From the NYT:
A special military appeals court, overturning a lower court ruling, on Monday removed a legal hurdle that has derailed war crime trials for detainees at Guantanámo Bay, Cuba.
The ruling allows military prosecutors to address a legal flaw that had ground the prosecutions to a halt. The decision, by a three-judge panel of a newly formed military appeals court, was an important victory for the government in its protracted efforts to begin prosecuting some of the 340 detainees at Guantánamo.
The legal flaw involved a requirement by Congress that before the detainees could be tried in military tribunals, they had to be formally declared “alien unlawful enemy combatants.†The problem for prosecutors was that while the detainees had been found by a military panel to be enemy combatants, they had not been specifically found to be unlawful.
Under the ruling, prosecutors will be able to present new evidence to the war crimes trial judge hearing a case to support their contention that a detainee was an unlawful combatant. Until now, only one case has been resolved, that of an Australian citizen who accepted a plea deal in March.
Not being a legal scholar, I would have assumed that the designation “enemy combatant” carried with it, as a rule, the corresponding designation of “unlawful” — (can someone describe a “lawful” alien enemy combatant? I’m not being flip; just curious) — but then, I’m rather simple that way. And anyway, if this is the kind of Constitutional concern that needs to be addressed in order to keep war trials out of criminal courts, then by all means, dot the i’s and cross the t’s.
Still, this seems to be a procedural-based ruling, and so is but a small step in an ongoing legal struggle that is sure to take on more lasting import as it advances.
(h/t STACLU, who links to this explication from SCOTUS Blog:
Detainees’ lawyers have long contended that there are serious flaws in the military commission trial system set up by the MCA. Those complaints were not directly at issue in the CMCR ruling on Monday. Whether those issues will get aired in federal court, before any war crimes trial is completed and a verdict reached, appears to depend upon whether the Supreme Court restores the rights of detainees facing war crimes tribunals to file habeas challenges to their trials. The government has argued that they may file challenges only after being tried and convicted, and may do so only in the D.C. Circuit Court.
That would be a POW, no? And it would be a violation of the Geneva Conventions to prosecute them.
But I thought “enemy combatant” meant they such were not accorded status as part of a foreign army. Which I guess is why the whole Geneva Convention thing with respect to this enemy has me dismayed and a bit confused.
Thanks, though.
Not a Military Lawyer, so I’m picking bits from training over the past several years:
The Geneva Conventions and Laws of Land Warfare designate rules for “lawful” combat. One of the clearest examples of that distinction in the current conflict is the requirement to wear a Uniform to distinguish yourself as a combatant (as opposed to attempting to blend in as cover with the local populace).
In order to be protected under the Geneva Conventions, combatants are required to obey the rules. Those that don’t technically don’t have to be afforded Geneva Protections. That we do provide them to unlawful combatants is largely out of principle/public relations. My understanding is that under international law, we could summarily execute everyone of them when we capture them and it would be, internationally, legally legit. Our own rules prevent us from doing so (stating fact, not judging it to be right or wrong).
But I thought “enemy combatant†meant they such were not accorded status as part of a foreign army.
An “lawful” enemy combatant is a member of a foreign military. Captured Iraqi Army soldiers, properly uniformed etc, would be protected as enemy combatants. Captured U.S. Soldiers would also be covered under this category. Al Qaeda, AQI and the like are unlawful combatants. They do not operate at the directio of a state (not directly anyway) or wear uniforms, distinguish themselves from the population or follow other international law.
A “lawful enemy combatant” is one who operates under the Law of Land Warfare (i.e., Geneva Convention)in that he is in the uniform of and operating under the control of a recognized belligerant power. An unlawful enemy combatant, among other criteria, is one who does not wear a uniform or who otherwise hides his combatant status while engaging in hostile acts — in other words, he can’t be distinguished from a noncombatant just by looking at him, until he starts shooting at you. (A very simplified version. Hayes Parks would have given me a “no go” if I’d answered this way on the Law of War final exam.)
