to your above statement nowhere in the Geneva Conventions is a detainee automatically assumed to be a POW

The status of detainee is made primarily at the tactical level by the MP’s they are transferred to usually with input from the after action report from the CO who initially detained them. IT does not take a “competent tribunal” to waive POW status if that status was never given in the first place. Most people don’t know about the hundred+ hours of instruction that are given on rules of engagement procedures and detainee handling. They, like you, naturally think the worse and do so because of ignorance or disinformation.

If it makes you feel better to think I am some kind of fraud then so be it, I am sure that more than one or have paraded themselves on the internet, but I could care less what you think. And as for animals vs subhuman vs “resistance” argument, have you ever seen fist hand what the guts of few 155’s packed into the saddlebags of a minibike can do to a produce market and all the happy unsuspecting shoppers? I don’t suppose you have but after seeing that once or twice, you might change your mind on the nature of the insurgency. Until that day comes, spare me your lectures. Happy Sapper (talk) 23:33, 22 January 2008 (UTC)

Arbitrary break 3

There are no limbos. They either are Prisoners of War of more or less regular forces, or civilians, possibly criminals, but in all cases entitled to a fair trial and protected against torture. Rama (talk) 23:41, 22 January 2008 (UTC)

Of course there is a limbo. They dont qualify as POW's and they dont qualify as civies. The might qualify as criminals, but fortunately until they step foot on US soil, US law does not protect them, that’s why Gitmo was such a shrewd move. While they are certainly protected against torture, they could just as easily be tried as war criminals and execute. The preferred route if you ask me.Happy Sapper (talk) 23:51, 22 January 2008 (UTC)

There's no requirement for a trial unless or until we were to execute them.

Even if the full GCs were to apply (they don't), the 4thGC says, "such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention."

The trouble is, the critics don't care about the GCs. They never have.

-- Randy2063 (talk) 00:36, 23 January 2008 (UTC)

There is no limbo, according to the UN, law-abiding countries, major Human Rights NGOs, the Red Cross, etc. There is a limbo according to a tiny fringe of people whose views of the world have repeatedly been proved flat wrong.

Randy2063, the notion that the only penalty needing a trial is the death penalty is ludicrous.

The provision in the 4th Geneva convention regards communications. The people concerned by this provision still must be formally charges, trialed, and cannot be tortured.

I do, in fact, care a lot for the Geneva Conventions, I just care for them in terms of upholding them, not in terms of how one can weasel his way out of them to commit war crimes. Rama (talk) 08:10, 23 January 2008 (UTC)

Did you read that section? It talks about detainment, which is probably why we call them "detainees" and not prisoners. It does say "in case of trial" but not that one is required to detain them. Note that this is detainment for security purposes only. It's not punishment, which would indeed merit a trial.

Then it concludes thus: "They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be." In other words, they'll get their rights back as soon as U.S. security concerns are satisfied. No later, but no sooner either.

It's odd to think you could control someone's "communication" without holding them. It's also odd to think the U.S. (or any country serious about this) would have ratified those treaties without allowing for detainment of people like this.

-- Randy2063 (talk) 17:31, 23 January 2008 (UTC)

If they are civilians and suspected of wrongdoing, they must be charged and formally tried. The US law, which does apply in this case (at least according to the US Supreme Court, if it has any saying in the matter...) goes as far as saying "quickly".

In the present case, only few have been formally charged and trialed.

Furthermore, whatever their status, prisoners are not to be subject to torture. Rama (talk) 17:44, 23 January 2008 (UTC)

Read closely: I linked to the 4thGC which is about civilian detainees, and not POWs. This isn't about "wrongdoing" in the sense of criminality. That would require a trial. It's about security needs.

The SCOTUS decisions have largely been about whether detainment is lawful according to U.S. law, not the GCs. The primary exception to that was where they decided that Common Article 3 applies. They also mentioned the GCs when discussing the competent tribunals, but it wasn't to say that the GCs apply, but rather, to suggest that such a minimal procedure could be sufficient for the GTMO detainees. If you'll note, the current case before SCOTUS is about whether U.S. law reaches GTMO. They're not even challenging for the detainees still held in Bagram.

This isn't about whether you or I care about the GCs. I'll take your word that you do, although most of the critics clearly do not, and never have.

Torture is a separate issue. It's illegal regardless, but keep in mind that it's a common claim by this enemy, whether it's made against us or against another of our allies. Even the Canadians have been accused of "torture" by the "suspected" jihadis that they're currently detaining (also without trial, if I recall correctly). They cry "torture" because it gets attention and sympathy, not because it's true.

-- Randy2063 (talk) 18:23, 23 January 2008 (UTC)

Sorry, but you appear to read the Geneva Conventions for the sole purpose of twisting them into autorising the very war crimes that they forbid. The exceptions to the right of communications in the 4th Geneva Conventions are linked to crimes for which one must be charged and trialed. Your reading that the Geneva Conventions condone illimitate abduction of civilians is egregious.

About torture, your point is correct, but could induce the wrong impression that the prisoners in Guantanamo are not subject to torture. At least a significant number of them indeed are. Rama (talk) 19:00, 23 January 2008 (UTC)

My intent in reading the literal words of the GCs was to show what the documents actually say. They say detainment is legal. They also say a trial is required only for punishment, not detainment. That's the treaty as it was ratified.

If you ever read the ICRC commentaries on this, they do say it's meant for unlawful combatants. (I think they call them "irregular combatants.")

None of this was about authorizing war crimes, and the U.S. has never claimed it was authorized to commit war crimes. But just because detainees or their supporters had said they were tortured doesn't mean it was true. These people are liars.

In any case, that's only about Article 5. The SCOTUS has not ruled that anything beyond Common Article 3 applies here. I've given you the Art. 5 link as an example of what may be permitted. Art. 3 allows more.

You can believe whatever you like. I just came in here to offer a link to the actual source.

-- Randy2063 (talk) 19:45, 23 January 2008 (UTC)

Actually a trial is necessary to waive the statue of prisoner of war in the first place. And formal charges are probably need to justify isolation. And nothing justifies torture.

In ICRC terms, "unlawful combatants" are people who are not entitled to the status of Prisoner of War; they are civilians whose acts of violence may be deemed criminal by a court. In Bush administration terms, "unlawful combatants" are neither prisoners or war nor civilians, have no protection whatsoever, can be detained arbitrarily and indefinitely, isolated, and tortured. Clearly, theses are not the same statutes. Rama (talk) 20:35, 23 January 2008 (UTC)

You're thinking of a competent tribunal. This is the part that SCOTUS suggested would be sufficient for holding them, and that's why they conducted the CSRTs a few years back. But it's in order to comply with U.S. law. It has not been determined to be required by Common Article 3. You're trying to expand the GC's requirements beyond what the U.S. has ratified. I suggest you read that part of the GCs again. It's all there in black and white.

Again, the Bush administration never said they can legally torture people.

