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Title: The fill in the blank quiz that stumped war!
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Published: Oct 14, 2011
Author: A K A Stone
Post Date: 2011-10-14 08:58:37 by A K A Stone
Keywords: None
Views: 70057
Comments: 107
In the United States of America you are considered ___________________ until proven guilty.
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#49. To: A K A Stone (#36)
BUMP
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I asked for something predating 911. Back in the nineties. This is just from yesterday making claims. Go try again.
Are you blind? Go get your reading glasses Stoned.
You might consider changing the title to: The fill in the blank quiz that backfired! (chuckle)
Following is an excerpt from the indictment returned yesterday
Can you fill in the blank? War hasn't been able to yet.
Are you blind?
It was "filled in" in #5.
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Dated from 1998, doof...
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Neither Aulaqi nor any Al Qaeda fighter is classified as an enemy combatant. Even the Israeli Supreme Court has ruled that the Palestinian Freedom Fighters are civilians and not enemy combatants. PCATI v. Israel, HCJ 769/02 (2006) "as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law...." The U.S. Supreme Court held that Al Qaeda and Taliban fighters were entitled to the protection of Geneva Convention Common Article 3 and that it is not a conflict of an international character. It further found, "Even assuming that Hamden [sic - Hamdan] is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment." In 2006, the Bush administration "agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's recent rejection of policies that have imprisoned hundreds for years without trials." All enemy combatants, upon capture, are entitled to POW status. The Al Qaeda fighters are not classified as enemy combatants. Even the Israeli Supreme Court has ruled that the Palestinian Freedom Fighters are civilians and not enemy combatants. PCATI v. Israel, HCJ 769/02 (2006) "as we have seen, the terrorists acting against Israel are not combatants according to the definition of that term in international law...." The U.S. Supreme Court held that Al Qaeda fighters were entitled to the protection of Geneva Convention Common Article 3 and that it is not a conflict of an international character. It further found, "Even assuming that Hamden [sic - Hamdan] is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment." In 2006, the Bush administration "agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's recent rejection of policies that have imprisoned hundreds for years without trials." All enemy combatants, upon capture, are entitled to POW status. The Al Qaeda fighters are not classified as enemy combatants. The Israeli Supreme Court found that the Palestinian fighters were not combatants. The U.S. Supreme Court found that Al Qaeda fighters are not combatants. Both courts found that the Geneva Conventions apply. In Hamdan v. Rumsfeld, the U.S. Supreme Court held that in armed conflict involving alleged members of Al Qaeda, the Geneva Convention Common Article 3 applies, it must be complied with, and its protections must be observed. Oh snap! (Bench Opinion) NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 05-184. Argued March 28, 2006 - Decided June 29, 2006 At 1-2: At 4: At 6: At 6: (iii) While Common Article 3 does not define its "regularly constituted court" phrase, other sources define the words to mean an "ordinary military cour[t]" that is "established and organized in accordance with the laws and procedures already in force in a country." The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be "regularly constituted" only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69.70. (iv) Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72. (d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72. - - - - Hamdan v Rumsfeld, 548 US 557 (2006) - Armed Conflict With Al Qaeda and Common Articles 2 and 3
First off, "enemy combatant" is TWO words. Secondly,. read the decision rendered in Ex Parte Qurin from 1942. The term "ENEMY COMBATANT" has been around for decades. Thirdly, as a result of court decisions surrounding the detention of Al Qaeda prisoners at Gitmo, DumbDubv43 was actually forced to narrowly define what an "enemy combatant" was in the war against Al Qeada: "Enemy combatant" shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent act or has directly supported hostilities in aid of enemy combat forces. This bullshit was destroyed by the U.S. Supreme Court in Hamdan.
Guess again. That was the definition that was used from 2004 until Obama - supposedly - abandoned it. Hamden was decided in 2006 and nothing from Hamden changed one word in that definition.
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You're citing a case that decided the powers of the Commander in Chief when an enemy combatant is CAPTURED and IN CUSTODY. That case says diddly squat about how he may prosecute the actual war.
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I cited a case that decided Common Article 3 was applicable. What was his status at the time of capture? If you can't figure out what the status of someone entitled to Common Article 3 protection is, ask one of your imaginary friends to help.
Read the opinion. "On November 13, 2001, while the United States was still engaged in active combat with the Taliban, the President issued a comprehansive military order intended to govern the 'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,' 66 Fed. Reg. 57833 (hereinafter November 13 Order or Order." That's the Order that was at issue before the Court. The legal action was commenced in 2004. The Supreme Court was acting as an Appellate court. Get a clue.
It did not decide any powers of the Commander-in-Chief. It determined what protections inhered to the detainee. It determined the actions of the United States government violated those protections. The President (or C-in-C) has no authority to commit unlawful acts.
