A Supreme Court Hamdan Guide

[Pindar]

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

The crux of the decision:

The Military commision regimen is unauthorized as it currently stands.

Important but perhaps missed facts:

-There were actually two major elements to the ruling. The first concerned whether the Court could even hear the case. This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners. Here is part of the language for the Act:

"[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

The majority opinion argued the language of the statue was too vague so they could in fact rule on Hamdan's case. Justice Scalia's scathing dissent was contrary this view. The second element concerned the commission system which the Court ruled is presently unauthorized. The main points as presented by Justice Steven's majority opinion were: the present commision format is not consistent with the Uniform Code of Military Justice,* and violates the relevant Geneva Conventions**: notably Article 3 which is found in each Convention. This is what most commentary has focused on, but it is not the key element of ruling.

-Justice Kennedy wrote a concurring opinion. A concurring opinion is where a Justice, has sided with the majority, but the rationale that led to his siding is distinct. Justice Kennedy's opinion is the narrower opinion and as such is where the teeth of the ruling are found. Why? Because on practical grounds when a new challenge is brought, the Government merely has to met the standards set by Kennedy to pull him, by his own opinion, to their side and thus effectively overturn the Hamdan ruling. Recall, four Justices (including Chief Justice Roberts in the D.C. Circuit) have already affirm the Administration's position. Justice Kennedy's opinion turns on the notion of procedural fairness specifically in regards to the military commissions and courts martial as dictated by Congress and that the commissions lacked Congressional oversight. To whit he wrote:

"In sum, as presently structured Hamdan's military commission exceeds the bounds Congress has placed on the President's authority in...the UCMJ. Because Congress has placed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws."

Legal Fall Out:

In this ruling the Judiciary has stepped into an area where both the Congress and the Executive have already staked out ground. By side stepping the will of the Congress in its 2005 Detainee Treatment Act. Congress is likely to pass a 2006 Detainee Treatment Act with even more explicit language thereby stripping the Court completely of jurisdiction. The other possibility is based on Kennedy's opinion, the Congress simply has to pass a statute whereby UCMJ rules on military commissions apply to Guantanamo detainees.

Political Fall Out:

This is the silver lining in the ruling. The GOP can use this ruling as an illustration why constructionist judges are needed on the bench as opposed to judges whose political agenda determines their ruling on the law. This is a hot issue in GOP circles as noted by the coup that brought Justice Alito to being a nominee. An impassioned use of this poor ruling could incite enough base support to insure Congressional control through to 08.

Conclusion:

If court rulings paralleled the weather this is a tropical storm, but not a hurricane: bad but not devastating.


*Regarding the Uniform Code of Military Justice

Spoiler Alert, click show to read: 

This is a key extract from Justice Stevens opinion and the response from Justice Thomas:

Jusitce Stevens:

"Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President’s Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial."

Justice Thomas' dissent:

"Nothing in the text of Article 36(b) supports the Court’s sweeping conclusion that it represents an unprecedented congressional effort to change the nature of military commissions from common-law war courts to tribunals that must presumptively function like courts-martial. And such an interpretation would be strange indeed. The vision of uniformity that motivated the adoption of the UCMJ, embodied specifically in Article 36(b), is nothing more than uniformity across the separate branches of the armed services. See ch. 169, 64 Stat. 107 (preamble to the UCMJ explaining that the UCMJ is an act “[t]o unify, consolidate, revise, and codify the Articles of War, the Articles for the Government of the Navy, and the disciplinary laws of the Coast Guard”). There is no indication that the UCMJ was intended to require uniformity in procedure between courts-martial and military commissions, tribunals that the UCMJ itself recognizes are different. To the contrary, the UCMJ expressly recognizes that different tribunals will be constituted in different manners and employ different procedures. See 10 U. S. C. §866 (providing for three different types of courts-martial— general, special, and summary—constituted in different manners and employing different procedures). Thus, Article 36(b) is best understood as establishing that, so far as practicable, the rules and regulations governing tribunals convened by the Navy must be uniform with the rules and regulations governing tribunals convened by the Army. But, consistent with this Court’s prior interpretations of Article 21 and over a century of historical practice, it cannot be understood to require the President to conform the procedures employed by military commissions to those employed by courts-martial.

