Talk:Unlawful combatant

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[edit] Supreme Court 1942

See the start of this thread in Talk:Unlawful combatant/Archive 4#Supreme Court 1942

Wing Nut's own sources acknowledge that every Guantanamo detainee was entitled to POW protections until their status was determined by a competent tribunal. This would be the real article five -- not the one that Wing Nut thought he was citing earlier. -- Geo Swan 10:59, 30 August 2006 (UTC)

A tribunal is only required to determine status if there is doubt as to their status (which there was not, as they were captured bearing arms but out of uniform), which is clear if you read those references carefully. After people called this into question as a protest, not because their is any real question, then they had a right to a quick tribunal to determine their status, as has happened. Also a tribunal is required to determine whether they should be punished (if punishment is intended), including punishment for violating the laws of war. In the past, such illegal combatants were normally executed after such a tribunal; incarceration of illegal combatants (as opposed to execution) was rare, usually reserved for high-value prisoners.Cuberoot31 01:34, 2 September 2006 (UTC)

The status must be in doubt unless both parties agree to the status. In most cases a POW is likely to agree that he or she is a POW and expect the protection of the Geneva Conventions, but it is unlikely that an unlawful combatant is likely to agree to be classified as such which is were paragraph in GCIII Article 5: (Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.) comes in, and the need for a competent tribunal to decide the issue. GCIII makes clear that only a competent tribunal can ascertain if the captured person does not belong to any of the categories enumerated in GCIII Article 4, it is not down to front line troops to make a decision. --Philip Baird Shearer 17:22, 2 September 2006 (UTC)