"Unlawful combatant" is the recent make-believe classification
You mean the word that no on ever heard of until after 911. Aulaqi was not alleged to me a member of AQ, but of AQAP (al Qaeda in the Arabian Peninsula). "AQAP appears to be merely the latest iteration of al Qaeda's long-standing operational presence in Yemen, contrasting sharply with the lack of historical ties to al Qaeda when it comes to some other current al Qaeda franchises such as AQIM. On the other hand, AQAP appears to operate without direct lines of control running to bin Laden or other senior al Qaeda leaders." Yearbook of International Humanitarian Law 2010, (2011), p. 8. It may be easier to show an armed conflict between AQAP and the U.S. than to show that AQAP is a part of AQ. AQAP did not exist in 2001.
I have one. You're using your typical sleight of hand to meld two concurrent yet separate events as being the same event. As you stated, Hamden decided that the "comprehensive military order" that DumbDubv43 had issued was extra legal and NOT the definition of "enemy combatant".
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Frankly, having read through the materials you posted and your commentary about them, I have little, if any, disagreement with you about custodial process, i.e., how the US MUST proceed once a person is in custody.
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Don't worry; this is all about his love for Obama's manhood. If this were Bush, he would be arguing adamantly in your behalf.
Obama has played at being a president while enjoying the perks … golf, insanely expensive vacations at tax-payer expense. He has ignored the responsibilities of the job; no plans, no budgets, no alternatives … just finger pointing; making him a complete failure as a president
You have currently cited the detainees being "enemy combatants," despite the fact that such has always been legally indefensible. I provide your Paul Wolfowicz "authority" for yucks. You have stated, "That was the definition that was used from 2004 until Obama - supposedly - abandoned it." That was the terminology used until the Court ordered the administration to provide its definition of the term. It then rapidly withdrew it. You have been incessantly referring to the detainees, and Aulaqi, as "enemy combatants." As you apparently don't know, this was officially dropped. The DOJ press release had the headline, You have been making the current claim that the President's acts are based on his inherent authority as Commander-in-Chief. Gee, will you look at this: You seem to think the government can detain or kill anyone as long as some bureaucrat says it is alright. The definition received a major tweak. And before I forget, here is your "enemy combatant" classification. While you have complete faith in that the government must have documented cause to assassinate Aulaqi, you only "suppose" that "enemy combatant" was really abandoned. Why you have such complete faith in the secret government process to determine combatant status is not clear considering their evidence difficulties in habeas corpus litigation. Here is the unlawful orders issued by Paul Wolfowicz. Order Establishing Combatant Status Review Tribunal of 7 Jul 2004 Issued by Paul Wolfowicz And here is the Press Release from the Justice Department:
Then you realize that the terms "substantially supported" and "part of" are interpreted to encompass only individuals who were members of the enemy organization's armed forces, as that term is intended under the laws of war, at the time of their capture. I should hope that the standard to detain and keep someone detained is at least as high as the standard to just exterminate them.
In the USA, the police can shoot to kill if it will save a life. al-Qaeda is not covered under the rules of war but Americans who have been pirates or served foreign armies have been killed without raising constitutional issues.
"This is what economic policy in the West has become--a tool of the wealthy used to enrich themselves by spreading poverty among the rest of the population." Paul Craig Roberts
When the standard for the prosecution of a war requires only that the military must take care to minimize civilian casualties rather than a full estoppel of any military action if there is a chance for civilian casualties then that "hope" is fleeting. I will never believe that Al-Awlki was a "civilian" in any way.
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I haven't cited any detainee as a military combatant. I simply posted the definition of one. Hamden put the process of determining the legal status of a detainee under scrutiny. It had no comment about the battlefield determination of one.
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That was why I used the word "allegedly" when stating that Obama had [allegedly] abandoned it. Frankly, I don't believe that he has. The increase in drone activity alone renders any statement of "abandonment" bullshit...imho.
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FALSE. Irregular forces are explicitly covered by Common Article 3 and Conflicts NOT of an International Character. Common Article 2 applies only to wars or armed conflicts between two or more high contracting parties, which defines an armed conflict of an international character for Geneva Conventions and the laws of war purposes. Only in such conflict of an international character, literally involving two or more nations, can any of the fighters be classified as "enemy combatants." "Enemy combatant" in this context is a legal term of art with a specific definition within the conventions and protocols. Common Article 3 and Additional Protocol 2 apply to armed conflict of a NON-international character. That includes conflict between one nation and one or more groups of armed irregulars. In NON-international armed conflict, nobody is classified as an "enemy combatant," despite the best efforts of some to use the term in a generic manner within a context that only allows of its specific meaning as a legal term of art. Art 1, §8, "The Congress shall have power to... To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." There is no death penalty for piracy under U.S. law. I believe a death sentence or execution not provided for by law would, indeed, raise constitutional questions. § 1651. Piracy under law of nations § 1652. Citizens as pirates § 1653. Aliens as pirates Your point has nothing to do with the USA extra-judicial homicide committed against an American citizen in Yemen. Gherebi v Obama, DCDC 04-1164, (2009), Memorandum OPINION Footnote 8 on pages 25-26, At 26, At 44-45, At the same time, the armed forces of the enemy consist of more than those individuals who would qualify as “combatants” in an international armed conflict. See ICRC Third Geneva Convention Commentary, supra, at 51. [...] The key question is whether an individual “receive[s] and execute[s] orders” from the enemy force’s combat apparatus, not whether he is an al-Qaeda fighter. Thus, an al-Qaeda member tasked with housing, feeding, or transporting al-Qaeda fighters could be detained as part of the enemy armed forces notwithstanding his lack of involvement in the actual fighting itself, but an al-Qaeda doctor or cleric, or the father of an al-Qaeda fighter who shelters his son out of familial loyalty, could not be detained assuming such individuals had no independent role in al-Qaeda’s chain of command.
