The Legal Framework for Gitmo

[sharrukin]

These guys are not POW's nor are they civilians. They are 'unlawful combatants', and this means they get due process protections under the UCMJ (Uniform Code of Military Justice), but they are not covered by American constitutional protection, nor the Geneva Convention. They do not get the same protections as a civilian (Noncombatants). Lawful Combatants get the POW protections. Unlawful combatants being saboteurs, spies, bandits and terrorists do not.

Older examples of what was intended.

From 1863 "Lieber Code" (Civil War field manual, art 82):
"Men, or squads of men, who commit hostilities. . . without being part and portion of the organized hostile army, and without sharing continuously in the war . . . are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

http://www.law.umkc.edu/faculty/proj...aw/quirin.html
From Ex Parte Quirin:
". . . an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war . . . "

http://www.genevaconventions.org/

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the 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.

(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.

In no case does it extend to those who wage war by stealth, in civilian guise, not being commanded by a person responsible for his subordinates, without fixed distinctive sign recognizable at a distance, not carrying arms openly, and not conducting their operations in accordance with the laws and customs of war.

It would IMO apply to the Taliban militia as they are clearly defined as separate from the civilian population (black turbans and scarves) and the PLO militia (again scarves, red checkered IIRC). It would not apply to non-militia terror groups. This doesn't mean these people couldn't be tried for warcrimes, and IMO many of them should be.

In addition the US hasn't signed Protocol I to the Geneva Conventions.

Article 16 of the CAT (Convention Against Torture) would apply as far as I can see.
"undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Guantanamo is under US jurisdiction by any rational standard. Does anyone know why it is held that Guantanamo is exempt from this?

The Uniform Code of Military Justice. Prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134).

The Federal Torture Statute: 18 U.S.C. §§ 2340-2340A clearly applies as well.

I believe that they can be shot (and should be if Al Qaeda) but not tortured. What constitutes torture is of course the question. An execution would require a court or tribunal I believe, but not the extensive kind we are used to. A summary judgement as to the facts would probably be enough.

[Gawain of Orkeny]

McCarthyism, named for Senator Joseph McCarthy of Wisconsin, was a period of intense anti-communism in the United States primarily from 1950 to 1954, when the U.S. government was actively engaged in suppression of the American Communist Party, its leadership, and others suspected of being Communists or Communist sympathizers. During this period people from all walks of life became the subject of aggressive witch-hunts, often based on inconclusive or questionable evidence. It grew out of the Second Red Scare that began in the late 1940s.

Of course the fact that Mc Carthy was for the most part correct is the real falacy here. I suppose there was no communist trying to take over the US. Joe made it all up. If you repeat a lie often and long enough people believe you.

[Redleg]

I believe that they can be shot (and should be if Al Qaeda) but not tortured. What constitutes torture is of course the question. An execution would require a court or tribunal I believe, but not the extensive kind we are used to. A summary judgement as to the facts would probably be enough.

The Hague Conventions of 1907 cover the spefics that a waring party must do in regards to summary judgements for individuals who fall within that catergory.

[sharrukin]

The Hague Conventions of 1907 cover the spefics that a waring party must do in regards to summary judgements for individuals who fall within that catergory.

Thanks I will look into that.