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RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/14/2008 10:39:13 AM   
Muttling


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quote:

ORIGINAL: Vendaval

How do these laws apply to mercenaries and security for hire, like Blackwater?



Depends on what side of the POW line they are standing.


If they are captured and are wearing uniforms that clearly identify them as being on one side or another (which they typically are), they are considered POW's just like active duty service men and women.

If they are handling prisoners then there are a number of variables that determine what laws they fall under.  The short answer for the Iraq situation is NONE of the laws apply them.  The long answer is in the following paragraphs.

The first and foremost is the laws of the country which they are in when the events take place.  In the case of Iraq, the Iraqi government gave exemption from all Iraqi laws to security contractors so Iraqi laws don't apply to them.  In the case of Afghanistan, no such exemptions have been made and there have been some charges filed against U.S. contractors.

The second are any laws that their contract says they are required to follow AND the individual security personnel have signed the acknowledgement form accepting the jurisdiction of such laws.  This would be an extension of the Unified Code of Military Justice.  The State Department has discussed making this a requirement for U.S. security contractors in Iraq, but has not done so to date.  The REAL sticky part of this aspect is the third country nationals like the South African security specialists that are hired by the security firms as those operatives certain to be hesitant to operate under U.S. military laws since they are unfamiliar with them.

(in reply to Vendaval)
Profile   Post #: 41
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/14/2008 10:39:41 PM   
Vendaval


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Status: offline 		Thank you for the explanation, Muttling.

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(in reply to Muttling)
Profile   Post #: 42
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/14/2008 11:46:32 PM   
Bufotenin


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quote:



BFOTENIN, if a person is being held with out communication, how could they have a trial? 
Unlawfull combatants include but are not limited to Spies, who do far more than just gather intell.   They differ greatly from soldiers who are just told what to do..ie attack that hill...Commandoes are independant, making actuall decisions on tactics.  They know far more about what and why than your average draftee or farm kid.  Treating them the same is nonsense.  Again, they are not allowed to be shot or tortured, but they do not get certain POW rights.


It doesn't say they're to be held without communication, it says "having forfeited rights of communication under the present Convention". The rights of communication under the Geneva convention, which includes free correspondence and in cases of 'protected persons accused of offences', "the right to be visited by delegates of the Protecting Power and the International Committee of the Red Cross" (Article 76). When interpeting legal documents you're not meant to pick-and-choose the words you recognize. It then specifies as an exemption that in case of trial "such persons...  shall not be deprived of the rights of fair and regular trial." No, to my knowledge the Convention doesn't grant the right to trial, but you'd think a nation which claims to pride itself on the rule of law would be willing to take steps to provide due process.

Again, nothing in the text of Convention IV Article V indicates that those who fall under it lose status as "protected persons" and become reclassified as 'unlawful combatants', only that they temporarily be exempt from the rights granted to 'protected persons' when those rights are "prejudicial to the security of [the occupying] State", the specific exemption being "fair and regular trial". As I've said, Article 5 was originally intended to apply to spies, saboteurs, and the accomplices off the battlefield and within the civilian population of an occupied nation. This is why it is listed in Convention IV, which concerns civilians, rather than included in Convention III of 1949, which concerns armed combatants on the battlefield. No, they don't get the rights of POW's, but as "protected persons accused of offences" they should have been "detained in the occupied country" (Article 76) and subject to domestic law.

Nowhere in Article 5 of Convention IV is the term 'unlawful combatants, or 'lawful combatants' used. In fact, according to Article 5 of Convention III the detainees were to be granted the rights of POWs until their status was determined by a 'competent tribunal', rather than automatically assumed as the U.S. administration did for years. You continue to insist that "[this] is nonsense" and assert the intent of the Conventions without providing any textual evidence from the Conventions themselves of your claims that 'Unlawful Combatants' fall outside both 'POW' status and 'protected persons' status, or that the findings of the International Criminal Tribunal for the Former Yugoslavia and position of the Red Cross is incorrect. The Conventions as ratified by the U.S. are outdated and don't adequately address the issues of modern warfare, which is why guerrillas/commandos/mercenaries are addressed in Article 44 of the Unratified Protocol 1. While I don't agree that combatants who hide among civilians should be granted POW status, that doesn't mean I'm going to pretend that the Conventions as recognized allow us to create a separate classification and do whatever we like with them and still remain in compliance simply because it's vague.