When the standard for the prosecution of a war requires only that the military must take care to minimize civilian casualties rather than a full estoppel of any military action if there is a chance for civilian casualties then that "hope" is fleeting. I will never believe that Al-Awlki was a "civilian" in any way. If, as you insist, fighters of Al Qaeda are classified under the laws of war and international law as "enemy combatants," then Aulaqi could only have been classified as a civilian pursuant to the law applied to Armed Conflict of an International Character. Status as a "combatant" obviously cannot exist in an armed conflict of a NON-international character. Under those rules, applied to irregular forces not of a high contracting party, Al Qaeda fighters cannot be classified as "enemy combatants." They need not be treated as privileged civilians either. But if you choose to insist on using the term "enemy combatant," applicable only to armed conflict of an international character, then Aulaqi does not meet the definition of "enemy combatant" and, in international conflict, all who are not "enemy combatants" are civilians. As a necessary predicate to your holding that the armed forces of Al Qaeda enjoy status as enemy combatants, you apparently believe that Al Qaeda is a recognized State government. Re estoppel. Black's Law Dictionary, 6th Ed. Estoppel is a bar or impediment which precludes allegation or denial of a certain fact or state of facts, in consequence of previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law. It operates to put party entitled to its benefits in same position as if thing represented were true. May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448, 458. Under law of "estoppel" where one of two innocent persons must suffer, he whose act occasioned loss must bear it. Sackenreuther v. Winston, Tex.Civ.App., 137 S.W.2d 93, 96. Elements or essentials of estoppel include change of position of parties so that party against whom estoppel is invoked has received a profit or benefit or party invoking estoppel has changed his position to his detriment. Law Dictionary, 2nd Ed., Steven H. Gifis [emphasis as in original]
Hamden put the process of determining the legal status of a detainee under scrutiny. It had no comment about the battlefield determination of one. You repeatedly used the legal term of art, "enemy combatant." Your change of what you actually and repeatedly said, while slick as ever, does not change what you repeatedly asserted, however wrong that may have been. It does not even cure your bullshit predicament as the problem with the term "combatant" is not changed or cured. The term "enemy combatant" is dead with regards to Al Qaeda and Taliban detainees. Hamdan, USSC 05-184, Opinion at 6: The Bush nonsense that it was an armed conflict of an international character was squashed. The goofy notion, still pimped by some, that no laws of war or international apply to the conflict or the detainees was also squashed. Hamdan, USSC 05-184, Opinion at 69-70, 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, see Part VI.C, supra, no such need has been demonstrated here. []65] ____________________ [64] The commentary.s assumption that the terms "properly constituted" and "regularly constituted" are interchangeable is beyond reproach; the French version of Article 66, which is equally authoritative, uses the term "régulièrement constitués" in place of "properly constituted." [65] Further evidence of this tribunal's irregular constitution is the fact that its rules and procedures are subject to change midtrial, at the whim of the Executive. See Commission Order No. 1, §11 (providing that the Secretary of Defense may change the governing rules "from time to time"). As Common Article 3 is applicable, the laws of war and international humanitarian law are also applicable, and the conflict is undeniably held to be an Armed Conflict NOT of an International Character. Al Qaeda fighters cannot be classified as enemy combatants Gherebi v Obama, 04-1164, Opinion at 38-39, By definition, combatants are regular armed forces of a state. While engaged in military combat, they commit no crime while killing the enemy. Terrorists are not members of the regular armed forces of a state. Their acts of killing do not enjoy the protection afforded to combatants. The Bush administration created a legal shit sandwich and gave it to the Obama administration. The Bush administration avoided legal disaster by filing a Notice to the Court stating that, However, the inability of the U.S. Government to meet a reasonable standard of proof to hold detainees has been well documented in other cases. As their evidence cannot meet the minimum standard for detention, it remains to be seen how anyone justifies the use of such crap to justify extra-judicial execution, i.e. homicide, of an American citizen. Parhat v. Gates, DC Cir 06-1397, Opinion at 28, Parhat v. Gates, DC Cir 06-1397, Opinion at 28-29, Bostan v. Obama, DC Cir 05-883, Opinion of 8/19/2009 at 1112, For all of these reasons, the Court concludes that neither Hamdi nor Boumediene, nor the existing will of Congress compels the Court to adopt a blanket presumption that the hearsay proffered by the government in each of its cases before this member of the Court is admissible. Nor is the Court willing to look at all of the government’s hearsay in “context” before determining the admissibility of individual pieces of evidence. The individual items of hearsay proffered by the government will be assessed to determine whether they have sufficient indicia of reliability to justify their admission. If they do, they will be admitted into evidence; if they do not, they will be excluded. This is not to