Lawfare remains a terrible Idea, but not too terrible for the Obama Administration

[rodney_g_graves]

One could hardly ask for a worse example of 9/10 thinking, nor a more understated headline:

Not Right
The Obama administration grants Miranda rights to detainees in Afghanistan.
by Stephen F. Hayes
06/10/2009 2:05:00 PM
The Weekly Standard

When 9/11 mastermind Khalid Sheikh Mohammad was captured on March 1, 2003, he was not cooperative. “I’ll talk to

Comments

Re: As a matter of fact, it was

[jetfx]

"Here endeth the lesson."

Hardly. For one thing, the "Customary Laws of Warfare" have been codified by the Geneva Conventions, which the US is party to, and Part 1, Article 5 of the 4th Geneva Convention states that all "persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be." None of the treaties contain the term "illegal combatants", as the 3rd Geneva Convention covers POWs and the 4th covers civilians, so no detainee is outside the law. On top of this, the United Nations Declaration of Human Rights, a document binding on all members of the UN, states in article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment," in article 9 that "No one shall be subjected to arbitrary arrest, detention or exile," and in article 10 "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal..." Articles 6, 7, 8 and 11 also deal with a detainee's basic legal rights.

Since the conflict involves NGA's on one side, the conflict is very likley to continue well into the forseeable future. This means that detainees can be held indefinitely without the ability to challenge their detention. As of June 12th, 2008, the US Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees (as they were directly under US detention) were entitled to the constitutional right of habeas corpus. On top of this, US law strictly forbids torture in all cases, even when the the perpetrator and victim are not US nationals, and the perpetrator may be prosecuted if they ever set foot in US jurisdiction.

Besides this, claiming that the Constitution only protects citizens and legal residents is the worst sort of legalism, because it is in direct opposition to the spirit of law, which is summed up quite well (although not legally binding) in the Declaration of Independence "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

Despicable as the things that terrorists do, they are still humans, deserving of the same legal protections that all humans deserve, and are granted under both US and international law. There is plenty of scope for prosecuting such people for real crimes without going outside the US judicial system. And the value of intelligence gained from these detainees is questionable, as is the efficacy of torture.

As a matter of fact, it was

[rodney_g_graves]

and remains, a great success.

You err when you state that the Geneva Conventions codify the Customary Laws of Warfare. The Geneva Conventions are a formalization of the Customary Laws of Warfare as they pertain to Prisoners of War. They are thus a subset of the Customary Laws of Warfare, but by no means a codification of the whole of the Customary Laws of Warfare.

You should also note that Geneva IV pertains to non-combatants. Terrorists are indeed combatants, and thus fall under Geneva III.

Further note Article 4 of Geneva IV which reads:

Nationals of a State which is not bound by the Convention are not protected by it.

As combatants operating on behalf of NGO's (Non-Governmental Organizations, viz al Qaeda, the Taleban, et al) they represent and are protected by no state, and thus would not be protected by Geneva IV even were they not combatants.

As regards the UN, let them pluck the beam from the eyes of the worst offenders (Iran, North Korea, Sudan, etc.), before undertaking to remove the mote you decry.

I'll get to the other issues when I have more time.

Real Life becons.

Re: As a matter of fact, it was

[jetfx]

Article 4 does define those who do not fall under the category of "protected persons" which most terrorists would fall under. An unprotected person is someone who would be denied access to the provisions of the convention, however as Article 5 states, unprotected persons are not to be denied basic human rights, like freedom from torture and access to a fair trial.

The Geneva Conventions are meant to specifically cover conflict, but they augment rather than supersede international law, which forbids indefinite detention and torture in all cases.

I totally agree with you that other countries are far worse offenders than the US, which I might add has a pretty damn good human rights record, but that is irrelevant to our particular debate, which is focused on your original post. US activities do not become acceptable or lower priority simply because other states are worse offenders. Any state that violates human rights should be criticized and pressured to stop immediately.

And perhaps what leaves such a bad taste, is that the worst violators of human rights usually do not enshrine human rights as pillar of their foreign policy like the United States.

Re: As a matter of fact, it was

[rodney_g_graves]

One of the primary reasons to treat the war on terror as a war vice a matter of law enforcement is the matter of NGO's waging warfare.

They (the NGO's) have arrogated unto themselves the powers of a nation state by waging war against the United States. Sadly for them, since they are not a nation state and do not observe the laws of warfare themselves, that makes them illegal combatants and de facto and de jure war criminals.

The indefinite nature of the conflict is also a by product of their arrogation of the powers of a nation state. It's a foreseeable consequence, and it sucks to be them.

The Customary Laws of Warfare are neither that hard to understand nor that hard to observe. Those who cannot or will not observe them and who nonetheless choose to wage war, deserve to be treated as wolves are.

Decoupling war crimes from the traditional punishments for committing those war crimes (to especially include being an illegal combatant, who were customarily shot out of hand) is to return warfare to the practices of Tamerlane. I, for one, do not view that as an improvement.

Terrorists, who are a wholly contained subset of illegal combatants and war criminals, have but two rights: The right to become dead and the right to remain dead.

Re: As a matter of fact, it was

[jetfx]

"Terrorists, who are a wholly contained subset of illegal combatants and war criminals, have but two rights: The right to become dead and the right to remain dead."

So basically you think that terrorists have no claim whatsoever to basic human rights? If this is so, our debate will merely go in circles.

Re: As a matter of fact, it was

[rodney_g_graves]

A wolf that goes about on two legs is no less a wolf and entitled to no more protections than any other dangerous wild animal.

Re: As a matter of fact, it was

[jetfx]

Terrorists aren't another species so it's not a great analogy.

Re: As a matter of fact, it was

[rodney_g_graves]

Walking upright upon the two hind legs does not a human make.