Even if Article 36(b) could be construed to require procedural uniformity among the various tribunals contemplated by the UCMJ, Hamdan would not be entitled to relief. Under the Court’s reading, the President is entitled to prescribe different rules for military commissions than for courts-martial when he determines that it is not “practicable” to prescribe uniform rules. The Court does not resolve the level of deference such determinations would be owed, however, because, in its view, “[t]he President has not . . . [determined] that it is impracticable to apply the rules for courts-martial.” Ante, at 60. This is simply not the case. On the same day that the President issued Military Commission Order No. 1, the Secretary of Defense explained that “the president decided to establish military commissions because he wanted the option of a process that is different from those processes which we already have, namely the federal court system . . . and the military court system,” Dept. of Defense News Briefing on Military Commissions (Mar. 21, 2002) (remarks of Donald Rumsfeld), . . . and that “[t]he commissions are intended to be different . . . because the [P]resident recognized that there had to be differences to deal with the unusual situation we face and that a different approach was needed.” Ibid. The President reached this conclusion because “we’re in the middle of a war, and . . . had to design a procedure that would allow us to pursue justice for these individuals while at the same time prosecuting the war most effectively. And that means setting rules that would allow us to preserve our intelligence secrets, develop more information about terrorist activities that might be planned for the future so that we can take action to prevent terrorist attacks against the United States. . . . * * * ” Ibid. (remarks of Douglas J. Feith, Under Secretary of Defense for Policy (emphasis added)).

The Court provides no explanation why the President’s determination that employing court-martial procedures in the military commissions established pursuant to Military Commission Order No. 1 would hamper our war effort is in any way inadequate to satisfy its newly minted “practicability” requirement."

**Regarding the Geneva Conventions:

Spoiler Alert, click show to read: 

Justice Stevens:

"While the term “regularly constituted court” is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines “‘regularly constituted’” tribunals to include “ordinary military courts” and “definitely exclud[e] all special tribunals.” GCIV Commentary 340 (defining the term “properly constituted” in Article 66, which the commentary treats as identical to “regularly constituted”);64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court “specially constituted for a particular trial”). And one of the Red Cross’ own treatises defines “regularly constituted court” as used in Common Article 3 to mean “established and organized in accordance with the laws and procedures already in force in a country.” Int’l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that “ordinary military courts” will “be set up in accordance with the recognized principles governing the administration of justice”).

The Government offers only a cursory defense of Hamdan’s military commission in light of Common Article 3. See Brief for Respondents 49–50. As Justice Kennedy explains, that defense fails because “[t]he regular military courts in our system are the courts-martial established by congressional statutes.” Post, at 8 (opinion concurring in part). At a minimum, a military commission “can be ‘regularly constituted’ by the standards of our military justice system only if some practical need explains deviations from court-martial practice.” Post, at 10. As we have explained, . .. . no such need has been demonstrated here."

Justice Alito's dissent:

"I see no basis for the Court’s holding that a military commission cannot be regarded as “a regularly constituted court” unless it is similar in structure and composition to a regular military court or unless there is an “evident practical need” for the divergence. There is no reason why a court that differs in structure or composition from an ordinary military court must be viewed as having been improperly constituted. Tribunals that vary significantly in structure, composition, and procedures may all be “regularly” or “properly” constituted. Consider, for example, a municipal court, a state trial court of general jurisdiction, an Article I federal trial court, a federal district court, and an international court, such as the International Criminal Tribunal for the Former Yugoslavia. Although these courts are “differently constituted” and differ substantially in many other respects, they are all “regularly constituted.”

If Common Article 3 had been meant to require trial before a country’s military courts or courts that are similar in structure and composition, the drafters almost certainly would have used language that expresses that thought more directly."