say that hearsay proffered by the government must have intrinsic indicia of reliability to be admitted into evidence, as corroborating evidence can be used to establish reliability if that corroborating evidence is itself reliable. The Court’s only point is that otherwise unreliable hearsay cannot be deemed reliable because there is other unreliable hearsay to the same effect. The approach taken by this member of the Court comports with the standard set forth by Judge Hogan in his case management order (subject to the clarifications of that standard set forth above). Consequently, both with respect to these particular habeas corpus petitions and for all of the active habeas corpus petitions pending before this member of the Court, the government must establish that any proffered hearsay evidence is admissible either (1) under the Federal Rules of Evidence, as modified by 28 U.S.C. § 2246, or (2) by demonstrating that (a) the proffered hearsay is reliable and (b) that the provision of non-hearsay evidence would unduly burden the government (as that term is construed in this opinion) or interfere with the government’s ability to protect national security. SO ORDERED this 19th day of August, 2009. Bostan v. Obama, DC Cir 05-883, Opinion of 10/23/2009 at 40-42, For now, at least, the Court expects that the government, having been placed on notice of the rulings delineated above and in the Court's earlier rulings, appreciates what it needs to do to supplement its evidentiary submissions and will do so (if it can) in an expedited manner. The Court will therefore direct the government to supplement its evidentiary submissions within thirty days of the entry of the order accompanying this memorandum opinion, with any response from the petitioner to follow within fourteen days thereafter. In light of these new deadlines, the Court will reschedule the status hearing currently scheduled for October 27, 2009, at 9:00 a.m. to another date and time to be determined in consultation with counsel for the parties. Finally, while the Court has regularly granted requests for extensions of time by the government in response to its preliminary evidentiary rulings because the requested extensions have to this point been of a reasonable duration and the rulings made by this member of the Court differ in some respects from other members of the Court, the window of time in which the government could credibly claim to be surprised by the outcome of these evidentiary disputes has now closed. The Court therefore expects that the government will abide by its rulings from this point forward with respect to all of the active habeas petitions from Guantanamo Bay pending before this member of the Court, and will look with disfavor upon any requests by the government for extensions of time with respect to those habeas petitions that have not yet reached the evidentiary phase of the proceedings. The path to resolving these cases chosen by this member of the Court has been a comparatively slower one, but the Court intends now to proceed with all deliberate speed with respect to resolving all of the cases pending before it from this point forward.
That was why I used the word "allegedly" when stating that Obama had [allegedly] abandoned it. Frankly, I don't believe that he has. The increase in drone activity alone renders any statement of "abandonment" bullshit...imho. Frankly, I believe the Obama administration made a public announcement of the fact that it abandoned the impossible term "enemy combatant." I provided it and do not care what you believe. It is legally impossible to support the "enemy combatant" crap. Extra-judicial homicide does not provide support for your contention. Gherebi v. Obama, DCDC 04-1164, Opinion at 36-38, Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of “civilians.” See Additional Protocol I, art. 50.1 (defining the term “civilian” to mean “any person who does not belong to one of the categories of persons referred to in Article 4(A) (1), (2), (3), and (6) of the Third Convention and in Article 43 of [Additional Protocol I]”). And as civilians, the petitioners would not be subject to military force “unless and for such time as they [took] a direct part in hostilities.” Id., art. 51.1, 51.3. In its most restrictive interpretation, this standard would require “a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity [took] place.” ICRC Additional Protocols Commentary, supra, at 516. But the government no longer seeks to detain the petitioners on the theory that they are “enemy combatants,” and neither Common Article 3, Additional Protocol II, nor the respective commentaries on these treaties by the International Committee of the Red Cross make any reference whatsoever to the term “combatant.” “The reason for the absence of combatant status in non-international armed conflicts is obvious: states are not prepared to grant their own citizens, and even less others who might engage in fighting on behalf of a non-state group, the right to do so.” But then, there are those, such as war, who apparently do want to grant to Al Qaeda members engaged in fighting on behalf of that non-state group, the right to do so, and to grant to them the status of "enemy combatant."
Irregular forces is not applied to aQ.
"This is what economic policy in the West has become--a tool of the wealthy used to enrich themselves by spreading poverty among the rest of the population." Paul Craig Roberts
Good for them, sugar pants. Al-Awlki was not in custody. Tap your ruby slippers together as many times as necessary until you get that.
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Good point.
A point that I have made from the onset, btw. Nolo knows he lost on this point 2-3 posts in.
