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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: 73378
Comments: 107
In the United States of America you are considered ___________________ until proven guilty.
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Begin Trace Mode for Comment # 87.
#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.
Enemy combatant is a recently invented word to try and take rights away from people. The founding fathers would be considered enemy combatants. You really hate the constitution don't you! It wasn't a question.
Why do you spout this bullshit? 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.
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.
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.
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".
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:
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.
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.
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.
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.
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.
#88. To: Godwinson, A K A Stone (#87)
[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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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)
#6. To: war (#5)
#8. To: A K A Stone (#6)
Enemy combatant is a recently invented word to try and take rights away from people.
#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.
#63. To: war (#60)
That was the definition that was used from 2004 until Obama - supposedly - abandoned it.
#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.
#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."
#75. To: nolu chan (#71)
You have currently cited the detainees being "enemy combatants,"
#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."
#82. To: nolu chan (#79)
The term "enemy combatant" is dead with regards to Al Qaeda and Taliban detainees.
#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.
#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.
Replies to Comment # 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.
End Trace Mode for Comment # 87.
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