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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: 73338
Comments: 107
In the United States of America you are considered ___________________ until proven guilty.
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#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.
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.
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]
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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.
#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.
#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.
Replies to Comment # 78.
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