-- Randy2063 (talk) 22:16, 23 January 2008 (UTC)

Rama, to be quote honest, I don’t even know what the hell you are arguing anymore. The administration granted Geneva protections to the Taliban early on in the war, and it would seem to be that the US is fulfilling its obligations by allowing the ICRC to visit these shitbags. Considering that any protection any members of the Taliban may have had in late 01 and early 02, their route from the battlefield and withdrawal to the hills in the eastern Afghanistan and western Pakistan would now most certainly disqualify them these Geneva protections. As for AQ members capture, who, exactly, is arguing that the Geneva conventions apply to them in any way shape or form? The usual suspects, to be sure, are whining and moaning and doing their best Jesus Christ superstar interpretation with all the flagellating press conferences and “oh so outraged” opinion pieces in the Nation Magazine and the New Yorker, but they are hardly mainstream. So which one of these “esteemed” organizations you rattled off actually says any of the following:

AQ deserves Geneva protections
AQ deserves POW status
The Taliban deserves Geneva protections (which there were given BTW)
The Taliban (those recently captured) deserves POW status
The Taliban (those captred early on) desrved POW status

I realize that I may just be ranting like the admitted “war criminal” I am, but your argument is so fragmented, so lacking in documentation and citation that its meaningless. Happy Sapper (talk) 17:50, 23 January 2008 (UTC)

AQ members ? To prove that someone is an "Al-Qaida member" (for whatever meaning that this could have... you seem to confuse Al Qaida with the baddies in a James Bond film), you need to charge and trial them.

Al Qaida members are, of course protected by the Geneva Conventions, either under title 3, or title 4. Even the Bush administration does not contest this [5].

Furthermore, under title 3 and 4, prisoners are supposed to be protected against torture, which is a common practice in Guantanamo and other similar concentration camps. Rama (talk) 18:04, 23 January 2008 (UTC)

Torture .. common practice?!? Oh, I suppose I forgot about the “dreaded pinkbelly”. Considering the source of the allegations of torture, I find them laughable, but then again, I suppose I am just another war criminal. 20:12, 23 January 2008 (UTC) —Preceding unsigned comment added by Happy Sapper (talk • contribs)

I'd suggest that you read Waterboarding ; neither the practice of this treatment, not its character of torture, can be seriously debated -- unless of course you are willing to call John McCain a "dreaded pinkbelly".

For the record, I did not say that you were a war criminal, only that you talk like one. For what I know, real war criminals don't brag about it on Wikipedia. You might simply aspire to follow the steps of Lynndie England and Charles Graner but not have the opportunity to do so. Rama (talk) 20:44, 23 January 2008 (UTC)

Two individuals are waterboarded and this is now considered a common practice? Wow, that’s an interesting leap, isn’t it? Secondly what you implied about me was not only mean spirited, slanderous, but displays a level of ignorance that I have not had the pleasure to deal with for quite some time. Your backpedaling of what you said is just as telling in that it demonstrates what an absolute coward you are, but I suppose its par for the course. Assholes like England and Graner and their criminally negligent and lazy CO’s like Karpinski have done nothing but make the daily lives of individuals like me much more difficult. Difficult because it makes interacting with what could be neutral or even sympathetic parties much harder, and difficult because it provides cowards like you with ammunition in you war of ignorance. Happy Sapper (talk) 23:18, 23 January 2008 (UTC)

I am not bound by the deformed understanding of my words. I tend to weight my words before posting them. This is what I did before characterising your claims that prisoners of Guantanamo were "animals" and "sub-humans".

This is also what I did when I mentioned waterboarding as an example. Waterboarding is not, by far, the only inhumane and cruel treatment to which prisoners are exposed in Guantanamo. Rama (talk) 11:23, 25 January 2008 (UTC)

According to this article from an English language newspaper in Pakistan:

"Ever heard of waterboarding? If you lived at Guantanamo you'd be awfully familiar with it. It's a charming little procedure whereby a person is held immobile on their backs, with their heads hanging loosely off a concrete board. Water is then poured heavily over the face, constricting the person's ability to breathe. The tortured feels a sensation quite like drowning and is almost certain to sustain lasting damage to the lungs and brain due to severe oxygen deprivation. Waterboarding was a favourite of the fanatics running the Spanish Inquisition in the fifteenth century Europe and now it's a Gitmo specialty."

The link follows. Sorry, I found the site through google. It tries to open your printer when you click on it.

I don't want to see exagerration of the freqency of waterboarding, any more than I would want to see minimization or obfuscation. I believe the Pakistani author is misinformed. I doubt that the military used waterboarding in Guantanamo. I think if they were, they would have used it on Mohammed al Qahtani.

It has taken me sometime to read through this thread! I would like to make a couple of points. Any nationality can take part in hostilites, if they do and are captured then they are initially covered by GCIII as POWs until such time as the face a "competent tribunal" (under Aricle 5), the only reason it took the US domestic law to catch up with this was because the Supreme Court had not visited this area of law since before the modern GCIII came into force. A combatant in front of a "competent tribunal" faces four possible outcomes.

He (or she) is a lawful combatant -- detain under GCIII
He is a lawful combatant but there is evidence to suggest that he is in breach of the laws of war -- see GCIII. Juridicial Proceedings (articles 99-108): Should be held as a POW and tried "as soon as possible"(art 103)
not a combatant at all. Go free young man and proceed to GCIV
Not a privileged belligerent. GCIII gives you no protection, but if you are an enemy national GCIV does (see GCIV Article 4). Assuming that you are a unprivileged belligerent and an enemy national then you will almost certainly be held by the detaining power under Article 5 or interned under Articles 41-42. If the detaining power decides to punish the unprivileged belligerent, then as a minimum Articles 5 and 71 apply (and probably some more but that enough to be getting on with). But unless the detaining power decides to take the person to court it is in the hands of the detaining power on how long the person is held up which can be up until the end of the war (when they would stop being an enemy national).

Now we come the most interesting one as far as the "US war on terror" is concerned, if someone is deemed to be an unprivileged belligerent (GCIII.5 "competent tribunal") then GCIII does not apply to their new status, and if the person is a national of an ally, or a neutral power, with normal diplomatic relations, then GGIV does not apply (lucky for those from a neutral power who do not have diplomatic relations with the detaining power because they are covered by GCIV!). For most of the USA detainees who are not US nationals, their status if they have been in front of a GCIII.5 "competent tribunal" and been found to be an unlawful combatant, is that they are no longer covered by the Geneva conventions. They are still covered by other international treaties that the detaining power (in this case the US) has ratified, and there are the normal diplomatic relations, but arguing about the rights and privileges of GCIV is probably a waste of time as they do not apply to most US detainees. --Philip Baird Shearer (talk) 14:54, 24 January 2008 (UTC)