I'll believe that a corporation is a person 1 second after Texas executes one...
The fact that Aulaqi was not in custody is irrelevant to determining his status as an alleged "enemy combatant." Combatant status determination is not based on any time after capture. After capture they are detainees or prisoners. Combatant status is based on their status while on the field of combat as a member of the armed forces of a high contracting party. The Law of Armed Conflict, Gard D. Solis, U.S. Military Academy, Cambridge University Press, 2010, page 212: "Next, answer the second question relevant to any armed conflict: What is the individual status of Taliban fighters after the new Afghan government was established and common Article 3 became applicable? Recall that there are no combatants, lawful or otherwise, in a common Article 3 conflict. … In a common Article 3 non-international armed conflict, Taliban fighters are terrorists, in violation of domestic law." Id. at 216: "What of al Qaeda fighters in Iraq and elsewhere? What is their individual status? Was it, is it, different than that of the Taliban? No, it is not. … Terrorist armed opposition groups like al Qaeda and the Taliban are modern-day armed opposition groups without a state." Opposition forces without a state do not have any regular armed forces. Gherebi v Obama, DCDC 04-1164, (2009), Memorandum OPINION, Footnote 8 on page 25, As for the purported evidence the government supplied to the Courts when they had to defend their previous assertions of detainees being the worst of the worst, the government's inadmissible unreliable claptrap met with judicial reality. Bostan v. Obama, DC Cir 05-883, Opinion of 8/19/2009 at 5-6, Third, it bears repeating that the government must “establish[]” that the use of non-hearsay evidence would constitute an undue burden for the proffered hearsay to be admissible—mere allegations or representations to that effect will not suffice. Consequently, representations by the government’s counsel or conclusory assertions from government officials that the use of a non-hearsay alternative to proffered hearsay evidence would be unduly burdensome will not satisfy the undue burden standard. Instead, the government will need to demonstrate why the use of non-hearsay alternatives would be unduly burdensome to the government, and it must do so through the use of statements made under oath by persons with personal knowledge of the matter about which their representations relate. Fourth, and most important, the undue burden standard set forth in Judge Hogan’s case management order does not mean, as the government seems to believe, that hearsay proffered by the government must be admitted into evidence because that is all the evidence that the government has available to it. See Gov’t’s Mem. at 6 (“There can be no doubt that refusing to consider hearsay would impose an undue burden and harm national security. Indeed, a contrary ruling would mean this habeas case cannot properly proceed[] because nearly all of the evidence is necessarily hearsay.”). Contrary to the government’s fulminations, this case, and all of the other active habeas corpus petitions pending before this member of the Court, will “properly proceed” whether the government’s evidence is found to be admissible or not. Of course, the result of this process might not be to the government’s liking, but that is no reason to totally abandon well-established, otherwise-applicable rules of evidence. The very notion that the Court should lower its standards of admissibility to whatever level the government is prepared (or even able) to satisfy is contradictory to the fundamental principles of fairness that inform the Great Writ’s existence. See Boumediene, ___ U.S. at ___, 128 S. Ct. at 2247 (explaining that the purpose of the Constitution’s Suspension Clause “ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ [of habeas corpus], to maintain the delicate balance of governance.
yukonesque chants of victory are always amusing. In the Mad Dog realm of things, you are Gidget.
That is like saying the Mafia or pirates or the Bloods and Crips are field combatants because they have a uniform and a code and a structural command and thus covered under Geneva. All people have rights that are covered under the Article VII of the Helsinki Accords but I can't see Geneva applying to aQ.
"This is what economic policy in the West has become--a tool of the wealthy used to enrich themselves by spreading poverty among the rest of the population." Paul Craig Roberts
[87] All people have rights that are covered under the Article VII of the Helsinki Accords but I can't see Geneva applying to aQ. The Conduct of Hostilities under the Law of International Armed Conflict, by Yoram Dinstein, war's favorite Israeli legal authority, Second Edition, Cambridge University Press, 2010, reprinted 2011, page 56, In re Guantanamo Bay Detainee Litigation, USDC DCDC 08-442 (13 mar 2009) Doc 1689, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, by the Department of Justice, at page 4, In re Guantanamo Bay Detainee Litigation, USDC DCDC 08-442 (13 mar 2009) Doc 1690, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, by Department of Justice, at page 4, Antonio Cassese, Expert Opinion on Targeted Killing (in PCATI v Israel, HCJ) Hamdan, U.S. Supreme Court 05-184, Opinion at 6: The Bush nonsense that it was an armed conflict of an international character was squashed. The goofy notion, still pimped by some, that no laws of war or international apply to the conflict or the detainees was also squashed. Hamdan, U.S. Supreme Court 05-184, Opinion at 69-70, 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, see Part VI.C, supra, no such need has been demonstrated here. []65] ____________________ [64] The commentary's assumption that the terms "properly constituted" and "regularly constituted" are interchangeable is beyond reproach; the French version of Article 66, which is equally authoritative, uses the term "régulièrement constitués" in place of "properly constituted." [65] Further evidence of this tribunal's irregular constitution is the fact that its rules and procedures are subject to change midtrial, at the whim of the Executive. See Commission Order No. 1, §11 (providing that the Secretary of Defense may change the governing rules "from time to time").