< Message edited by Bufotenin -- 1/14/2008 11:48:04 PM >

(in reply to luckydog1)
Profile   Post #: 43
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/15/2008 1:51:55 PM   
luckydog1


Posts: 2736
Joined: 1/16/2006
Status: offline 		Bufo, I never argued that we can "do anything we like with them".  In fact I argued that people saying they can be shot are wrong.  But feel free to argue against something I never said, and use lots of quote fragments out of context, It really does bolster your argument.

Geneva is quite clear that unlawfull combatants do not qualify as PP or POW.  What a "competent tribunal" means is left undefined.  I see no reason to assume it means full American Civilian Due Process.  Genevea is quite clear, they can be held in secret with no communication, pending security needs as defined by the holding power.  If you don't like that take it up with Geneva.  I didn't write the document.

< Message edited by luckydog1 -- 1/15/2008 1:52:39 PM >

(in reply to Bufotenin)
Profile   Post #: 44
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/15/2008 2:39:30 PM   
NorthernGent


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Status: offline 		General Reply:

The conventions etc are of secondary importance; assuming you value liberty, the key issues are innocent until proven guilty and the right to a fair trial before an objective jury.

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(in reply to luckydog1)
Profile   Post #: 45
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/15/2008 4:14:59 PM   
Bufotenin


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Joined: 9/23/2007
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quote:

ORIGINAL: luckydog1

Bufo, I never argued that we can "do anything we like with them".  In fact I argued that people saying they can be shot are wrong.  But feel free to argue against something I never said, and use lots of quote fragments out of context, It really does bolster your argument.

Geneva is quite clear that unlawfull combatants do not qualify as PP or POW.  What a "competent tribunal" means is left undefined.  I see no reason to assume it means full American Civilian Due Process.  Genevea is quite clear, they can be held in secret with no communication, pending security needs as defined by the holding power.  If you don't like that take it up with Geneva.  I didn't write the document.


Please point-out the quote fragments I've taken out of context. And, again, please show me where in the Conventions it is "quite clear that unlawful combatants do not qualify as PP or POW", which is the exact opposite of the position held by the Red Cross and the findings of The International Criminal Tribunal for the Former Yugoslavia.

Nowhere did I equate a 'competent tribunal' with 'American Civil Due Process'. My point was that according to the Geneva conventions combatants are clearly to be treated as POWs until a competent tribunal determines their status, not automatically classified as 'unlawful combatants' as the administration did.

"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."

And as I've pointed-out numerous times, Convention IV Article V makes a clear exception in the event of trial. It also says nothing about the legality of holding them 'in secret', which is a new claim of yours.

You never argued that we 'can do anything with them', however, as according to you they're not classified as either 'POWs' or 'protected persons' and the Conventions don't explicitly provide for the rights of any category outside of 'POW' and 'protected persons', then the Conventions provide them no protections outside the aforementioned "right to fair and regular trial", the vague undefined requirement that they "be treated with humanity", and restoration of full rights as a protected person whenever the Occupying power decides they're not a security threat.

It's fairly obvious that you didn't write them. If you did you might be able to use some of the actual text as proof of your assertions instead of repeating them, unsupported, ad nauseum.

