A Supreme Court Hamdan Guide

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Originally Posted by Pindar

Interesting, can you provide an example? Recall the criteria for a uniform is stipulated in the Convention (clear insignia visual from a distance). If this doesn't exist then they fail to meet one of the necessary criteria for POW status.

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I believe Redleg's post made this argument irrelevant, even if you could prove that the Taliban had no uniform. He notes the circumstances under which a uniform is not necessary. Perhaps you should reply to that?

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I didn't respond to Articles 27 or 37 because they didn't really apply. If you read either you will note both are stipulations for prisoner of war status. If the detainee's aren't recognized as POW's then neither apply. Even so, I don't know that either of these were denied.

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Ah, the wonderful old lawyer-speak. Explain how you are using 'really' please-- do you mean you're wrong, but won't admit it outright? And whether you know that the detainees rights were denied or not is rather immaterial.

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Now, regarding my question: how are the Taliban a legally constituted militia? Do you have an answer or can we dismiss this idea?

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Again, I refer you to Redleg's post. They qualify for protected status if they have a command structure/are a spontaneous uprising against a foreign invasion. Can we now dismiss your ideas?

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This is what the SCOTUS Ruling referred to. This was part of the Stevens Opinion.

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And this is why you are now officially wrong.

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Originally Posted by Hurin_Rules

I believe Redleg's post made this argument irrelevant, even if you could prove that the Taliban had no uniform. He notes the circumstances under which a uniform is not necessary. Perhaps you should reply to that?

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Are you conceding to Redleg to make you case for you? Under the GC a uniform is a set condition for being able to claim prisoner of war status. Its absence dismantles the claim.

You claimed Taliban had uniforms: where is the proof of the pudding?

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Ah, the wonderful old lawyer-speak. Explain how you are using 'really' please-- do you mean you're wrong, but won't admit it outright? And whether you know that the detainees rights were denied or not is rather immaterial.

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There is nothing technical in what I posted. Even so, 'really' is an adverb. In this sentence: " I didn't respond to Articles 27 or 37 because they didn't really apply." it modifies apply. This means I recognize there was an attempt to engage the topic, but it failed in applicability. The reasons for that failure are both Articles 27 and 37 are POW specific. Thus, if a person isn't a POW then anything from either Article doesn't apply. Since you choose to focus on grammar rather than content I assume this point isn't in contention.

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Again, I refer you to Redleg's post. They qualify for protected status if they have a command structure/are a spontaneous uprising against a foreign invasion. Can we now dismiss your ideas?

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The kowtowing to Redleg is impressive. Unfortunately, it doesn't apply: a spontaneous uprising against a foreign invasion doesn't constitute the criteria for a legally constituted militia which was your claim. Moreover, the Taliban were controlling vast swaths of Afghanistan from 1996. This is chronologically problematic for a spontaneous uprising against an invader argument.

Again, where is the substance to the claim the Taliban are a legally constituted militia?

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And this is why you are now officially wrong.

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Wrong about what, that it's a bad decision? If so, how is one officially wrong about that?

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Originally Posted by Gelatinous Cube

Hey now, I followed that up with quite a bit more text. Don't be a poor sport. :inquisitive:

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There was more to your post, but the first sentence invalidated all that followed. I don't think you understood the point I was addressing.

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Originally Posted by Gelatinous Cube

Now you're just being evasive. :juggle2:

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No, I don't think you understood the point.

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Originally Posted by Gelatinous Cube

Now you're just being evasive. :juggle2:

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Pindar? Evasive? Surely not? Oh the horror.

:wink: :laugh4:

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Originally Posted by Banquo's Ghost

Pindar? Evasive? Surely not? Oh the horror.

:wink: :laugh4:

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This post is invalidated by the fact you have previously quoted Noam Chomsky in a political context.

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Originally Posted by Pindar

This post is invalidated by the fact you have previously quoted Noam Chomsky in a political context.

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My sense of self-worth is now destroyed. I hope you can live with yourself.

:wink:

Ah, more of Pindar's evasive, 'depends on what the meaning of is is' routine, with the added benefit that this time he is in his element (the question being one of international law), so he can dodge and weave for hours on end. More fun for us all.

Anyway, the central point which you continually fail to address is that the Taliban were the government of Afghanistan, and Afghanistan is a party to the Geneva Conventions. If you wish to deny this, then you'd have to deny that a massive host of nations--including Iran, Iraq, Cuba, Hungary, Russia, etc. etc.--are signatories to the Conventions, since their governments have changed since their nations signed as well (as Aenlic pointed out in another thread). This would mean that very few countries at all are bound by the Geneva Conventions. And that is pretty ridiculous.