That is like saying the Mafia or pirates or the Bloods and Crips are field combatants because they have a uniform and a code and a structural command and thus covered under Geneva. Where did you ever see Mafia or pirates or Bloods and Crips on the field of battle as members of the uniformed services of a High Contracting Party?
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#50. To: war (#38)
Following is an excerpt from the indictment returned yesterday in a Federal District Court
#51. To: A K A Stone (#50)
#52. To: A K A Stone (#50)
#53. To: Fred Mertz (#51)
#54. To: Fred Mertz (#52)
#55. To: A K A Stone (#53)
On Oct. 3 and 4, 1993, in Mogadishu, Somalia, persons who had been trained by Al Qaeda (and by trainers trained by Al Qaeda) participated in an attack on United States military personnel serving in Somalia as part of Operation Restore Hope, which resulted in the killing of 18 United States Army personnel. . . .
#56. To: A K A Stone (#54)
#57. To: A K A Stone (#53)
Following is an excerpt from the indictment returned yesterday
#58. To: war, A K A Stone (#5)
The issue is what powers the Commander in Chief has in ordering the killing of a specific enemy combatant.
OCTOBER TERM, 2005
The District Court granted habeas relief and stayed the commission's proceedings, concluding that the President's authority to establish military commissions extends only to offenders or offenses triable by such a commission under the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention's full protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed.
4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72.
(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan's challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62–68.
(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum," certain provisions protecting "[p]ersons . . . placed hors de combat by . . . detention," including a prohibition on "the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character." That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65.68.
#59. To: war, A K A Stone (#8)
Why do you spout this bullshit?
#60. To: nolu chan (#59)
This bullshit was destroyed by the U.S. Supreme Court in Hamdan.
#61. To: nolu chan (#58)
#62. To: war, A K A Stone (#61)
You're citing a case that decided the powers of the Commander in Chief when an enemy combatant is CAPTURED and IN CUSTODY.
#63. To: war (#60)
That was the definition that was used from 2004 until Obama - supposedly - abandoned it.
#64. To: war, A K A Stone (#61)
You're citing a case that decided the powers of the Commander in Chief when an enemy combatant is CAPTURED and IN CUSTODY.
#65. To: A K A Stone, war (#6)
Enemy combatant is a recently invented word to try and take rights away from people.
#66. To: A K A Stone, war (#29)
Al Qaeda...
#67. To: nolu chan (#63)
That's the Order that was at issue before the Court. The legal action was commenced in 2004. The Supreme Court was acting as an Appellate court. Get a clue.
#68. To: nolu chan (#62)
I cited a case that decided Common Article 3 was applicable. What was his status at the time of capture? If you can't figure out what the status of someone entitled to Common Article 3 protection is, ask one of your imaginary friends to help.
#69. To: nolu chan (#62)
(Edited)
#70. To: A K A Stone (#0)
#71. To: war, A K A Stone (#67)
As you stated, Hamden decided that the "comprehensive military order" that DumbDubv43 had issued was extra legal and NOT the definition of "enemy combatant".
DEPARTMENT OF JUSTICE WITHDRAWS “ENEMY COMBATANT” DEFINITIONFOR GUANTANAMO DETAINEES
The definition does not rely on the President's authority as Commander-in-Chief independent of Congress's specific authorization.
It provides that individuals who supported al Qaeda or the Taliban are detainable only if the support was substantial.
And it does not employ the phrase "enemy combatant."
#72. To: war (#68)
Frankly, having read through the materials you posted and your commentary about them, I have little, if any, disagreement with you about custodial process, i.e., how the US MUST proceed once a person is in custody.
#73. To: nolu chan, war, A K A Stone (#72)
Then you realize that the terms "substantially supported" and "part of" are interpreted to encompass only individuals who were members of the enemy organization's armed forces, as that term is intended under the laws of war, at the time of their capture.
#74. To: nolu chan (#72)
I should hope that the standard to detain and keep someone detained is at least as high as the standard to just exterminate them.
#75. To: nolu chan (#71)
You have currently cited the detainees being "enemy combatants,"
#76. To: nolu chan (#71)
While you have complete faith in that the government must have documented cause to assassinate Aulaqi, you only "suppose" that "enemy combatant" was really abandoned.
#77. To: Godwinson (#73)
In the USA, the police can shoot to kill if it will save a life. al-Qaeda is not covered under the rules of war but Americans who have been pirates or served foreign armies have been killed without raising constitutional issues.