(in reply to luckydog1)
Profile   Post #: 46
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/15/2008 7:36:59 PM   
luckydog1


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Status: offline 		BUFO, but they were originally treated as POW's (Often under Afghani custody).  Then after thier cases were examined, some were deemed a serious threat and brought to Gitmo or other places, and held without communication.  I think that satisfies the Competant Tribunal requirement.  I do not see why they would bother to explicitly state the requirments to recieve the Protections, if they have no relevance.  You are right we are dealing with people that do not fit directly into the catagories, and there is a large grey area.  The fact is that except for the no Communication rule, they are getting all the Geneva Protections.  they get fed well, medical care, religous literature, ect.   When they are abused, trials occur and people face punishment.  They do have access (albeit limited) to the Civil Courts.  If you wish to present something from Yugoslavia, feel free to.  You haven't yet, but cite it as if you had.  If you have a case about Al queda type fighters in Yugoslavia, I would be glad to see it.  My understanding is that the death squads were legally linked to Milsovicks Gov, please educate me on this if I am wrong.

I thought this was a thread about a specific legal case, not everyones general wish for what should be done.  IF we are going with our personal feelings, I think it must be part of it that people who fight outside the Laws of War face extra penalties.  I think the idea of letting them abuse a loophole to gain a tactical advantage is fucking stupid.  They are not civilians, and Geneva is quite clear that they are not Regular POWs either.  Again we cant kill them at will, pour acid on thier faces, or let them rot in rat feces;  and that is not what we are doing.

(in reply to Bufotenin)
Profile   Post #: 47
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/15/2008 9:24:48 PM   
Muttling


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Joined: 9/30/2007
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quote:

ORIGINAL: NorthernGent

General Reply:

The conventions etc are of secondary importance; assuming you value liberty, the key issues are innocent until proven guilty and the right to a fair trial before an objective jury.



With all due respect this is really not true.   However, it is at the crux of the legal issues with the Bush Administration's attitude towards the Gitmo prisoners.


If you are taken to be a POW then you have no right to due process or a trial.   You are a prisoner of war and you will be kept prisoner until that war is concluded.    You do NOT have right to contest your status as a POW, but you do have right to be treated in a certain way.  In short, the side who captured you doesn't have to prove anything about you but they do have to treat you with a level of respect that is not given criminals and they do have to return you to your homeland when the war is over.

If you are taken to be a criminal, then you have right to a fair and timely trial for your crimes.   This is VERY different than a POW because the country who captured you is now stricken with a burden of proof.   They must PROVE your crimes.  If they fail to do so then they must prove why you should be taken as a POW and still be detained despite your innocence.

The prisoners in Guantanimo have been declared "enemy combatants" which is NOT defined by international law.   The administration is picking and choosing what laws they want to apply to these prisoners instead of declaring them POWs, criminals, or spies.

This has created an HUGE legal issue and was very short sighted on the part of the administration.   In many cases, they have quite a bit of evidence as to the individuals being criminals but that evidence has been obtained through torture or through other methods than can not be verified in court.   As a result, they have no hope of pressing criminal charges.   At the same time, they can't claim they are POWs since they are in serious violation of the appropriate treatment of POWs.    

The first response of the administration was to try to hand them over to their home country for trial and they demanded a trial be held before they turned them over.   The home countries have consistently stated that "America does NOT have substantial evidence to try them and we can't put them on trial given the evidence you have provided us."  So we are stuck in yet another quagmire created by the administration's short sighted stupidity.

(in reply to NorthernGent)
Profile   Post #: 48
RE: US Judges -- Gitmo Prisoners are Sub-Human - 1/16/2008 2:57:54 PM   
luckydog1


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Status: offline 		Bufo   "You never argued that we 'can do anything with them', however, as according to you they're not classified as either 'POWs' or 'protected persons' and the Conventions don't explicitly provide for the rights of any category outside of 'POW' and 'protected persons', then the Conventions provide them no protections outside the aforementioned "right to fair and regular trial", the vague undefined requirement that they "be treated with humanity", and restoration of full rights as a protected person whenever the Occupying power decides they're not a security threat. "