Brigadier General John D. Altenburg, the former deputy judge advocate general, who was the appointing authority for the military commissions, explicitly stated that, in his legal opinion, any of the detainees who ever asserted that they were a noncombatant, should have their status determined by a competent tribunal.
Cuberoot31, you assert that there was no doubt about their status as they were captured bearing arms but out of uniform.
  1. How many transcripts from the Guantanamo detainees Combatant Status Review Tribunals or Administrative Review Board hearings have you read?
  2. How many Guantanamo detainees can you name who were captured bearing arms out of uniform?
Cuberoot31, you realize that, after decades of civil war, practically every household in Afghanistan owns an AK47? You realize that, after decades of civil war, used AK47s were extremely cheap, and were available for sale in every bazaar.
Cuberoot31, I have read over 200 transcripts. The Tribunal officers were surprised when AAfghans told them they did not own an AK47. They told those detainees that they had got the impression from the other Tribunals that every Afghan household needed an AK47 to protect their household from theft. The detainees who claimed they didn't own an AK47 told their Tribunals that they were poor, so poor, they had nothing worth stealing, so they didn't need an AK47 to protect themselves.
Cuberoot31, can you tell me if you read any official allegation that the US intelligence officials knew that the Taliban didn't wear a uniform?
  • If you go and read article 3, article 4 and article 5 of the third Geneva Convention for yourself -- I highly recommend you do so -- you will find that the Geneva Convention does not actually state that a combatant has to wear a "uniform" or they will be considered an unlawful combatant. If you read those article for yourself you will find that they have to be wearing a "distinctive marking, recognizable at a distance".
  • The allegations against several of the Guantanamo detainees was that they had been issued "Taliban uniforms". What is this Taliban uniform? Black turban, matching light beige tunic and pants.
  • So, I'd like to know if the meme that none of the Taliban were wearing an uniform can be traced to any Bush administration officials, or whether it has arisen from supporters of Bush administration policy. Did you read it from a quote from a Bush administration official?
FWIW, take a look at the allegations against Khirullah Khairkhwa. .He was appointed to be the Governor of the Province of Herat by Mullah Omar. The allegations against him said that he was in command of all the police and military forces in Herat, and that he, in turn, reported directly to Mullah Omar. Well, one of the other criteria for whether a combatant is a lawful combatant is whether they were answerable to officers who were responsible for their actions, and, in turn answered up a chain of command. Well, if American intelligence analysts allege that a provincial governor was in command of all the military forces in his province, and in turn answered to the big cheese, IMO that blasts the stuffing out of the meme that Taliban fighters were not lawful combatants because they did not answer up a chain of command.
Cuberoot31, may I suggest you go back and re-read your notes? You asserted: "After people called this into question as a protest, not because their [sic] is any real question, then they had a right to a quick tribunal to determine their status, as has happened."
You are completely mistaken if you think that a single Guantanamo detainee has had a Geneva Convention competent tribunal. The Combatant Status Review Tribunals bear some surface similarities to the tribunals described in AR-190-8. That army regulation sets out how Army JAG personnel should convene competent tribunals that fulfill the USA's Geneva Convention obligations to hold competent tribunals. While both proceedings had three tribunal officers to make the decision, and various other surface similarities, the most important task for a Geneva Convention competent tribunal is to determine a captive's status: whether they were lawful combatants, civilians, or a combatant who violated the laws and customs of war such that they stripped themselves of lawful combatant status.
The Combatant Status Review Tribunals task was not to determine whether the detainee was a civilian. The Combatant Status Review Tribunals task was not to determine whether the detainee qualified for POW status. The sole task of the Combatant Status Review Tribunal was to confirm whether the secret determinations that had already been made by US intelligence analysts that the detainees met a very broad definition of "enemy combatant" was correct. See Moazzam Begg's CSRT. It spells out, in detail, that the CSRT did not have the authority to consider whether the detainees were lawful combatants who qualified for POW status.
It has been pointed out that the definition of "enemy combatant" used by the CSRT was so broad that the little Swiss grandmother, who innocently sent a small donation to what she thought was a legitimate charity, would meet the definition of enemy combatant if one of the charity workers diverted some of the charitable resources to support a terrorist project.
Your assertion that the CSRT was in response to pressure from "people" is another assertion that is simply incorrect. The CSRT was in response to a Supreme Court ruling Rasul v. Bush.
Cuberoot31, I am not trying to discourage you from contributing to the wikipedia. But I would encourage you to make a greater effort to do more research. Or, alternatively, if you don't have the time, or experience, to do more research, why don't you consider raising your issues as questions, rather than assertions? If you raise your issues as questions, "didn't the CSRTs fulfill the USA's Geneva Convention obligation to hold a competent tribunal?" -- then you don't get your emotions up, and don't feel backed into a corner, if other contributors who have done better research than you come forward with refutations to the beliefs you held.
Cheers! -- Geo Swan 15:11, 3 September 2006 (UTC)
They bore arms in conflict without a "fixed DISTINCTIVE sign recognizable from a distance" GCIII (your "uniform" is not distinctive). Most of them were captured on the field of battle. The Taliban most definitely did not and do not conduct their operations in accordance with the laws and customs of war (it carries out operations deliberately targeting civilians). Therefore, they do not qualify as POWs. On top of that, those in Guantanamo are excluded from Geneva Conventions protections because the Taliban was not party to the Geneva Conventions, based upon article 2 of GCIII and GCIV. Therefore, if they are combatant, by the simple fact of not being a member of a contracting party's armed forces, citizen of a contracting party defending their own nation, and not being a civilian, they do not qualify for POW status. On top of that, most of those still in Guantanamo were not nationals of Afghanistan, and were citizens of nations that have normal diplomatic relations with the US, thus are excluded from protection of GCIV by article 4. I suggest reading the limiting clauses of the Geneva Conventions before citing irrelevant references.Cuberoot31 02:28, 6 September 2006 (UTC)
  1. If it was distinctive enough to serve as a justification to continue to detainee those detainees then it is distinctive enough strip the Bush administration from using the justification that "the Taliban don't wear uniforms" as a justification for not treating the Guantanamo detainees suspected of being Taliban fighters as lawful combatants.
  2. Where did you get the information that most of the Guantanamo detainees were captured on the field of battle? I urge you, in the strongest possible terms, to read the first Denbeaux study -- which documents how the detainees were captured. Less than ten percent were captured by American GIs. A large fraction were captured by bounty hunters. Most were captured in Pakistan, peacefully, by border guards, regular police, or the headmen of the isolated villages in the mountain passes. I've got news for you. The DoD wasn't even claiming most of the detainees were fighters.
  3. You assert that Taliban soldiers don't conduct their operations in accordance with the laws and customs of war? Excuse me? How could this possibly be a justification to excuse the USA from conducting competent tribunals to determine whether the detainees in question were in fact Taliban fighters? Read the Denbeaux study, and you will learn what fraction of the Guantanamo detainees the DoD claims were Taliban fighters. I've got news for you. The DoD wasn't even claiming most of the detainees were members of the Taliban or al Qaeda.
  4. You assert -- "Therefore, if they are combatant, by the simple fact of not being a member of a contracting party's armed forces, citizen of a contracting party defending their own nation, and not being a civilian, they do not qualify for POW status." -- And how was it determined whether they were combatants? Well, countries that comply with the Geneva Conventions do so by convening competent tribunals.
  5. You assert that the Guantanamo detainees were not protected by the Geneva Conventions because the Taliban were not signatories? You realize that Afghanistan IS a signatory to the Conventions?
  6. You are correct, civilians who are citizens of countries that are not parties to the conflict are not protected by the Geneva Conventions -- because they should be enjoying greater protection by virtue of their country's neutrality. However, if they are captured, because they are suspected of being combatants, then they too should have their status determined by a competent tribunal.
Cheers! -- Geo Swan 08:34, 15 September 2006 (UTC)