Philip's explanation basically matches my understanding. I'd like to add some points:
- None of the captives, with the possible exception of Salim Ahmed Hamdan, has had their status reviewed by a "competent tribunal". The Combatant Status Review Tribunals, as I will explain below, are not "competent tribunals".
- Army Regulation 190-8 lays out the specific details of how the US military should treat captives in order to comply with the Geneva Conventions. My understanding is that the Tribunal procedures laid out in this 150 page document are the US version of a "competent tribunal".
- Some commentators conflate the CSR Tribunals with the AR-190-8 Tribunals. But, I think it is safe to say that no informed commentator conflates the two, unless it is their intent to deceive their audience.
- In Rasul v. Bush the SCOTUS didn't simply order the DoD to convene AR-190 Tribunals for the captives. Instead they recommended that the DoD convene procedures that were similar to AR-190-8 Tribunals.
- The two main differences between AR-190-8 Tribunals and CSR Tribunals are that:
  1. AR-190-9 Tribunals had a three officers who made the determination, and an officer tasked to present the case history to those officers. The CSR Tribunals add the Personal Representative (CSRT), an officer who was supposed to meet with the captive prior to the Tribunal, learn their story, and present it. In spite of the title, they are not supposed to be captive's advocate.
  2. The two Tribunals have different mandates. This was spelled out, in detail, during Moazzam Begg's documents. He had been issued a POW card by an employee of the ICRC. This had been stripped from him later on. Captives are allowed to request any witnesses they want. And their Tribunal President (CSRT) is authorized to rule that the witnesses are "relevant", and "reasonably available". Begg requested the ICRC employee who issued him the POW card giving him official POW status, and a US officer who had knowledge of his POW status.
    - On the advise of James R. Crisfield his Tribunal President ruled that witnesses who could testify as to his POW status were "not relevant" -- because the CSR Tribunal's mandate was only to determine whether the captive met a very broad definition of "enemy combatant". In spite of the name the definition of "enemy combatant" used at Guantanamo doesn't necessarily have anything to do with what reasonable people regard as a "combatant".
    - Joyce Hens Green a US District Court Judge in Washington DC who heard several dozen of the initial habeas corpus petitions, examined a DOJ official over this very broad definition. (Paraphrasing): "What if a little old lady in Switzerland donated money to what she thought was a legitimate charity, and, unknown to her, some of that charities funds were diverted to support terrorism? Could she be determined to be an 'enemy combatant' under this definition?" The DOJ official agreed that the little old lady could be considered an enemy combatant.
- Some people don't think the differing mandates of the two kinds of tribunals really matters -- because the same basic pool of officers would be considering the same evidence, in making their determination.
- Others, including myself, think that the different mandates is of absolutely critical importance.
  - The examples I offer to illustrate the importance of the differing interpretations are those Afghan captives who acknowledge that they had fought against Afghanistan's Soviet invaders in the 1980s, or had been conscripted by the Taliban during the 1990s, but were not members of the Taliban's military on 9-11 or afterwards.
  - I think the Geneva Conventions are quite clear on this. Veterans are not combatants. A veteran, who stays home when their country is invaded, who doesn't go and re-enlist, who doesn't take his or her varmint rifle down from above the mantel and attempt to take pot-shots at the invaders, is not a combatant. Period. It doesn't matter if they were a famous hero from a previous conflict, like von Trapp -- they are considered a civilian.
  - The CSR Tribunals considered Afghan captives, like Nasrat Khan, or Nasrullah, to be enemy combatants based on military experience that was decades old. Nasrullah had been mechanic in a peace-time Afghan Army that was so under-equipped his had trained on, and been issued a wooden stick instead of a rifle. Nasrat Khan had been stricken by a debilitating stroke, in 1988, and could only get around on a walker. Didn't matter, their previous military experience was advanced as an argument to consider them "enemy combatants".
  - Several captives who were press-ganged, at gunpoint, after 9-11, were told this didn't matter, they were still "enemy combatants". It didn't matter that they never received any training, weren't issued a weapon, were locked up for the entire period of their "military service" -- they were still "enemy combatants". Some Taliban commanders prepared to use slave labor as cannon fodder. The Tribunals classed these involuntary conscripts -- slave labor -- as "enemy combatants.
  - After decades of warfare Afghanistan's pool of professional or skilled labor was so reduced that the Taliban had to resort to seeking out individuals who could read, write, and do basic math to staff their civil service. Under the Geneva COnventions I think most civil servants would be considered civilians.
  - One captive had been involuntarily conscripted to fill in for the Governor's Secretary. The Governor of his Province was illiterate. He needed a secretary who could read and write, to help him deal with his correspondence. His regular secretary wanted to take some leave. The Governor gave him permission to take his leave, provided he could find someone who could read and write to fill in for him. This captive only served in the Taliban's civil service for two months, and it had been years prior to 9-11. He would clearly be a civilian under the GC, because he was a civilian, and his time serving the Taliban had predated 9-11.
  - In late 2001, and early 2002 the USA relied on the militias of the factions of the Northern Alliance leaders, and the Tribal militias, the militias of opium king-pins, the militias of petty bandit leaders, and the militias of actual resistance groups who had been fighting the Taliban -- anyone who could raise some troops and seize their local Taliban office when the USA called for resistance basically. The leaders of these resistance groups wanted to be rewarded, and retain local power.
  - In 2002 the joke was that Karzai was really only "the mayor of Kabul", not a real president.
  - In late 2002 or early 2003 local US commanders decided they had to go in and start stripping the local armories of of weapons. They seem to have done so arbitrarily, without any real understanding of which local leaders were compliant with the central government. At least a half dozen captives ended up in Guantanamo not because they had any tie to the Taliban, or any other resistance group, but merely because the armory they were responsible for had been one local US commanders had decided to empty.
  - The Boston Globe wrote about a militia leader named Abdullah Mujahid. He had lead a militia from his minority ethnic group in Khost.
    - Farah Stockman, Declan Walsh (June 18 2006). "Detainees not given access to witnesses: But in one case, 3 quickly found". Boston Globe. Retrieved 2008-01-24. {{cite news}}: Check date values in: |date= (help)
    - Farah Stockman (August 12 2007). "US behind Afghan warlord's rise, fall: At Guantanamo, unruly chieftains join combatants". Boston Globe. Retrieved 2007-09-18. {{cite news}}: Check date values in: |date= (help)

Interesting as all that is most of it is not directly relevant to this article which is about "unlawful combatants" not what the US administration calls "(unlawful) enemy combatants" which as you point out is not the same thing as a civilian who is an unlawful combatant. The only bit that is relevant is the bringing into line of US domestic law with their GCIII treaty obligations under the Supremacy Clause --Philip Baird Shearer (talk) 12:37, 25 January 2008 (UTC)

Or bringing the rest of the world in line with their GCIII treaty obligations, as it seems like the U.S. is the only party that is reading the GCs. I fail to see where it's been determined that domestic law is not in line with those treaty obligations. While it's true that SCOTUS ruled Common Article 3 applies, it is so far only Art.3, and the split decision shows it wasn't unreasonable to think it didn't.

I missed the part about "a civilian who is an unlawful combatant". It appears to me that "unlawful combatants" are the same thing as "(unlawful) enemy combatants" other than whose side they're on. I'll agree there are questions about some of the detainees, but we don't have the entire story. It's unreasonable to expect to get it any time soon, and even more unreasonable to trust anything their lawyers say.

-- Randy2063 (talk) 17:04, 25 January 2008 (UTC)

The difference between the USA and the "rest of the world" (I assume you don't include he European Union, Japan and a few others in this "rest if he world") is that the USA are an enlightened democracy under a rule of law (however disfunctional it can be at times), while the other parties are on a spectrum of lawlessness and dictatorship. Implying that the USA can wait in respecting their obligations while the others catch up is putting them on the same level as their enemies. The USA have not officially become a dictatorship, and however blind to some misdeed of the administration as they can be at times, I doubt that the US people and parliament would welcome the suggestion.

Suggesting that things should be assumed to be justified by some secret information effectively negates checks and balances, and probably democratic debate (the US constitution postulates that the people is "well-informed" in order to take decisions). Furthermore, there have been numerous examples of claims supposedly backed by "secret information" which have turned out to be totally untrue (Saddam Hussein - Al Qaida links; Iraqi nuclear programme; Iraqi chemical weapons; etc.).

Suggesting that lawyers cannot be heard is a negation of the whole US justice system. Furthermore, refusing to hear the lawyer because his client is suspected of particulary grave crimes, when he has not been judged and whe proofs have not be made public, is a logical vicious cycle, and arguably opening the door to arbitrarily accusing anyone of anything with no possible defence for the innocent wrongly accused. Rama (talk) 11:45, 26 January 2008 (UTC)

You misunderstand me. I'm not saying the U.S. can put aside the laws of war simply because our enemies choose to ignore them.

I am stating that the U.S. has indeed respected all of its obligations. The U.S. has simply chosen not to expand them beyond what was agreed upon.

Even if you read the GCs, it clearly says classified information does not have to be disclosed in order to detain someone. The fact that intelligence is sometimes wrong doesn't change that. Intelligence is often wrong, and there were countless examples of that fact before the GCs were revised in 1949. Now is not the time to act as though it wasn't factored into those negotiations.