Moreover, even if we accepted your argument on this point, when the Taliban, with their organized command structure, rose up against a foreign invasion (by the US and its allies), those fighting were entitled to the protections of the Geneva Conventions. Those imprisoned, wounded or otherwise hors de combat are always entitled to the same protections. Pretty much everyone has now admitted this--even the Bush administration--but if you want someone to keep explaining to you what you already know in excruciating detail, I, for one, am done playing along.

I respect that you disagree with the SCOTUS decision, Pindar, and you make some very good points. I disagree with some of SCOTUS's rulings as well (eminent domain, anyone?). I just wish that you, as an expert in this field, would give the other side full due rather than being evasive and obfuscatory, explain the story with a bit more objectivity and not try to browbeat or belittle your opponents--especially when their position keeps winning in the courts.

Enjoy the argument, all, I am out to enjoy the summer.

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Originally Posted by Pindar

I asked about this statement: "Balance and control between the branches requires that one is not more powerful than others." I don't understand your verbiage: why "requires"? Historically, this doesn't seem the case. Functionally this doesn't seem the case either.

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There still seems to be a misunderstanding concerning the word "balance". When standing on one foot you need balance in order not to fall down, but that does not mean stability and balance are always connected. Balance requires equalness because of conceptual aspects. If two entities are unequal in power, there is no balance between them. Even if they form a stable system.
Now this may seem entirely semantical, because balance - such defined - is not necessarily something to be desired (as I said, some systems need imbalance to function). But I think there is reason to believe - without having rigorous proof - that balance between the powers that govern a nation is a desirable thing.

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Sounds like somebody is conflating law with morality.

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Possibly, however, one should contemplate the option that the person in question is you. This is assumption of course, but I think that when Pape confronted you with a fictional scenario and asked you whether you find it okay, he was not investigating a jurisdical question. It was an ethical question. Should your answer be devoid of an ethical statement, then it was in fact not an answer. I tried to follow the Principle of Charity by not taking this interpretation.

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Originally Posted by Gelatinous Cube

Well if you're so positive, maybe you should reply to the post as a whole in order to prove your case, instead of just making evasive remarks.

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"If (I'm) so positive" that I don't think you understood the point? Hmmm.

Your post seems important to you. OK, What is the thrust of this question: "Why does unelected status warrant equal standing with an elected branch of government?" The comparison is between two distinct branches of Government with the question raised why an unelected branch should have parity with an elected branch. The root question revolves around the wherewithal that allows a branch of government to claim any authority at all. A branch that is immediately amenable to the people can claim its authority insofar as it is amenable to the people. An unelected branch cannot make this claim. Thus, the question: what is the basis of its claim? Now, regarding your "whole post" the series of three questions: "Why does one man get to play life or death with laws? (Presidential Veto), Why do I have to pay a Property Tax, as though somehow I owe the State for my property? (Property Taxes, obviously), Why do we allow unelected men to control the life and death of millions during a war? (JCS)*" Do not relate to the focus.

*I don't know what JCS is supposed to mean.

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Originally Posted by Banquo's Ghost

My sense of self-worth is now destroyed. I hope you can live with yourself.

:wink:

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I'm sorry. I think you have worth even as a ghost.~:grouphug:

Besides, I love Macbeth.

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Originally Posted by Hurin_Rules

Ah, more of Pindar's evasive, 'depends on what the meaning of is is' routine...

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My position is quite clear. The ruling is a bad decision and I explained why.

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Anyway, the central point which you continually fail to address is that the Taliban were the government of Afghanistan, and Afghanistan is a party to the Geneva Conventions. If you wish to deny this, then you'd have to deny that a massive host of nations--including Iran, Iraq, Cuba, Hungary, Russia, etc. etc.--are signatories to the Conventions, since their governments have changed since their nations signed as well (as Aenlic pointed out in another thread). This would mean that very few countries at all are bound by the Geneva Conventions. And that is pretty ridiculous.

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Continually failed to address? Afghanistan is a signatory of the GC. The Taliban are not. I pointed this out. The Taliban regime was not recognized by the U.S. I pointed this out. More to the point, this does not address POW status which is not dependant on simple GC signatory status. There are set criteria all of which must be met. I pointed out one as a simple example: uniforms. Despite your insistence these did in fact exist, you couldn't present an example. The Taliban fail to meet this criteria. They thus fail to meet the criteria for POW status.

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Moreover, even if we accepted your argument on this point, when the Taliban, with their organized command structure, rose up against a foreign invasion (by the US and its allies), those fighting were entitled to the protections of the Geneva Conventions.

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This notion has been addressed. It is flawed. The Taliban predate the U.S. war in Afghanistan. They were controlling most of the country by 1996. Your history is incorrect. This impacts the legal claim.