[edit] POW, civilian, or what?

Here's a point of view from 2 former Justice Department lawyers:

the Supreme Court has not required that the Geneva Conventions be applied in the war on terror; neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status because of the Hamdan decision. [1]

Rivkin and Casey suggest that Bush opponents are misreading Hamdan v. Rumsfeld. I'd like to see their POV included in the article, to balance out the anti-Bush POV. --Wing Nut 13:53, 13 July 2006 (UTC)

Not relevant since this ruling says nothing about POW/unlawful combatant status. What exactly is it you want to mention? Nomen NescioGnothi seauton 14:42, 13 July 2006 (UTC)

Some more on this:

--Philip Baird Shearer 14:52, 30 August 2006 (UTC)

I'd like to note that Wing Nut's comment is clearly relevant, as Hamdan v. Rumsfeld is used in this article, and POW status is the center of this discussion.PeaceThroughStrength 05:53, 2 September 2006 (UTC)

[edit] Neutral point of view?

This article appears to put in a few token comments of the basis of the theory of what an unlawful combatant is, and then has about ten times as much content claiming to disprove it. I do not consider that a neutral point of view. In addition, I have found in the past significant citation errors, and I am sure there are more in the citations I haven't read all the way through. I am not impressed by large numbers of false or exaggerated citations, though those with less time to read them carefully might be. I think it's critical to note these facts: 1) an illegal combatant is a combatant who isn't a legal combatant; this is an ancient and easily understood definition. 2) Article 2 and 4 of GCV III & IV clearly limit who is provided the protections of the conventions. This is so there aren't free-rider nations who ignore the conventions in carrying out war crimes, but whose nationals then claim the protections of the conventions when captured. If this wasn't the case, it would mean that nations would have absolutely no incentive to abide by the conventions. 3) It can be useful to differentiate here between US law and international law; some citations mention protocols the US isn't signatory to, which can cause confusion. If the US hasn't ratified a law, how is it in violation of said law? International treaties do not have automatic sovereignty.PeaceThroughStrength 05:48, 2 September 2006 (UTC)

I would wonder about the neutrality of a user called "PeacethroughStrength" —The preceding unsigned comment was added by 220.39.230.108 (talk • contribs).

Thank you Mr. Anonymous. My title refers to a historical correlation for a free and law-abiding society -> if it maintains a strong military and the economy to support it, it can often have peace. If it lets itself grow weak, it tends to be forced into war more frequently. Si vis pacem, para bellum. I would note that I do not claim to be neutral on this topic, but my POV is backed up by original references, and I desire clarity and balance, which are lacking in this piece.PeaceThroughStrength 05:55, 15 September 2006 (UTC)

I also think the article is a bit off from neutrality, and I changed the wording of one sentence because it seemed to strong. A lot more work would be needed to substantially improve neutrality. However, adding a POV tag to this page in an edit marked minor and without comment probably wasn't the way to go. POV tags are not minor edits- they color the entire way a page is seen. Jcobb 20:16, 15 September 2006 (UTC) Noted; I default to minor edits, and forgot to turn that off.PeaceThroughStrength 06:22, 19 September 2006 (UTC)

"If you look for peace, prepare for war"? So would you call yourself a National Socialist? Honestly curious! dreddnott 19:12, 28 September 2006 (UTC)
Sorry to post as an "anon" but I just wanted to point out that you blow any sense of NPOV right off the bat with the first sentence. While this term has been popularized by the Bush administration, it wasn't invented whole cloth by them. Its like starting an article about peanut butter and banana sanwiches by saying they are what Elvis used to eat.