This is the treaty that the U.S. government has signed, and that the critics had at one time fairly recently claimed to care about.

-- Randy2063 (talk) 16:33, 26 January 2008 (UTC)

Randy2063. The USA has chosen to define enemy combatant as "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." or the more recent "person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); "(Military Commissions Act of 2006). The problem with this last definition of unlawful combatant is that it describes people who are in no way close to engaging in combat as combatants "purposefully and materially supported hostilities against the United States". Further the definition of lawful combatant ignores a member of a militia, volunteer corps, or organized resistance movement belonging to a Party engaged in such hostilities with the United States (it only recognises State parties). This is a limitation the Geneva conventions do not have as in civil wars only one side will have a recognised State government. These US laws are a long way from the Luanda Trial and the execution of mercenaries who do not have "not have the right to be a combatant or a prisoner of war." The legal knots that the US has tide itself up in by using the politically glamours term "war" for what is really a policing problem are all of their own making. Notice that the British government initially fell into a similar trap in Northern Ireland when they introduced internment (the best recruiting sergeant the IRA ever had, (The Men Behind the Wire)), but in a long term action likely to last decades rather than months, treating captured IRA as criminals and not combatants solved more problems than it raised. --Philip Baird Shearer (talk) 13:35, 26 January 2008 (UTC)

Someone doesn't have to engage in combat to be considered a "combatant". That's the way it's always been. Military cooks and drivers wear uniforms, too, and when captured, they're held until the end of the war right alongside infantrymen. The Bush administration didn't make that up.

If you read the GCs, "militia, volunteer corps, or organized resistance movement" can be lawful combatants only because they're allied to a High Contracting Party. The U.S. has determined that the Taliban was not a High Contracting Party. Its pseudogovernment did not speak for the entire population of Afghanistan, and it was only recognized by Pakistan and (to some extent) Saudi Arabia and the UAE. It was never recognized by the U.S., nor the even the U.N. (The truly funny thing is, had President Bush recognized the Taliban in the summer of 2001, before the war started, these very same critics would have been howling over that.)

They could still have been accorded lawful combatant status under the GCs if they had pledged to honor the laws of war. The greatest shame of this war may be how reluctant the most vociferous critics have been in ever asking them to do so. Terrorists are sometimes even encouraged to kill civilians.

The "best recruiting sergeant" argument doesn't wash. Without GTMO, the critics would have drafted other recruiting sergeants. As shown by the discredited Lancet study, they're eager to invent more.

-- Randy2063 (talk) 16:33, 26 January 2008 (UTC)

For the n-th time, the denying the benefits of the Geneva conventions under the pretext that the opposite party does not abide by them is illegal per Nuremberg trials. Rama (talk) 17:36, 26 January 2008 (UTC)

That's true. However, that is not the case that's being made.

The U.S. certainly does have to abide by the GCs, and it is indeed doing so to the precise letter of the law.

The fact that some disagree is notable but that doesn't make them correct.

-- Randy2063 (talk) 18:13, 26 January 2008 (UTC)

I see it may have been confusing where I had said we need to recognize an enemy as lawful even if they don't respect the laws of war, while I had also said, They could still have been accorded lawful combatant status under the GCs if they had pledged to honor the laws of war. Both of those statements are true. They're just not talking about the same thing.

That's because under Art.4.1.3 of the 3rdGC, an insurgent group could be fighting for a government we don't recognize. (They were thinking of the Free French forces of WWII when they wrote this.) The difference is, the forces of a recognized government are automatically considered a regular army under Art. 4.1.1 regardless of whether or not they respect the GCs. But an insurgent group must make that extra commitment to get that status under 4.1.3.

It's in the ICRC commentaries, which say: "It is also necessary that this authority, which is not recognized by the adversary, should either consider itself as representing one of the High Contracting Parties, or declare that it accepts the obligations stipulated in the Convention and wishes to apply them."

-- Randy2063 (talk) 01:52, 27 January 2008 (UTC)

Again, inflicting torture or any form of harsh, inhumane or humiliating treatement to prisoners under the pretext that their party does not conform to the laws of war is illegal per Nuremberg trials. Whatever actions their party or themselves have been involved in, prisoners must be treated with basic respect. The numerous practices in which the USA have indulged dramatically fail to meet the barest minimum in this respect. Rama (talk) 08:26, 27 January 2008 (UTC)

And again, that is not what's happening.

The fact that the enemy doesn't meet the qualifications for POW does allow these detainees to be questioned beyond name, rank and jihadi number, but not torture. The U.S. has simply decided to take it closer to the line regarding the technical definition of torture for a handful of detainees. It is sometimes so close that some critics decided to call it torture regardless of whether or not it really is.

It is indeed theoretically possible that the critics could be correct in some cases. For that we might look at their records, and see how often they stand up for real human rights when their target is not the U.S. Sadly, albeit not unexpectedly, they have a mixed record on that. For many of the critics, it is truly doubtful that they actually care about human rights. With such a record, Wikipedia should not trust the enemy and their sleazy lawyers instead of the U.S.

-- Randy2063 (talk) 16:03, 27 January 2008 (UTC)

"Someone doesn't have to engage in combat to be considered a 'combatant'" But they have to be in one of the groups enumerated in Article 4. So a cook who is a member of the U.S Army is a combatant if the U.S. is at war under "Members of the armed forces of a Party" (GCIII article 4). His civilian father who works in McDonald's and "purposefully and materially supported hostilities against" the enemy by encouraging people to buy US war bonds is not. Yet the US law makes such people who do the same for a US enemy an unlawful combatant because even if the state is signatory to the Geneva conventions such a person is not a lawful combatant as they are a enemy civilian doing their bit for their countries war effort! Also a chaplain in the US armed forces is a non-combatant (Article 33) but the US law "part of the Taliban, al-Qaida," does not seem to make allowances for non-combatants who are members of those organizations.

As to only high contracting parties please read the last sentence of Article 2, and also consider Hague IV, Chapter II which binds all because it is considered part of customary military law and binding on all (see In the opinion of the Tribunal it is not necessary to decide this question. ...).

We could discuss this for much longer but I do not think we have said anything that is not in the archives. So even if you bother to reply I will not. I will just leave the conversation with you with one last observation. All this details that we have been talking about should be confined to the US section of the article and not spread about the rest of the article which has a global focus. --Philip Baird Shearer (talk) 17:38, 26 January 2008 (UTC)

You're half right. Being a signatory to the Geneva conventions isn't at question, but only if we're talking about Powers.

The last sentence of Article 2 is about Powers, not insurgent organizations. Other than Pakistan, Saudi Arabia and the UAE, who says the Taliban was a Power? (That's a rhetorical question -- you don't need to answer it.)

You're correct that this was discussed endlessly. We don't need to agree. Let's just try to keep the article from assuming the Taliban was universally judged to be a state.

-- Randy2063 (talk) 18:13, 26 January 2008 (UTC)

Number waterboarded? Number subjected to "extended interrogation methods"?

New York Times, last week

"The C.I.A. director, Gen. Michael V. Hayden, has spoken repeatedly about the training of the interrogators and the relatively few prisoners who have been subjected to the toughest techniques. Intelligence officials have said that of about 100 prisoners held to date in the C.I.A. program, the “enhanced” techniques were used on about 30, and waterboarding used on just three."

Washington Post, last week

"CIA spokesman George Little said yesterday that Hayden has said in speeches that the videotaping of interrogations stopped in 2002 and that about 30 of 100 CIA prisoners had required "special methods of questioning."