[8] In Hamdan, the Supreme Court held that the conflict between the United States and al-Qaeda is at least a non-international armed conflict subject to Common Article 3, but did not reverse the determination made by the District of Columbia Circuit that the conflict was not an international conflict subject to Common Article 2. See Hamdan, 548 U.S. at 628-29 (declining “to decide the merits” of the government’s argument that the conflict between the United States and al-Qaeda is not an international armed conflict “because there [was] at least one provision of the Geneva Conventions that applie[d]” to the conflict). The Court is therefore constrained by the precedent of the Supreme Court and the District of Columbia Circuit to treat the conflict between the United States and al-Qaeda as a non-international armed conflict for purposes of the Geneva Conventions.
The distinction drawn between “international” and “non-international” conflicts has its roots in the Geneva Conventions, four treaties that comprise a part of “the rules and precepts of the law of nations.” Hamdan, 548 U.S. at 613. Two articles are identical in the Third and Fourth Conventions, and thus are known as “common articles”: Common Article 2, which specifies that the Conventions apply to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties,” Geneva Convention Relative to the Treatment of Prisoners of War art. 2, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (the “Third Geneva Convention”), and Common Article 3, which governs “armed conflict[s] not of an international character,” id., art. 3.9
Thus, under Additional Protocol I, only “persons who receive and execute orders” from the enemy’s “command structure” can be considered members of the enemy’s armed forces. Sympathizers, propagandists, and financiers who have no involvement with this “command structure,” while perhaps members of the enemy organization in an abstract sense, cannot be considered part of the enemy’s “armed forces” and therefore cannot be detained militarily unless they take a direct part in the hostilities.
#78. To: war (#74)
I should hope that the standard to detain and keep someone detained is at least as high as the standard to just exterminate them.
Estoppel. "Estoppel" means that party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly. Graham v. Asbury, 112 Ariz. 184, 540 P.2d 656, 658. A principle that provides that an individual is barred from denying or alleging a certain fact or state facts because of that individual's previous conduct, allegation, or denial. A doctrine which holds that an inconsistent position, attitude or course of conduct may not be adopted to loss or injury of another. Brand v. Farmers Mut. Protective Ass'n of Texas, Tex.Civ.App., 95 S.W.2d 994, 997. See Restatement, Agency, Second, § 8B .
ESTOPPEL a bar; preclusion , also known a issue precluion "a bar which precludes a person from denying the truth of a fact which has, in contemplation of law, become settled by the facts and proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing, or by representations, express or implied. An estoppel arises where man has done some act which the policy of the law will not permit him to gainsay or deny ." 51 S.E. 514, 521. It is an equitable doctrine, and as such, is used when good conscience requires it. Thus, some injury to a party invoking the doctrine of estoppel is generally required and the elements of the claim, then, consist of ignorance on the part of the person invoking estoppel, representation by party estopped which misleads, and an innocent and detrimental change of position in reliance on the representation. See 159 A. 2d 345, 351. Estoppel is distinguished from waiver in that a waiver generally refers to a voluntary surrender or relinquishment of some known right, benefit, or advantage; estoppel creates an inhibition or inability to assert it. 106 F. 2d 687, 691. Compare res judicata.
#79. To: war, A K A Stone (#75)
I haven't cited any detainee as a military combatant. I simply posted the definition of one.
On November 8, 2004, however, the District Court granted Hamdan.s petition for habeas corpus and stayed the commission.s proceedings. It concluded that the President.s authority to establish military commissions extends only to .offenders or offenses triable by military [commission] under the law of war,. 344 F. Supp. 2d, at 158; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158.172.
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). 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").
But the government no longer seeks to detain the petitioners on the theory that they are “enemy combatants,” and neither Common Article 3, Additional Protocol II, nor the respective commentaries on these treaties by the International Committee of the Red Cross make any reference whatsoever to the term “combatant.” “The reason for the absence of combatant status in non-international armed conflicts is obvious: states are not prepared to grant their own citizens, and even less others who might engage in fighting on behalf of a non-state group, the right to do so.”
On or about November 25, 2008, the Department of Defense transferred Hamdan to the Government of Yemen to serve the remainder of his sentence. On or about January 9, 2009, the Government of Yemen announced the release of Hamdan from its custody, Hamdan having served the remainder of his sentence imposed by military commission.
First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.
Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
Ultimately, the government seems to suggest that because so much of its hearsay evidence is (in its view) internally consistent, the contents of all of its proffered hearsay evidence must be true, rather in the same way that a rumor must be true if enough people repeat it. But even the most widespread rumors are often inaccurate in part if not in whole. How, then, is the Court to know which parts are correct and which are not? It does not and will never know, which is why it cannot assess the reliability of hearsay on the basis of other unreliable hearsay that purportedly corroborates it. See Parhat, 532 F.3d at 848 (“Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true.” (quoting Lewis Carroll, The Hunting of the Snark 3 (1876)).
