A Supreme Court Hamdan Guide

[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.

[Pindar]

In a rather unexpected reversal, it looks like the Bush administration has finally realized it was wrong and is now admitting that ALL detainees are protected by the Geneva Conventions:

Care to comment, Pindar?

Actually, the Administration is compiling with the SCOTUS Ruling regarding Article III. The Stevens Opinion referred to Article III explicitly. I mentioned this in the initial post of the thread. That is part of the point of the thread. This is one of the reasons I noted the ruling is a bad decision.

[Hurin_Rules]

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.

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?

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.

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.

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

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?

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

And this is why you are now officially wrong.

[Pindar]

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.

"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.

[Pindar]

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

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

Besides, I love Macbeth.

[Pindar]

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

I see.

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.

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

[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.

[Pindar]

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?

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?

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.

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.

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?

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?

And this is why you are now officially wrong.

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

[Pindar]

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

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.

[Pindar]

Now you're just being evasive.

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

[Banquo's Ghost]

Now you're just being evasive.

Pindar? Evasive? Surely not? Oh the horror.

[Pindar]

Pindar? Evasive? Surely not? Oh the horror.

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

[Banquo's Ghost]

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

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

[Hurin_Rules]

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.