I’m recalling the term for that being unlawful combatant, and I’m interpreting “enemy combatant” combatant quite literally so that it would apply to either a lawful or an unlawful combatant as long as they were fighting against you. Is there a tighter definition of the term that I’m missing?
First time round, that same reporter had said:
I guess not so much really.
We can’t try them until they are found unlawful, and we can’t prove them unlawful until we try them.
And you thought Catch-22 was fiction, din’ ya?
“We can’t try them until they are found unlawful, and we can’t prove them unlawful until we try them.
And you thought Catch-22 was fiction, din’ ya?”
To avoid such an uneasy situation, maybe just killin’ em dead would be the appropriate tactic to take?
But, like Jeff, I have had some trouble understanding the difference, as it pertains to our law and the Geneva Convention, between the “lawful” and “unlawful” enemy combatant. I thought the real deal breaker, as was mentioned above, was the uniform peice. If captured out of uniform, and let’s face it jihadists don’t have uniforms, I was under the impression that they have NO GC protections. But according to the “afraid of my shadow” left, they are? What gives?
A lawful combatant is one that fights under a flag, in uniform, has a chain of command and accountable structure over them. That is the GC, but also the way that the law of nations work. I have been working at this for awhile, and post a bit much on it, but it is a vital view that needs to be understood in our modern times. It is strange to think that those wishing to fight as ‘terrorists’ are actually described under basic documents referenced by the US Code for piracy. That said the strictures on the piracy code do not cover the rest of the type of warfare described under the law of nations that these ‘terrorists’ are waging. This comes not only from one of the prime sources of the law of nations, Monsieur De Vattel, but also from the common law description of England before the US separated, by Blacksone’s Commentaries on the Law. Both of those are built on the Black Book of the Admiralty which serves as the foundation of trade law via the seas, but also on land for some offences.
The destinction of ‘lawful’ is highly meaningful, as the Head of State, under the law of nations, has an obligation to protect not only his Nation but to reciprocate protection to other Nations that see such ‘unlawful’ organizations and individuals. The proper umbrella term covering piracy, brigandage and other forms of unlawful warfare via those that are not working for Nations is: predatory warfare.
Via the Admiralty Powers of the President to have Admiralty Jurisdiction courts, comes the power to also declare who is and is not a pirate. This is not so strange as such organizations, by not being Nations, can only be addressed by Letters of Marque and Reprisal by Congress, which are potent tools to use, BTW. In combat situations however, the President has the authority to put forth the rules for summary judgement of such individuals caught acting outside of the lawful strictures of warfare. This existed in the US and has not been removed by any Treaty nor Amendment to the Constitution, and no law may address it as it is the Presidential power via being Head of State and Commander of the Armies and the Navies of the Union. How is this known? Because a previous President has addressed this in a previous version of the US Army Field Manual – 100:
That comes from: INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.
I have grave problems with this Nation not being able to recognize predators for what they are when they wage unaccountable warfare against mankind. That is the term used by Edward Coke in England, as head of the Admiralty Courts: hostis humani generis. Enemy of Mankind.
What Congress has not done, and it can very well do via the law of nations, is set up a piece of the US Code to follow 18 USC 1651 Piracy code that references the law of nations for definition. Either add in a second law or redact ‘,on the high seas,’ from the existing and shorten that single sentence up to something damned blunt.
That law, on the civil side reads:
Piracy is not robbery, BTW, but the illegitimate use of the weapons of war to stop trade or otherwise attack Nations. ‘Terrorism’ is a tactic… not a type of warfare.
But then these are just the things this Nation is also founded on… our inheretance of being a Nation amongst Nations under the law of nations.
Channeling Krazy Kagu: The Geneva Conventions are lipstick on a pig. We should repudiate them, adopt the Nuremberg Principles instead, and make waging war against the United States a capital offense.
I think that the reason they adopted conventions for lawful combatants was that most soldiers were conscripts who were operating under orders they were not free to disobey, so they can’t be afforded the same kind of “blame” as a terrorist, who is compelled by nothing save his ideology and bloodlust.
There is no legal reason, AFAIK, to NOT declare terrorists unlawful combatants. We’re hesitant because Leftist organizations are pitching full-body, hyper-epileptic fits over our not “living up to our standards.”