Instead, what the Court has consistently done in these cases is require the government to support its arguments for admissibility with the best evidence available and in a manner that guarantees some modicum of trustworthiness in the proffered evidence. That this requirement has proven so difficult for the government to accept is troubling in and of itself, for the basic guidelines set forth by the Court-that the government should use otherwise inadmissible hearsay only when it truly needs to do so and the hearsay is reliable-would not be considered onerous or controversial in virtually any other type of proceeding. But these strictures concern the manner in which the government's proffered evidence has been presented to the Court, not the evidence itself, and it may well be the case that much if not all of the hearsay proffered by the goverrunent will be admitted into the record once the government has (to the extent possible) shored up its evidentiary submissions in the manner required by the Court."
#80. To: war, A K A Stone (#76)
While you have complete faith in that the government must have documented cause to assassinate Aulaqi, you only "suppose" that "enemy combatant" was really abandoned.
At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. While the term “armed forces” is defined broadly in the Third Geneva Convention, “the non-recognized government or authority” sponsoring the putative “armed forces” in question “must represent, or must claim to represent, a subject of international law recognized as such by the other Party to the conflict,” ICRC Additional Protocols Commentary, supra, at 508, and must be “indissolubly bound” by the rules that govern international warfare, id. at 513. “Anyone who participates directly in hostilities without being subordinate to an organized movement” that “enforc[es] compliance with these rules[] is a civilian.” Id. at 514.
#81. To: nolu chan (#77)
Irregular forces are explicitly covered by Common Article 3
#82. To: nolu chan (#79)
The term "enemy combatant" is dead with regards to Al Qaeda and Taliban detainees.
#83. To: war (#82)
Al-Awlki was not in custody.
#84. To: Thunderbird (#83)
#85. To: war, godwinson, A K A Stone (#82)
[godwinson #81] Irregular forces is not applied to aQ.
[war #82] Al-Awlki was not in custody.
[8] In Hamdan, the Supreme Court held that the conflict between the United States and al-Qaeda is at least a non-international armed conflict subject to Common Article 3 … The Court is therefore constrained by the precedent of the Supreme Court and the District of Columbia Circuit to treat the conflict between the United States and al-Qaeda as a non-international armed conflict for purposes of the Geneva Conventions.
Second, the undue burden prong of Judge Hogan’s standard relates to the burden imposed on the government, not on its counsel. While the Court is sympathetic to the considerable demands placed on the Department of Justice by the litigation in the numerous Guantánamo Bay detainee cases, the demands imposed upon the government’s attorneys by requiring close adherence to the traditional rules of evidence does not warrant the jettisoning of those rules. Thus, it is no excuse for the government’s lawyers to assert that there are too many habeas corpus petitions pending before the Court or too few resources allocated to the Department of Justice to compel fidelity to the centuries-old proscription against the use of hearsay where that hearsay does not meet any of the numerous exceptions to that prohibition already recognized in the Federal Rules of Evidence. Just as “the costs of delay can no longer be borne by those who are held in custody,” Boumediene, ___ U.S. at ___, 128 S. Ct. at 2275, so, too, the costs of this litigation, including the costs associated with providing sufficient manpower to properly litigate these cases, must be borne by the government, not fobbed off on the petitioners in the form of a blanket presumption of admissibility of otherwise inadmissible hearsay.
#86. To: war, A K A Stone (#84)
Nolo knows he lost on this point 2-3 posts in.
#87. To: nolu chan, war, A K A Stone (#85)
The fact that Aulaqi was not in custody is irrelevant to determining his status as an alleged "enemy combatant." Combatant status determination is not based on any time after capture. After capture they are detainees or prisoners. Combatant status is based on their status while on the field of combat as a member of the armed forces of a high contracting party.
#88. To: Godwinson, A K A Stone (#87)
[81] Irregular forces is not applied to aQ.
Al Qaeda forces constitute irregular forces.
Under international law, nations lawfully can use military force in an armed conflict against irregular terrorist groups such as al-Qaida.
Under international law, nations lawfully can use military force in an armed conflict against irregular terrorist groups such as al-Qaida.
Irregular fighters are those persons who take a direct part in hostilities but do not comply with one or more combatant requirements set forth in art. 4 of the Third Geneva Convention. They are generally referred to as 'guerrilla fighters', as they often mix with the civilian population and adopt hit-and-run tactics. Because of their failure to qualify as combatants, irregular fighters are liable to attack for the duration of their participation in combat. Most importantly, when they lay down arms they may be arrested and tried for the acts committed.
On November 8, 2004, however, the District Court granted Hamdan.s petition for habeas corpus and stayed the commission.s proceedings. It concluded that the President.s authority to establish military commissions extends only to .offenders or offenses triable by military [commission] under the law of war,. 344 F. Supp. 2d, at 158; that the law of war includes the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, T. I. A. S. No. 3364 (Third Geneva Convention); that Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based on evidence the accused would never see or hear. 344 F. Supp. 2d, at 158.172.
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). 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").
#89. To: Godwinson, A K A Stone (#87)
Combatant status is based on their status while on the field of combat as a member of the armed forces of a high contracting party.
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