New York Sun, last July

"In a message to CIA employees on Friday, Director Michael Hayden tried to stress the importance and narrow scope of the program. He noted that fewer than half of the less than 100 detainees have experienced the agency's "enhanced interrogation measures."

About that nice round figure of 100 captives.

An August inquiry by three generals found eight cases of "ghost detainees," but senior Army investigator General Paul J. Kern told the Committee that the actual number could be as high as 100, although a precise number will likely never be known because no records were kept on many of the hidden detainees.

Cheers! Geo Swan (talk) 02:31, 24 January 2008 (UTC)

Self-defense to armed attack by civilians: lawful/privileged v. unlawful/unprivileged

I have reverted the changes to the lead because the ICRC makes a distinction between "civilians" and "non-combatants". The definition given in the first paragraph is a ICRC definition, not a roll you own. Further the new lead seems to imply that this is everything to do with the US when it is not it is a general definition not specific to one nation. --Philip Baird Shearer (talk) 15:09, 23 January 2008 (UTC)

We could add a footnote to cover "6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." if that is bothering people, but that is not included in the ICRC article from which the definition is taken. --Philip Baird Shearer (talk) 15:13, 23 January 2008 (UTC)

We have a BIG disagreement here. First, a commentary by ICRC does not supervene the actual language appearing in international agreements--according to which civilian resistance to armed attack by an invading force is neither unlawful nor unprivileged--including, inter alia, the UN Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The latter expressly recognizes that “no one shall be deprived of his life” and that persons have the right to use necessary lethal force to defend the deprivation of anyone's life, i.e., the lives of persons beyond those employing lethal force, "save in the execution of a sentence of a court following conviction [of a capital offense]":

Section I – Rights and freedoms

Article 2 – Right to life

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection.

I am not sure what you are saying here in the article you have quoted there is no right given to individual self defence. Also in time of war this article is affected by Article 15 – "Derogation in time of emergency" of the Convention for the Protection of Human Rights and Fundamental Freedoms --Philip Baird Shearer (talk) 10:14, 30 January 2008 (UTC)

For its part, the UN Charter, Art. 51, states that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

The gloss that you assign to these excerpts--that they only authorize states, as opposed to persons ("civilians", as you call them), to violenty resist an illegal, occupying force--is one that inures exclusively to the benefit of states, particularly those which attack states that are too weak to protect their own citizens from war crimes. It is also just that--gloss--and all the commentary or scholarly opinion in the world can neither alter that fact, nor amend the UN Charter or the ECPHRFF to say what you and the ICRC would prefer.

The sad irony is that, by your logic, the entire French resistance to Nazi occupation was "unprivileged" or "unlawful." You and the ICRC are entitled to your opinion(s). You are not, however, entitled to brandish those opinions as if they trumped the UN Charter and the ECPHRFF.

--Stingray86 (talk) 04:22, 30 January 2008 (UTC)

Some of the French resistance certainly was unprivileged in the sense of Geneva conventions.

I am sorry to say that I cannot support or tolerate an article whose very first sentence is a verbatim copy of an argument of the Bush administration. The rhetorics of the Bush administrations are certainly of significance, but they do not frame or define the subject. Rama (talk) 07:07, 30 January 2008 (UTC)

Stingray86 please read WP:PSTS. As you will see Primary sources can not be used the way you are trying to use them. If your interpretation of the UN charter is correct -- and given the International Court of Justice judgement in 2004 [6] on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (8.1 megs PDF) see paragraph 139 (my emphasise with bolding)

139. Under the terms of Article 51 of the Charter of the United Nations:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State.

I do not think it is -- then like the ICRC commentary and ICJ ruling you need to find a verifiable reliable secondary source that supports your interpretation. If you do then we can put in a construction as suggested the Attributing and substantiating biased statements section of the NPOV Wikipedia policy.--Philip Baird Shearer (talk) 09:48, 30 January 2008 (UTC)

Regarding the French Resistance, they were indeed unlawful combatants during at least one part of the war. France had surrendered, and that meant that all its soldiers had to lay down their arms. (This is similar to the background of Johnson v. Eisentrager, where Germans in Japan were not lawful combatants after Germany had surrendered.) If you read the ICRC commentary I linked earlier, Free French fighters were unlawful combatants until it was later decided they had to claim they were fighting for Britain. Article 4.1.3 of GC3 was later added to address this. As the ICRC says, they still must declare that they "respect the laws and customs of war." (Today's jihadis have not made that claim.)

Whichever way you all decide this, the "competent tribunal" part needs to be fixed. There is no requirement in the GCs that every detainee in a Common Article 3 conflict should get such a tribunal, especially when there's no doubt. In the current war, very few of the detainees even claims to qualify as a POW. Of the few who do, it's difficult to say with a straight face that the slightest doubt exists when the entire movement has established it will not respect the laws and customs of war.

If you want to enter claims by lawyers who dispute this, go right ahead. I think we'll need more specifics, and they should go into another section. The HRW source has too many problems. Even if you believe those lawyers care at all about human rights, you can find a better (and more recent) source than that one.

The phrase "he retains all the rights any other civilian would have under municipal and international law" clearly doesn't fit for all security detainees. The 4th GC says they only get their rights back "at the earliest date consistent with the security of the State or Occupying Power". Say what you like about GTMO, but even the anti-GTMO lawyers 'do not argue that detainees still at Bagram have those rights.

-- Randy2063 (talk) 17:07, 30 January 2008 (UTC)

The Free French were very arguably fighting for the legitimate government of France, led by De Gaulle, who was the only member of the government capable of exercising power. As such, they were perfectly legal combatants.

When I say "Some of the French resistance certainly was unprivileged in the sense of Geneva conventions", I am thinking of groups like Communist militants using classical "terrorist" tactics, including playing on the provocation/repression cycle of the occupier to raise anti-German sentiment among the population. This has nothing to do with the Free French. Rama (talk) 17:46, 30 January 2008 (UTC)

That may sound nice but there's nothing to support it.

What you're in effect saying is that no country may declare an end to a war they're involved in while an unelected junior member of its government chooses to fight on.

-- Randy2063 (talk) 18:44, 30 January 2008 (UTC)

I am afraid that there are indeed things that support it. You could start by reading the Mémoires de Guerre.

You make it sound dramatic, but the laternative is that a puppet regime imposed by the enemy could bind the country to whatever decisions the victor dictates. In effect, puppet regimes are rarely taken seriously. Rama (talk) 19:18, 30 January 2008 (UTC)

I was going to state that I agreed totally with Randy about the Free French... But then I remembered that Rama is not only a smart guy, but is actually from France. So, can I ask for clarification about how De Gaulle should be considered the header of the legitimate government of France? In May 1940 wasn't he just a 2 star General, commanding one of France's armored Divisions? Didn't the elected government of France surrender? Why shouldn't the government that surrendered be considered the legitimate government? Why shouldn't they be be considered empowered to surrender?

Even if, for the sake of argument, the legitimate government had not surrendered, and the resistance was fighting under their authority, how openly would resistance member have to carry their arms in order to comply with the third Geneva Conventions? How distinctive would the fixed distinctive marking have to be for them to comply with third Geneva Convention? Would they still be complying if they removed that fixed distinctive symbol when they slipped away from a skirmish, and blended in with the civilians?

Cheers! Geo Swan (talk) 23:44, 30 January 2008 (UTC)

In addition, the U.S. government continued to recognize France under Vichy. Britain and the other allies may have done so as well.

I think giving a two-star general the right to keep his country at war when the main government seeks peace could have horrific consequences. It also knocks the doctrine of command responsibility off the rails.