There is no right to a fair trial here.  You are misreading it, intentionally.  I have posted no quotes, because you already posted the relevant ones.  I just cited the treaty and article, assuming that anyone who cares, would go read the thing in full.  It does not give them a right to a fair trial to detrmine if they can be held.  They can be held, without commmunication, untill the security situation is resloved.  Then they must be let go.  IF you wanted to put additional charges on them, you would have to hold a trial, and it would have to be fair.  For example if you wanted to EXECUTE a detainee for setting a bomb in a school, a fair trial would be required.  If you wanted to hold them after the war, a fair trial would be required.  If you wanted to charge them with a civil crime occuring while they were operating in the field (ie a Jordanian Al queda fighter was raping local women in Iraq), they get a fair trial.   In no way does Geneva demand a fair trial to hold them.  A competent tribunal makes that call.  Which is a vauge undefined term. 

Some people keep refering to the Propaganda value of this issue.  Whihc is simply a massive misunderstanding of Propaganda and how it works.  Coke isn't really the "real thing", nor is Pepsi, actually " the choice of the new generation".  Propaganda is not based on real events.  The reality of this is that Al queda has caught people it alledges are unlawfull combatants, ie spies fighting out of uniform.  Daniel Pearl was one.  Was he really CIA?  I don't know.  Lets assume he was...So a tribunal detrmined to be competent by Al queda determines he is a CIA agent and takes him into detention.  OK.   How was he treated?  Did he get a fair trial before they cut off his head on video?  If he was a CIA agent he knew he was risking being caught by these guys, but did they even give a pretense of following Geneva?  Do any of the Anti Americans care at all?  NO  Simply looking at the facts we are trying very hard to comply, and in fact losing tactical advantage at times for it, while the other side doesn't even pretend to honor them, and directly targets civilians.  Yet America is the Bad Guy?  Prropaganda has nothing to do with reality.

(in reply to Muttling)
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RE: US Judges -- Gitmo Prisoners are Sub-Human - 2/11/2008 12:31:05 PM   
RealityLicks


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Status: offline 		FR

With charges being pressed against Khalid Sheikh Muhammad and the other 9-11 conspirators, has the US administration slipped up again?  Military courts are to be used, as expected, so teh evidence obtained by torture will apparently be allowed to be admitted. 

But bearing in mind that many countries will not in future be able to extradite prisoners to the US, because of their abolition of Habeas Corpus, has not more damage been done to US security in the long term?

Also, how will enemy combatants feel toward future captured GIs, knowing that the US has broken the terms of the Geneva Convention? 

The trials are going to be secret in all but name. Is that appropriate, given that 9-11 has always been seen as an attack on the West, not simply the US?

(in reply to farglebargle)
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RE: US Judges -- Gitmo Prisoners are Sub-Human - 2/13/2008 5:17:27 AM   
Loveisallyouneed


Posts: 348
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From: Ontario, Canada
Status: offline 		Has anyone compared American treatment of terrorists with the Nazi treatment of their terrorists (French undergorund and other partisan-led guerilla movements)?

Isn't Guantanamo just a modern re-write of the "Nicht und Nebel" (:Night and Fog") decree?

(in reply to farglebargle)
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RE: US Judges -- Git Prisoners are Sub-Human - 2/13/2008 6:33:25 AM   
thompsonx


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quote:

ORIGINAL: OrionTheWolf

More good reasons to pull out of the Geneva Convention. If the US signs a treaty, they need to hold themselves to it, as that is showing honor. Instead they need to stop putting themselves into positions they will not be able to hold.

OrionTheWolf:
If we consider the number of treaties that the U.S. has signed and compare that list with the number of treaties that we have kept  we have a pretty short list.  I am with you if you don't want to keep your word then don't give it.
thompson





(in reply to OrionTheWolf)
Profile   Post #: 52
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