[Pindar]

.....

[Xiahou]

Interesting stuff Pindar. The decision has recieved scant little analysis from what I've seen that goes beyond the headlines.

Im still not totally sure how I feel about the "rightness" of the ruling. But in the real sense, I think it's probably going to work out for the best since Congress will spell out in no certain terms what it's intentions were.

[Crazed Rabbit]

Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees.

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

[Aenlic]

Gee, could that be so they wouldn't be able to use government evidence for nefarious puposes? And their lawyers were allowed to be present at all times. It's happened before in racketeering cases.

Crazed Rabbit

Uniform Code of Military Justice
Title 10, Subtitle A, Part II, Chapter 47
Subchapter VII, § 839 (b)

"(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge."

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court. And above is the applicable section on military court proceedings, specifying that all proceedings other than the deliberations or vote must be conducted in the presence of the accused. End of story.

As for the bit about racketeering cases in which the accused weren't allowed to be present at their own trial, I'm going to need to see some proof. The SCOTUS has ruled time and again that a defendant has the right to be present at his or her own trial and may only be absent under a very limited set of conditions, such as voluntarily waiving that right, or being removed for being disruptive. That's it. The possibility that the defendant may hear some secret bit of evidence against him or her is not among those exceptions.

U.S. CodeTitle 18, Appendix - Federal Rules of Criminal Procedure, Rule 43. Not that the SCOTUS rulings with which this rule applies are listed at the bottom.

Sorry, Crazed Rabbit, not going to fly unless you show me proof that I'm mistaken. If so, I'll withdraw my statement about racketeering cases you've claimed. However, the recent SCOTUS ruling and the UCMJ still stand.

[Crazed Rabbit]

The SCOTUS made it very clear that the Bush administration did not show reasonable cause for not using the UCMJ for the creation of a military court.

No, they made it clear that they- who have no experience in such matters, or when the situation warranted such measures- thought that the situation did not warrant military commissions. In short, they exerted authority to determine what they have no knowledge to determine. There is a very clear reason - we are fighting terrorists who seek to destroy and kill us. Thus, it is important to protect national secrets and security.

Crazed Rabbit

[Pindar]

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

Clears throat...says who?

[Aenlic]

Very nice, GC.

Sadly, the only Congressman I know of who keeps a copy of (or can even be proven as having read) the Constitution is Senator Robert Byrd of West Virginia; and he appears to use his mostly to protect his ability to bring massive amounts of pork home to his constituents. And we aren't talking canned Spam here.

[Crazed Rabbit]

If you're so damned sure they're guilty (and granted, I'm sure most of them are), you should have faith in the system to deal with them properly.

They were going to be tried. I have faith in the system, but not in what the terrorists would do with info the prosecution presented.

And Cube, here's the part of the Constitution that comes right after that:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds. This was one such time.

I seem to remember a quote from one of the Founders that the Judiciary was the weakest branch, because they were not given such authority to decide the constitutionality of laws.

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing?

I believe they established a seperate court for such procedings- they did not remove people from judicative authority.

Crazed Rabbit

[Papewaio]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

[Crazed Rabbit]

They are not citizens of the US. We most certianly are not going to give Osama a 12 person jury in New York when we catch him.

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

Those are not relevant, unless you want to get into a match of which judge is less constitutional. I don't think you'd want to do that.

And you saying that bending US law and twisting the meaning of international law is what justices are supposed to do?

Crazed Rabbit

[Papewaio]

Why not give him a jury?

[Pindar]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

b) is incorrect.

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

[Hurin_Rules]

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

Not according to the Geneva Conventions, which the US has signed. And not, moreover, according to your own Supreme Court.

[Papewaio]

b) is incorrect.

Detainees are not criminals. They are enemies of the U.S. They are not necessarily charged with a crime. Military Commissions are not under the Judiciary. They are under the Executive. They are an instrument in war at the discretion of the Executive. There is no necessity ever. Commissions are typically used to sift the captured. For example, I believe some 6000 were originally captured in Afghanistan. Of those, around 600 were initially sent to Gitmo. There is no requirement that any detained be tried. They can be held until the end of hostilities, which could be a lifetime.