-- Randy2063 (talk) 00:56, 31 January 2008 (UTC)

In May De Gaulle was indeed acting two-star General (that's one-star general for our American friends).

From June, he was made under-secretary of State for national defense and war. De Gaulle was in charge in particular with coordination with the British. On 16 June, a coup d'État put marshal Pétain in the position of Prime minister; at the time, De Gaulle was in London. The "election" of Pétain was in fact highly irregular, and can be considered to be illegal. It is this treacherous regime, made from autoritarian conservatives, defeaters and pro-nazis, which requested an armistice. From this perspective, with the other members of the legitimate government arrested or incapable of exercising power, De Gaulle became the only remain of the legitimate government of the Republic, and as such appropriately assume the prerogatives of chief of State and the persue of the war as declared by the legitimate government of the Republic.

Randy2063, you are making a display of blatant ignorance here: the British recognised the Free French. As for the United States not recognising the Free French, I regret to say that

the USA are not the source of legality in the world (as they dramatically demonstrated in last few years)
the point of view of a neutral country displaying interests in compromising with the Axis powers, as were the USA, would have legitimately been put into context by the Allies (France, United Kindom, Poland, Holland, Belgium, ...)

That alternative points of view exist in undeniable, but I think that you are giving the Vichy-USA point of view more credit that it deserve. The gaullist reading is at least as valid, and has the extra credit of having won the war. Rama (talk) 08:24, 31 January 2008 (UTC)

I stand partly corrected, but the Allies' relations with Vichy were more complicated. It wasn't the U.S. alone. They were joined by Australia, Canada, and (unsurprisingly) the U.S.S.R.

I think you overstate the degree to which Vichy was a puppet regime. They had their moments of fortitude. Had Britain given up, De Gaulle might be remembered today as a warmonger.

Don't take my position to mean that I'm sympathetic to Vichy. I'm not the dove here. In fact, I see in your expressed disgust with the "authoritarian conservatives, defeaters and pro-nazis", you've left out the communists' very loud support for Vichy. It was because of them that the so-called "peace" movement of that day sounded very much like they do now.

-- Randy2063 (talk) 15:50, 31 January 2008 (UTC)

Wrong. The Communists were opposed to Vichy too. That they kept a low profile towards the Germans does not make them sympathetic to Vichy. See Guy Moquet for context, for instance.

Vichy was a patchwork of converging and diverging interests, you'd get some traits of efficiency and will in a sea of defeat, usually for bizarre motives. The naval battles of Vichy are quite symptomatic of the regime, often tactical success framed in an inescapable strategic disaster (Battle of Koh Chang, Battle of Dakar, Scuttling of the French fleet in Toulon,...).

Incidentally, I don't mean to express disgust, I was expressing the gaullist and republican perspective. But one objective myth should be debunked, it is that of a supposed continuity between the 3rd Republic and Vichy. The vichists referred to their movement as Révolution nationale, boasted the notion of État français in contrast with République française, and of course were anything but democratic.

One thing that can't be denied is that "things are more complicated". I suspect that this is the fundamental fabric of the universe. Rama (talk) 18:23, 31 January 2008 (UTC)

The Trostkyists remember it differently: "In l'Humanité, September 26, 1940, the PCF was lambasting the Gaullist resistance as "war-mongers with other people's lives" and denouncing "the common will of the imperialists to drag France into the war, on the German or the other side in the name of a supposed resistance against the oppressor."

They seemed to have viewed De Gaulle in the same category as George W. Bush.

In any case, I'll cheerfully admit this is more in your department than mine but in the larger question about the GCs, there can be no question that a country must be permitted to surrender if they so choose. That there was no one with the authority to make that decision complicates the picture.

-- Randy2063 (talk) 19:15, 31 January 2008 (UTC)

But that doesn't mean that the Communists supported Vichy ! You are falling in the "ennemy of my ennemy" fallacy. The Communists loathed the Vichists because they were ultra-conservatives and anti-communists, and the Gaullists because they hindered the policy of alignment on the USSR. And that doesn't mean that they liked the nazis either -- or the Germans, for that matters. Furthermore, the slogan "behind every German soldier a fellow worker is hiding" was from anti-stalinist communists, if I remember correctly, so you have leftist appeasement positions even outside Stalin's policies. In any case, the Communists had been banned from being a political force by the previous government, precisely for their pacifist positions, so they were in no case a force capable of supporting or hindering anything on the political level.

A country can of course surrender, but in this case you basically have a civil war starting over this matter.

What is interesting is that the 3rd Reich decided on a relatively humane policy for the Free French. Rama (talk) 19:39, 31 January 2008 (UTC)

Yes, that is interesting. It's partly Hitler's view of the west vs. his view of the east.

We can agree with most of the rest of that. Perhaps I should have said they tolerated Vichy rather than supported them. But I certainly wouldn't call them pacifists even if a handful of them probably were.

-- Randy2063 (talk) 01:11, 1 February 2008 (UTC)

I think we can forget about the French resistance as an example and instead look at the Hostages Trial "We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."

The Celebici Judgment on what was essentially a civil war indicates that Article 5 of GCIII also applies to civil wars, However lets stick to international conflicts, to keep us focused. Randy2063, I think that you are too hung up on the current self made hole that the US government has dug for itself by dignifying what is a criminal conspiracy as a war -- in the words of Denis Healey "when you find yourself in a hole, stop digging". The US government used the same rhetoric for the War on Drugs, but luckily for everyone in that case they only used it as a rhetorical device. To move the conversation on: suppose that we look at the case of mercenaries instead of mad mullahs. The phrase "he retains all the rights any other civilian would have under municipal and international law" does not mean that he has any rights under GCIV indeed if they are a mercenary it is unlikely that they are covered by GCIV (for example an American mercenary fighting in Anglo was not protected by GCIV) and if the municipal power decides to hold him indefinitely or execute him for murder or what ever, then providing they are doing that within their own legal system (and they have no treaty obligations not to do so) the detaining power is free to act in just such a manner.

To your other point Randy2063 the ICHR commentary is quite clear as is GIII 5 if there is any doubt that a combatant is unprivileged the a competent tribunal should decide the status of the combatant: (privileged combatant, unprivileged combatant or a non-combatant) no one else but a tribunal is competent to decide, certainly not the solder who takes the prisoners surrender. Now if a turkey will vote for Christmas and agree that they are not a privileged combatant, then there may not be a need for a "competent tribunal", but if I were the holding power I would still stick the unprivileged combatant in front of one to formally hear the unprivileged combatant affirm it, otherwise the detaining power is laying themselves wide open to a later propaganda attack by the enemy.

--Philip Baird Shearer (talk) 18:01, 30 January 2008 (UTC)

You say it's quite clear, and yet when the text says "any doubt" the ICRC commentaries say, "This would apply to deserters, and to persons who accompany the armed forces and have lost their identity card." It doesn't say it applies to an Article 3 conflict, nor that Al Qaeda or the Taliban have the standing to express those doubts. And as I said, where are the doubts about detainees in Bagram?

Although GCIV didn't exist in the Hostages Trial, it looks to me like principles of the right of detainment were allowed for.

You're correct about propaganda attacks. That was also a problem in WWII, but Churchill and FDR were eventually able to deal with it in ways that wouldn't be tolerated today. It certainly helped that the communists (who also ran the peace protests then, too) changed sides.

-- Randy2063 (talk) 18:44, 30 January 2008 (UTC)

You mean Bagram torture and prisoner abuse? I see doubt all over the place. Rama (talk) 19:21, 30 January 2008 (UTC)

Doesn't change the facts about the GCs.