[edit] New anti-terrorism law

Does the new anti-terrorism law in the USA grant the Bush administration the right to label anyone they want as an unlawful combatant, without having to explain it or supply any proof? That's what I've heard from criticism. JIP | Talk 17:35, 9 October 2006 (UTC)

It does indeed seem to do just that. The relevant text from the bill is in the Military Commissions Act article. Ah heck, I'll reproduce it here, so you don't have to go dig through that article:

The term ‘unlawful enemy combatant’ means— ‘‘(i) a person who has engaged in hostilities or has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or ‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Part 2 of this definition does seem to say that the mere act of designating a person as a UEC is sufficient to validate that determination (via a CSRT or competent tribunal, of course). ArielGlenn 17:20, 16 October 2006 (UTC)

I've added a pointer to the article on the MCA, since that will soon be the legally binding definition of UEC. I'd like to see this article move to have the title "Unlawful Enemy Combatant" with a redirect from Unlawful Combatant, since that will now be the term everyone uses. Thoughts? ArielGlenn 17:37, 16 October 2006 (UTC)

Yes, it looks like "an unlawful combatant is a person who [...] has been determined to be an unlawful enemy combatant" basically means "an unlawful combatant is whoever we say is one". JIP | Talk 05:03, 17 October 2006 (UTC)

[edit] Poor, POV definition

The first paragraph tears right into the Bush admininstration's definition of "unlawful combatant", as though that's the only time such term has ever been used. I then goes on to talk about the Geneva Conventions, and 1942 court cases; if the only source for "unlawful combatant" is the Bush administration, then why are those in the article? The introduction needs to be very clear on the distinctions of a person captured in a war. They can be:

1. a noncombatant; these are afforded certain rights by the Fourth Geneva Convention
2. prisoners of war; these are afforded certain rights by the Third Geneva Convention article 4 POW rules. These consist of:
  • regular troops
  • irregular troops with ALL of the following:
    • fixed distinctive sign identifying them as combatants
    • a responsible chain of command
    • open carrying of arms
    • following the rules of war
3. occupants of a non-occupied territory who spontaneously take up arms, given the meet the following:
  • open carrying of arms
  • following the rules of war
4. any other combatant

Any captured person in category 4--which describes many of those fighting occupation in Iraq--are not covered by the protections in the Geneva Conventions, and is generally considered an "unlawful combatant". The breakdown into "lawful" and "unlawful" combatants has been in place since the 19040s, when the Third and Fourth Geneva Conventions were ratified. The Third Geneva Convention also explicity recognizes that there are combatants who are NOT subject to the protections afforded POWs, as it states "when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal."

The 1977 Protocol I extends protection to some combatants of alien occupation or racist powers, which does expand the POW defintion and should be mentioned (but neither the US nor Iraq have accepted Protocol I, so it's not applicable in that conflict). It has some serious flaws in that it lacks definitions for what constitues an "alien occupation" or "racist regime", and does not require the combatants to be following the rules of war. One restriction Protocol I adds is that it explicity states that mercenaries are NOT covered by the POW rights in the Third Geneva Convention. This may well cover a number of the US detainees from Iraq, as there are reports of non-parties to the conflict offering large rewards to the families of "martyrs" killed in Iraq.

As for the US and prisoners taking in Afghanistan and Iraq; the status of "unlawful combatants" is vauge; should the be subject to US territorial law when they are not US citizens, residents, or even present in the US? If so, then you're implying that US law should apply globally, and I'm sure that opinion won't fly over at the UN. The only rules covering those prisoners would then be US laws and military regulations specifically covering non-POW prisoners. These may choose to extend more rights to prisoners, but they are under no obligation to. Hamdan v. Rumsfeld, which did this by declaring the tribunals held to determine the prisoner status invalid, seems to me to also be suspect, as the Supreme Court ruled that the Supreme Court has jurisdiction over these cases, and that seems to be a clear conflict of interest... scot 19:43, 10 November 2006 (UTC)

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