And we’re not. We signed the GCs, in which we agreed to execute unlawfuls on sight.
Also, I’m not sure why our domestic courts could possibly have jurisdiction over people apprehended off US soil who are not being accused of crimes according to our laws. Will someone please explain to me how being nicer than nice to the terrorists helps achieve our goal of getting rid of them?
This is a whole lotta process for a regime that has thrown away the law.
Right, Gleen Fitzgleenerson?
BECAUSE OF THE APPEALS PROCESS!!!
Dubya’s seven years in and he just can’t seem to get the hang of the dictator thing.
ajacksonian, outstanding post.
dicentra:
As far as I can tell, terrorists are a subset of ‘unlawful combatants’. The reason we don’t call all unlawful combatants terrorists is that terrorists are usually defined as those who murder civilians for political gain. ‘Unlawful combatant’ is an awkward phrase to describe those who are not terrorists, at least so long as they are attacking our troops (1), but are not legitimate soldiers, either, and therefore not entitled to GC protections, because they do not wear uniforms (or “insignia recognizable at a distance” (2)), or do not carry their weapons openly, or do not have a fixed chain of command, or (I forget what the fourth condition is), or some combination of these.
(1) The same person may be both on different days. Lt. Calley was a lawful combatant most days, but a terrorist and a war criminal at My Lai. No doubt many Iraqi ‘insurgents’ shoot at American troops some days and cut the throats of civilians on others. Neither role is protected by the Geneva Conventions.
(2) As I’ve written before, the Crips and the Bloods have no trouble distinguishing themselves from each other and from the general population. If they were to declare war on the federal government, they might well qualify as lawful combatants.
As an aside: In “The Eagle Has Landed” the German commandoes sent to assasinate Churchill wore their German uniforms under the polish paratrooper uniforms, so that they could keep a claim of being lawful soldiers due protection under the conventions, and not spies or sabatoeurs who could be shot out of hand. When they actually started fighting, they fought in their own uniforms.
The crew of USS Barb blew up a Japanese coastal railway line, but again, they were in uniform. It is a legal distinction, and an important one.
Ajacksonian, Thank you for that post. It must have been a hell of an effort to find all that info!.
I’m kinda of the idea that if you’re not learning something new at least once a day then you’re not trying hard enough, and you just supplied me (and others, I’m sure) with a weeks worth…
Battlefield justice. If this is the mess we get in for trying to do the right thing, we should just start double tapping them on the battlefield. We have spent countless $$$, fought ridiculous political battles, and for what?
Our bitter joke at Bagram AF was to complain to the “OCF” (Other Coalition Forces – ie. Rangers) that we keep having to expand the detention facility and the ammunition storage areas…could they please use more ammo and bring back less prisoners?
“And anyway, if this is the kind of Constitutional concern that needs to be addressed in order to keep war trials out of criminal courts, then by all means, dot the i’s and cross the t’s.”
Looks more statutory than constitutional.
“But I thought “enemy combatant†meant they such were not accorded status as part of a foreign army.”
This ought to explain it:
I was all set to comment on this (given my user name) but it’s been explained so well that I don’t really have anything to add. :-)
It is, fun, though, to ask Kos types if they REALLY believe that “no uniform = no POW status” is some new rule that Bush thought up. Asking them about the plastic turkey is a nice aperitif.
Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.
…may be detained for the duration of an armed conflict.
Anyone notice anything even remotely close to providing attorneys, charging them, giving them access to our criminal and civil court system, or how Geneve applies to them in those definitions? Anytime we discuss all of the tangential, and ultimately unrelated matters that the Dems like to cry about, we have ceded the basis of the problem, that these people simply are not afforded any of the nicities that the Dems would bestow upon them.
“Anyone notice anything even remotely close to providing attorneys, charging them, giving them access to our criminal and civil court system, or how Geneve applies to them in those definitions?”
Some of that might have been understood when you’re talking about a memo that cites a supreme court case. So somebody did lawyer up all the way to the supreme court.
And failed.
Which should have answered JD’s rhetorical question.