But you're really making my case. As that article demonstrates, there were military investigations and prosecutions for those crimes. That's what's required. No one ever expected a war to not have some events like these. It was no different in WWII -- resulting in military prosecutions and even executions.

Of course, you're also making my case about the propaganda element.

-- Randy2063 (talk) 20:22, 30 January 2008 (UTC)

Excuse me, but the facts prove that some unarmed civilians are taken prisoners without charge, in blatant violation of the Geneva Conventions. Clearly their status required formal procedure, yet they were not deferred to competent courts. There is a systemic problem in the handling of these people which goes way beyond a few grunts used as scapegoats (since you insist on evoking the propaganda aspect). Rama (talk) 21:37, 30 January 2008 (UTC)

As I said, no charge or trial is required under GCIV.

-- Randy2063 (talk) 00:56, 31 January 2008 (UTC)

Randy2063 you will also have to take into account the Celebici Judgment (Mucić et al. (IT-96-21)) and Hauge IV. One really needs to read all of the Celebici Judgment, but to help you I cherry picking some paragraphs: 199,235,237,239,242,245,266,271,272. Further we are looking at the lead here and I am not sure why you are so fixated on the current US hole, that hole can by and large be kept to the United states municipal law section. --Philip Baird Shearer (talk) 20:56, 30 January 2008 (UTC)

I don't disagree that the lead isn't the place for this. But the fixation on the U.S. view is not mine. Like most of these articles, much of this one was shaped in reaction to the U.S. reading of the GCs. Even the GC article was started by someone with this in mind ("Given recent events"). Then it took 18 edits (admittedly far more than I'd expected) for it to become overtly critical of the U.S.

(Edit histories are often fascinating in this way.)

On the Celebici Judgment, I'm glad you didn't insist I read the whole thing, but I found it instructive.

I'll agree (if it was your intention to say it) it's clear about there not being a gap between the 3rd and 4th GCs. I don't think the U.S. view was totally out of bounds here, as that's not the same thing as the question of whether or not Common Article 3 applies. Without it, the question of that gap isn't relevant.

I also don't think Celebici's example could be used to say the U.S. runs afoul of the "competent tribunal" requirement. I didn't see anything where the judgment not to conduct a competent tribunal was held against them when dealing with a civilian. Paragraph 243 seems to agree that no competent tribunal is required if there is no doubt.

Regardless, as paragraph 242 says (when talking about GCIV), "some individuals may indeed have been involved in activities 'hostile to the security of the State', and thus they may have been legitimately detained". Paragraph 562 and 570 expand on this, and allows broad discretion for detainment.

-- Randy2063 (talk) 00:56, 31 January 2008 (UTC)

Now that I think about it, I'd like to respond to something you've said earlier ("no one else but a tribunal is competent to decide").

Just as the status of an individual combatant should not be left up to the individual soldier who captures him, the larger question of who and what we're fighting should never be left up to a trio of officers in the field. They should look at individual detainees but it's not up to some colonel to say that our enemy has standing as a nation.

-- Randy2063 (talk) 15:50, 31 January 2008 (UTC)

Article needs to account for Common Article 3

I think we've been diverted too much by the "competent tribunal" business.

I went into the ICRC commentaries for Common Article 3, and found this:

To borrow the phrase of one of the delegates, Article 3 is like a "Convention in miniature". It applies to non-international conflicts only, and will be the only Article applicable to them until such time as a special agreement between the Parties has brought into force between them all or part of the other provisions of the Convention.

Since it's the only article applicable to them, this clearly tosses out the need for a competent tribunal in an Art.3 conflict, or even the section of GCIV on detainment. While I don't think it should be removed from this article, it needs to be made clear that it's not required by the GCs in all wars.

Reading 4.(c) and (d) it becomes clear why the Bush administration didn't think Art.3 applied at all, but we're stuck with that.
-- Randy2063 (talk) 21:34, 1 February 2008 (UTC)

See Unlawful combatant#Persons who are not prisoners of war in an internal conflict --Philip Baird Shearer (talk) 02:38, 2 February 2008 (UTC)

It needs to be in the lead section. Either that, or we need to remove the text about a competent tribunal. It may not say outright that the U.S. is currently in violation of the GCs, but that's clearly its intent. We can't start off with several paragraphs giving the anti-Bush spin, and then place some fine print at the bottom to clear that up.

It also needs to be referenced in Unlawful combatant#United States. Given what I'd said above, the Bush administration never "ignored" the GCs. It is the critics who've ignored them.

You're right that the Martens Clause is important. I say that even though I think it's barely applicable to the war on terror. The concept of unlawful combatants was well understood even if not agreed upon. Martens does not say there will be progressively easier standards for unlawful combatants. The 1949 conventions did give them a path to legitimacy while setting clear conditions for that.

The U.S. is acting well within the bounds of Martens. From the Ticehurst analysis that you've linked earlier: "The principles of humanity are interpreted as prohibiting means and methods of war which are not necessary for the attainment of a definite military advantage."

Detainment and interrogation are obviously necessary for a military advantage, and I'll say it's absolutely crucial in a war where the enemy is encouraged to use innocent civilians (including women and children) as integral to their campaign.

To the extent that Martens is useful here, it only says there are still limits in wars where Article 3 don't apply. In its most broad interpretation, it's still going to be less restrictive than Common Article 3. It can never mean that unlawful combatants in an Art.3 conflict (or even suspected combatants) are entitled to a competent tribunal in order to detain them.

-- Randy2063 (talk) 04:29, 3 February 2008 (UTC)

"It may not say outright that the U.S. is currently in violation of the GCs, but that's clearly its intent" as I wrote most of the lead as it is at the moment I can definately say that is not the intent :-) I think that trying to introduce into the lead all the complications of this issue would be a mistake. If anything the lead needs simplifying. Not only that but the US Supreme Court has caught up with this article when it confirmed that the US was bound by GCIII (1949).

So people can follow the conversation above I mentioned the Martens Clause to Randy2063 on Randy2063's talk page because I thought that Randy2063 might be interested to know that there has been tension over this issue for over 100 years. Great Powers who's home territory is unlikely to be invaded tend to be less keen on legitimising armed resistance to occupations than smaller countries that are more likely to be occupiedeither by a Great Power of an ally of a Great Power. --Philip Baird Shearer (talk) 19:08, 3 February 2008 (UTC)

Yes, the lead section has too much clutter as it is. I think it's too verbose now even though WP:LEAD says it could be up to four paragraphs. But that's just a literary criticism.

My main problem is that it's both technically wrong and misleading. For the foreseeable future, 99.9% of readers coming to this article will be particularly interested in how unlawful combatants relate to the war on terror. If we're going to introduce into the lead any of the complications of this issue, it should only be the most relevant ones. If Art.5 and competent tribunals do not apply to current events at all, then why must it take up almost the entire lead?

And I'm not kidding. It really is most of the lead.

I think the first paragraph of Unlawful combatant#International law and practice would make a better lead.

Then there are these lines:

"the treaties of humanitarian law do not expressly contain these terms"
"the treaties of humanitarian law do not expressly contain these terms"
"The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII)."
"the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions."

I think once is enough. It's an interesting fact, but it might confuse some people into thinking it's not a proper category. A lot of people already think Bush made it up.

-- Randy2063 (talk) 21:04, 3 February 2008 (UTC)

Of course Bush "made it up." Nowhere in any law or lawbook will you find unlawful combatant defined. Only lawful combatant has a legal definition.Nomen Nescio^{Gnothi seauton} 11:55, 4 February 2008 (UTC)

Should I say, I rest my case?