Detainees of the War in Afghanistan. The War in Afghanistan has already finished so why aren't they sent home?

[Seamus Fermanagh]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

Pappy:

That's the single best counter-argument I've heard on this. Well smote.

[Pindar]

Aren't the detainees:
a) Persons.
b) Being held for a major crime.

Add to that the Declaration of Independance:
For depriving us in many cases, of the benefits of Trial by Jury:

Surely juries for starters and a fair hearing are a basic part of what is justice in the US?

Pappy:

That's the single best counter-argument I've heard on this. Well smote.

I would agree except that b) is incorrect and the Declaration of Independence doesn't refer to trial by jury.

[Aenlic]

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision. Such as the fact that prior to this decision the military tribunals were going to try the detainees without even being in the presence of the detainees. This directly violates the UCMJ. That is the crux of the decision. To follow the law, the courts must either be constituted with regard to international law, civil law or military law (in the precise form of the UCMJ). The militray tribunals, as previously set up, followed none of those three. The decision makes it very clear that insufficient reason was given to ignore the UCMJ. Thomas tries to toss out a red herring about there being different ways in which military courts are "constituted" for the different branches and the different types of militray courts. And yet, he completely ignores the central issue which is that all of those courts, varied as they are, must still abide by certain standards in regards to the rights of the defendant and certain basic procedures, such as relevance and admissability.

But, nice try, Pindar. I'll give you an E for effort.

To reword it for you in a much simpler form:

Scalia, Thomas and scAlito dissented. It must, therefore, be a reasonable conclusion for the court to make.

Edit: and see, GC? We don't disagree on everything.

[Pindar]

Except, of course, Pindar, that you completely ignored some of the facts in the case which directly led to the decision.

Hello,

You have confused a part for the whole. What I put forward is the basic rationale for the poor decision which includes your reference.

But, nice try, Pindar. I'll give you an E for effort.

Thanks, does it come in blue?

[A.Saturnus]

Well, I certainly know little about the jurisdical details. But what strikes me is this:

This was because in Dec. 2005 the Congress passed the Detainee Treatment Act that removed from Court jurisdiction hearing appeals from Guantanamo prisoners.

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

[Pindar]

How can the legislative make an act that excludes people from judicative authority? Doesn't that refute the whole seperation of powers thing? In any case, I know that any German politician who would suggest such a ridiculous, immoral and illegal act could immediately look for a new job. I would assume that the same is true for any democracy.

The Supreme Court is unelected. The Congress is elected. Under the U.S. Constitution the Congress can determine Court jurisdiction. The trifold separation of powers does not mean each component is equal. Rather, it is tiered: the Legislative Branch is number one as simply demonstrated by the above noted power and the power to impeach the Executive. The Executive is number two in being Commander in Chief of the military. The Judiciary is three in interpreting the law.

[Pindar]

The job of the Supreme Court is to step in when the Legislature and the Executive over-step their bounds.

says who?

I knew that copy of the constitution in the back of "The Federalist Papers" would come in handy one of these days...

The United States Constitution, Article III, Section 2:

The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

This doesn't answer my question. Again, what authority does the Supreme Court have to "step in when the Legislature and the Executive over-step their bounds"?

[A.Saturnus]

The Supreme Court is unelected. The Congress is elected. Under the U.S. Constitution the Congress can determine Court jurisdiction. The trifold separation of powers does not mean each component is equal. Rather, it is tiered: the Legislative Branch is number one as simply demonstrated by the above noted power and the power to impeach the Executive. The Executive is number two in being Commander in Chief of the military. The Judiciary is three in interpreting the law.

Hmm, I must say this is entirely not my understanding of democracy.

[Hurin_Rules]

Quick Summery:

This was a bad decision.

