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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: 70110
Comments: 107
In the United States of America you are considered ___________________ until proven guilty.
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Begin Trace Mode for Comment # 73.
#2. To: A K A Stone (#0)
Wah Wah...
No. War is to stupid or he can't spin the question. You still don't know the answer. Or you wont admit it because it will affect your ability to spin.
The issue isn't about answering your stupid question about the presumption of innocence that a person is afforded after they have been charged with a crime and the issue goes to adjudication - no one is arrested on a presumption of innocence. The issue is what powers the Commander in Chief has in ordering the killing of a specific enemy combatant.
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
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.
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.
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.
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.
#77. To: Godwinson (#73)
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.
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war didn't answer my specious,
spurious and stupid question...
wah wah wah
#3. To: war (#2)
war didn't answer my specious,
#5. To: A K A Stone (#3)
(Edited)
#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.
#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.
#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.
#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.
Replies to Comment # 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.
End Trace Mode for Comment # 73.
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