If Bush made it up then he must have gone back in time to do so.

-- Randy2063 (talk) 14:42, 4 February 2008 (UTC)

Indeed, I think you said it best above:

"the treaties of humanitarian law do not expressly contain these terms"
"the treaties of humanitarian law do not expressly contain these terms"
"The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII)."
"the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions."

RespectfullyNomen Nescio^{Gnothi seauton} 16:55, 4 February 2008 (UTC)

I don't really know what your point is. It's clear that Bush didn't make it up.

There's a legal concept that applies here: "expressio unius est exclusio alterius"

It means the exclusion of one thing is the inclusion of the other. The laws of war state what's lawful. Everything beyond that is unlawful, which technically means it's not covered by law.

In this case we're talking about treaties and international obligations. The fact that they're not covered means our international obligations to these fascists are minimal.

-- Randy2063 (talk) 18:27, 4 February 2008 (UTC)

You fail to understand that everything that is not defined as unlawful ipso facto is lawful. The notion that the law does not need to define which actions violate which prohibition is almost certainly copied from 1984.Nomen Nescio^{Gnothi seauton} 20:10, 4 February 2008 (UTC)

It's more likely Orwell would side with me. (He did say, "Pacifism is objectively pro-Fascist.")

The concept of ipso facto is applicable but not to the GCs in that way. We're talking about treaties and international obligations, and how they bind the U.S. government when it committed to operating in accordance with the laws of war. The listed provisions are what we've agreed to. Beyond that, to include unlawful combatants, we haven't agreed and I don't see how we are bound by the whims of our critics.

I do think ipso facto did come into play when the SCOTUS ruled that Congress must authorize hearings. But that's to satisfy U.S. law, not the rest of the world.

-- Randy2063 (talk) 21:35, 4 February 2008 (UTC)

You are being quite dishonest. Orwell said "Pacifism is objectively pro-Fascist" in 1942 United Kingdom, in a precise context. The context is quite different from a perpetual war against ill-defined enemies being used as a pretext to ignore international law, misinform the public and use torture. Orwell's views on these policies are not ambiguous. Rama (talk) 09:34, 5 February 2008 (UTC)

My failing here is that I'm being brutally honest. Orwell personally fought against fascism in Spain, and then he argued for war against Hitler when many of his former comrades turned peacenik. Most of the people opposed to this war would have (up to June 1941) opposed U.S. and British involvement in WWII as well. If anything, I'm being unfair to true pacifists.

Contrary to your statement, our enemies have been defined very precisely. It is because of this precision that the Uyghur captives in Guantanamo were reclassified as not being enemies even though anti-GTMO lawyers say they faced far more serious allegations.

The rest of your statement is more related to this article. As you can see from the start of this section, it is the U.S. that is observing international law. It is the critics who are ignoring it.

-- Randy2063 (talk) 15:33, 5 February 2008 (UTC)

The enemies of the USA are defined as "terrorists". This is in no way a precise definition. Actually, the definition used by the USA has been demonstrated to include "Swiss grand-mothers".

International law prohibits torture, aggression against sovereign States without UN mandates, violations of Humans Rights, etc. In these respects, the USA are in complete illegality. Rama (talk) 22:39, 5 February 2008 (UTC)

No, it's not. The definition is more specific than that.

The Authorization for Use of Military Force Against Terrorists says "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". If a Swiss grandmother funds such an organization then I do hope they lock her up before she gets more innocent children killed.

The U.S. is paying very close attention to all the treaties it has ratified. Again, I refer you to the beginning of this section.

-- Randy2063 (talk) 23:37, 5 February 2008 (UTC)

The definition is worse, it is "war against Terror". Conservatives commentators, such as Friedman, have deplored the stupidity of this label.

"... the problem of what one Senate aide described as “the grandmother in Switzerland” who writes a check for charity that ends up going to a terrorist organization" [7]. We are indeed talking about people accidentally falling in Bush's "unlawful combatants" category. Do I have to remind that the White House has repeatedly stated that it would not be bound by decisions taken by the Senate ?

The USA is engaged in a process of legitimating torture, which goes directly against its international engagements. It also defied the United Nations by illegally invading a sovereign nation, engaged in illegal activities on the soil of its own allies, ignored and dodged the Geneva Conventions. Spinning the USA into a paragon of virtue is plain ridiculous. After the USA twisted the law, looked for holes in it and dodged their most fundamental engagements as they did since 2001, saying "The U.S. is paying very close attention to all the treaties it has ratified" is like saying that an alcoholic is aware of intoxication effects. Rama (talk) 08:10, 6 February 2008 (UTC)

Is that the best you can do?

The name of the war isn't a source of law, and it's not used as one. That would be like the critics of "World War II" claiming it was an illegal war because the entire world wasn't technically at war. BTW: Thomas Friedman isn't a conservative by any stretch of the imagination.

Your claims about the U.S. "legitimating torture" are equally ludicrous. I recognize that such tripe is popular but it's irrelevant to this article, and I'm not going to argue it now.

No one is "accidentally falling in Bush's 'unlawful combatants'" category. The GTMO detainee roster is conspicuously lacking in Swiss grandmothers. Had that example happened in real life, the Swiss authorities would be asked to handle the matter themselves.

These "holes" in the laws weren't put in there by accident. They're quite legitimate and essential to anyone who truly cares about human rights. It would be wrong, and I would say utterly inhumane, not to strictly observe the requirements for a lawful combatant when the U.S. is fighting an enemy such as this.

-- Randy2063 (talk) 17:20, 6 February 2008 (UTC)

You are mixing two different things: your point on Orwell, which I regard as deeply offensive and dishonest, and the discussion on Bush's "unlawful combatants".

Regarding Orwell, it is indeniable that the so-called "war against Terror" is in effect a perpetual war, waged against ill-defined and shifting adversaries; that the public is misinformed and disinformed; and that it had deeply nefarious effects on public liberties, including those of US citizens. Suggesting that Orwell would have been sympathetic to the policies of the Bush administration is an insult to him and to everyone's intelligence.

Regarding Bush's "unlawful combatants", it is a notion invented by the present US administration to bypass international law, attempt to make the Geneva conventions irrelevant, and make torture an acceptable issue to the US public.

For your information, Guantanamo does contain people as irrelevant as Swiss grandmothers. Some detainees, when surrendered to their home countries, are not charged of any crimes (for instance Mustaq Ali Patel was never charged for any activity related to terrorism when surrendered to France). Most of the detainees are surrendered to US troops by booty hunters, not by after investigations that target them personally. Friedman (George Friedman, founder of Stratfor, self-professed "conservative Republican"; I resent your reference to Thomas Friedman, what do you really believe me so ill-informed or dishonest ?) goes as far as to say that people are caught "at random" (America's Secret War).

Torture is perfectly relevant to the discussion, because the Bush administration puts forward this "Unlawful combatant" status precisely to legitimate it, claiming that it is not forbidden. It is, in fact, by Human Rights and the jurisprudence of Nuremberg, regardless of the wrongdoings of the concerned parties.

There are no holes in Geneva Conventions. They are only claimed by the Bush administration, which holds on this point a very minority point of view. Nothing in the law forbids the USA to defend itself against enemies such as Al Qaida, but the present predicament of the Bush administration are mainly due to its eagerness to talk about a "war" to define what is, in fact, a matter of police. This, in turn, is partly due to petty politics, and to the bizarre organisation of US anti-terrorist services, which lack a proper counter-espionage branch like the MI5 or the DST. This is completely US's own doing. Rama (talk) 09:05, 7 February 2008 (UTC)

This is an archive of past discussions about Unlawful combatant. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

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