A quick how to tell:

Justice Ginsburg was in the majority and Justice Scalia was in the minority.

Sorry, but the fact that Scalito and Thomas voted against the decision pretty much ensures it was the right one. Just a few of Scalia's 'greatest hits':

On religious pluralism and the separation of Church and State:
"With respect to public acknowledgment of religious belief," Scalia wrote, "it is entirely clear from our nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

On displaying the Ten Commandments and government endorsing religion:
"You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are. And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds."

If the thought of America becoming a theocracy appeals to you, then Scalia is certainly your man. If not, you're very glad he only gets one vote. I'm just a little worried that only five of his fellow justices disagreed with him.

[Pindar]

Sorry for the dely

Why does unelected status warrant equal standing with an elected branch of government?

I tried my best to explain in my post. In essence, they are above politics, and have the authority to curb the excess of the elected branches, should they act against the constitution or morality (yes, my country's laws allow that category, it's a failsafe in the event of an altered or even abolished consitution). Simply, they are meant to prevent a totalitarian regime.

Your view is the Judiciary is above politics so they should be equal in power to duly elected branches? Even assuming an above politics posture is possible, I don't see how this idea justifies empowerment let alone equal power with a branch of government based on popular sovereignty.

[Pindar]

That's a silly question.

"And the light shineth in darkness; and the darkness comprehended it not." St. John 1:5

[Pindar]

I asked because you seemed to implicitely equal balance with stability. Function or stability do not necessarily imply balance. Some things require imbalance to function.

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.

Hmm, I don't really want to interfere with that part of the discussion, but you sound like what some people here call a "moral relativist".

Sounds like somebody is conflating law with morality.

[Pindar]

What is your backpackers guide to avoiding countries if the law changes and is backdated?

The U.S. State Department regularly lists travel advisories.

[Pindar]

I knew you couldn't refrain from that one (although I though you would at least have refrained from making demeaning remarks towards leftists after taking such a beating in that ridiculous thread you posted about emotionalism and leftists; alas, I guess you never did learn your lesson). I'm not going to go down that old road again, diverting the thread while you engage in your usual, deliberately-obtuse, cross-examiner shtick, asking dozens of questions but refraining from simply outlining your own position and saving us all hours upon hours. It is the summer and I don't have the time either for the tedium or for the abuse. You would make our discussion much more edifying if you could restrain your anger at the left and avoid sidetracking the thread through this inflammatory puerility.

I think my position is quite clear. I noted it in the post. Here it is again: "my position is only governments that are amenable to the people are legitimate." This impacts any claimed sovereignty which I explained. If you wish to challenge that view do so. The above offers no challenge. I can only assume this is due to either inability or agreement. So, unless you put something forward we can dispense with the idea of legitimatcy or sovereignty.

Did the Taliban have uniforms distinguishing them as combatants?

Yes.

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.

Nor did you respond when I pointed out that articles 27 and 37 of the Geneva Conventions apply even to 'unlawful' combatants. Nor did you respond to my point about international humanitarian law applying as well.

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.

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

Perhaps you could also respond to this one: does common article 3 of the Geneva Conventions apply to detainees or not?

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

You might also like to explain why Taliban have not been treated as POWs until such time as their status is determined

All sent to Gitmo. were previously sifted through field commissions. This is what determined their status. Recall, some 6000 were originally captured. From that, the initial odd 600 were sent to Gitmo.

You might also like to explain whether the Fourth Geneva Convention regarding the Protection of Civilian Persons applies to the Taleban or not, and where exactly the Geneva Conventions discuss this category of 'unlawful combatants' about which you have spoken.

Taliban were not civilians. They were armed combatants. The Geneva Conventions the U.S. is a signatory to do not discuss this. That is why I mentioned insurgencies, guerillas etc fall through the cracks. This is what Protocol I, introduced in 1977, meant to address. The U.S. refused to sign it because it refused to give terrorists POW status.

[A.Saturnus]

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.

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.

Sounds like somebody is conflating law with morality.

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.