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I respect that you disagree with the SCOTUS decision, Pindar, and you make some very good points. I disagree with some of SCOTUS's rulings as well (eminent domain, anyone?). I just wish that you, as an expert in this field, would give the other side full due rather than being evasive and obfuscatory, explain the story with a bit more objectivity and not try to browbeat or belittle your opponents--especially when their position keeps winning in the courts.

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This thread was not intended as simply a statement of what occurred. It is not a response to someone asking for a simple brief or rundown of the jurisprudence. It is partisan. I am partisan. To quote Disraeli: "I am a man of the Party" The thread at the top of the first post notes: "This was a bad decision". This is a judgment. It then proceeds to explain the wherefore of that judgment. To complain about a partisan piece for being partisan is to fail to understand the basic point.

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Originally Posted by A.Saturnus

There still seems to be a misunderstanding concerning the word "balance". When standing on one foot you need balance in order not to fall down, but that does not mean stability and balance are always connected. Balance requires equalness because of conceptual aspects. If two entities are unequal in power, there is no balance between them. Even if they form a stable system.
Now this may seem entirely semantical, because balance - such defined - is not necessarily something to be desired (as I said, some systems need imbalance to function). But I think there is reason to believe - without having rigorous proof - that balance between the powers that govern a nation is a desirable thing.

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This doesn't answer my question. I take it you hold this statement: "Balance and control between the branches requires that one is not more powerful than others." is then the correct. Why 'requires'?

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Possibly, however, one should contemplate the option that the person in question is you. This is assumption of course, but I think that when Pape confronted you with a fictional scenario and asked you whether you find it okay, he was not investigating a jurisdical question. It was an ethical question. Should your answer be devoid of an ethical statement, then it was in fact not an answer. I tried to follow the Principle of Charity by not taking this interpretation.

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Actually I thought/think Pape was asking a jurisprudential question given law is the larger focus. Even so, I don't think my response was devoid of ethical content either. The last sentence was: "one should avoid lands whose legality they question." I don't know how that leads to your initial impression as it sounds fairly categorical.

I was looking to see if the principle of reciprocity was being applied.

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Originally Posted by Papewaio

I was looking to see if the principle of reciprocity was being applied.

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There ya go.

Both the jurisprudential version and the ethical one.

ie treaties/law/justice and golden rule/karma/equality.

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Originally Posted by Pindar

The Taliban regime was not recognized by the U.S. I pointed this out.

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The other government doesn't have to be "recognized" for their soldiers to get POW status. Surely you know this?

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Originally Posted by Gelatinous Cube

JCS = Joint Chiefs of Staff. It was late at night and I was felt like being a lazy typer.

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I see.

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Basically, the point of my post is that you can't doubt the power of the Supreme Court while at the same time supporting all of that crazyness. If you try to invalidate the SCOTUS, you have to invalidate all that other stuff which is easily less democratic.

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Thus, your point has nothing to do with my post(s)/point.

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Originally Posted by Papewaio

Both the jurisprudential version and the ethical one.

ie treaties/law/justice and golden rule/karma/equality.

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There ya go.

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Originally Posted by Spetulhu

The other government doesn't have to be "recognized" for their soldiers to get POW status. Surely you know this?

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Read the sentence that follows the one you referenced. Then read the next two sentences that follow that one.

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Originally Posted by Pindar

I'm sorry. I think you have worth even as a ghost.~:grouphug:

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:bow:

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Originally Posted by Pindar

Besides, I love Macbeth.

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There ya go. Always on the side of the incumbent right wing power, no matter what his crimes.

:wink:

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Originally Posted by Banquo's Ghost

There ya go. Always on the side of the incumbent right wing power, no matter what his crimes.

:wink:

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It wasn't his fault. It was the system.

:beatnik: Speak truth to power! :hippie:

Gotta love it when Pindar steps down from the mountain. :egypt:

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Originally Posted by Pindar

This doesn't answer my question. I take it you hold this statement: "Balance and control between the branches requires that one is not more powerful than others." is then the correct. Why 'requires'?

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Hmm, I thought I explained that. Here:

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Balance requires equalness because of conceptual aspects. If two entities are unequal in power, there is no balance between them. Even if they form a stable system.

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I say "requires" because according to the definition I'm using balance cannot be there if powers are unequal.

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Actually I thought/think Pape was asking a jurisprudential question given law is the larger focus. Even so, I don't think my response was devoid of ethical content either. The last sentence was: "one should avoid lands whose legality they question." I don't know how that leads to your initial impression as it sounds fairly categorical.

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Ok, then. But that sounds like blaming the victim. Do you not have any moral critique on those countries in the hypothetical situation?