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)

[edit] Clarification of Citation Request

An unlawful combatant is accorded neither the rights a soldier would normally have under the laws of war, nor the civil rights a common criminal would normally have.[citation needed]

To what aspect is citation required? The claims in this sentence are explained in the remainder of the article. --ANONYMOUS COWARD0xC0DE 05:40, 16 December 2006 (UTC)

[edit] "Unlawful Enemy Combatants" need not be combatants?

The language of Military Commissions Act of 2006 seems to allow the label "unlawful enemy combatant" to be applied to persons who are in no recognizable sense "enemy combatants" of any sort.

From pages 3 and 4 of HR 6166, the Military Commissions Act of 2006 (emphasis added):

‘‘(1) UNLAWFUL ENEMY COMBATANT.—

‘‘§948a. Definitions

‘‘In this chapter:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The

term ‘unlawful enemy combatant’ means—

‘‘(i) a person who has engaged in hos-

tilities or who 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 Commis-

sions 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.

In (i), the phrase "purposely and materially supported" seems extremely elastic. Using a credit card to make a donation through a website could, it seems, make one a "combatant" by this criterion.

The language of (ii) appears to say, in effect, that "An 'unlawful enemy combatant' is anyone the President chooses to call an 'unlawful enemy combatant'." This establishes no criteria at all.

Contrary to what is assumed in most of the discussion in the article, the term "unlawful enemy combatant" does not seem to designate a subset of enemy combatants. If this is correct, I invite someone to edit the article appropriately. 67.117.144.176 07:40, 26 January 2007 (UTC)

Read my comments above. As you pointed out, the definition "An unlawful combatant is [...] a person who [...] 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." in fact simplifies to "An unlawful combatant is anyone we say is one." If Bush decided tomorrow that I am an unlawful combatant, US troops would be obliged to arrest and detain me. JIP | Talk 08:37, 4 February 2007 (UTC)

[edit] Obligation to follow the Geneva Conventions

Critics of US policy frequently blur the distinction between two ideas:

  1. that of not being covered by the protections in the Geneva Conventions, versus
  2. that of not being subject to the protections afforded POWs

Their implication is that the US is ignoring the Geneva Conventions (#1) when declaring that certain spies or terrorists aren't POWs (#2)

(This is like the same critics' tendency to blur the distinction between "rough interrogation" techniques like waterboarding and "real torture" like beating with a truncheon, electric shocks to the groin or cutting off ears.)

How can we sharpen these distinctions? —The preceding unsigned comment was added by Ed Poor (talk • contribs) 14:56, 9 February 2007 (UTC).

No need, since there is no distinction. "Rough interrogation" as used by the current administration qualifies as torture under the longstanding international definition. Furthermore, the UN has already commented that this is exactly the case. So, this is a euphemism, propaganda if you will, to blur peoples perception of what the US is doing. Second, most sholars of international law disagree with the notion that none of the GC would apply. Again this assertion by the Bush administration is contrary to current consensus. In addition, the Supreme Court has reaffirmed that view with their recent ruling that the GC apply to every detainee in the War on Terror. Nomen NescioGnothi seauton 15:26, 9 February 2007 (UTC)
There is a distinction btween torture and inhuman and and degrading treatment the the ECJ ruled that the five techniques "did not occasion suffering of the particular intensity and cruelty implied by the word torture ... [but] amounted to a practice of inhuman and degrading treatment". The point is that as the article on torture highlights, section 16 of the United Nations Convention Against Torture: contains the obligation to prevent "acts of cruel, inhuman or degrading treatment or punishment", but only in "any territory under its jurisdiction". So a state is not prohibited from allowing coercive techniques short of torture conducted in a territory not under its jurisdiction. Which is probably one of the reasons that QB was originally chosen. --Philip Baird Shearer 18:00, 9 February 2007 (UTC)
And Ed, apologists for the Bush Administration routinely try -- perhaps through honest unfamiliarity -- to suggest that the Geneva Conventions endorse the torture of captives who don't qualify for the protections of POW status.
Ed, please remember that the Geneva Conventions proscribe other things beyond torture, like humiliation and religious discrimination.
Please remember that article five of the third Geneva Convention requires captors to afford all captives the protections of the POW status, until a "competent Tribunal" convenes to determine their status. The Tribunals the USA has used, in the past, to determine whether a captive really meets the criteria of a POW are described in AR-190-8.
Bush apologists argue that the Combatant Status Review Tribunals are "superior" to Geneva Convention Tribunals, because they add an additional officer. However, they lacked the mandate of a Geneva Convention Tribunal, or an AR-190-8 Tribunal.
AR-190-8 Tribunals have the authority to determine that a captive was
  1. In fact a lawful combatant, who qualified for the protections of POW status after all.
  2. A civilian refugee, who was not a combatant, who should be released immediately.
  3. Or someone who somehow stripped themselves of the protections of POW status.
Without regard to how large a staff the Combatant Status Review Tribunals had, they did not fulfill the USA's obligation to convene a "competent tribunal". because they lacked the mandate to consider whether the captives qualified for POW protection. See Moazzam Begg's CSRT for the details.
The Bush administration's original policy was that the President could rule that the USA could skip the step of holding competent tribunals for the captives in the GWOT. Bush apologists twisted one phrase in article five, which said that a competent tribunal had to be convened "if there is any doubt" over the captive's status. Bush apologists asserted -- President Bush doesn't have any doubts they are terrorists -- so he doesn't have to authorize any Tribunals.
The USA has three branches of government -- this aspect of the Bush detainee policy was overturned by the SCOTUS. The SCOTUS ruled that the DoD convene Tribunals similar to those described in AR-190-8. In response the DoD quickly cobbled together the CSRT procedure -- which bears a surface similarity to AR-190-8 tribunal. But the CSRT differed from AR-190-8 tribunals in the only way that really matters -- they lack the authority to determine whether a captive was entitled to the protections of POW status. US District Court Justice Joyce Hens Green reviewed the CSRT procedure, and ruled that they were unconstitutional.
So, the USA has, still, not convened the competent tribunals that they are obliged to convene. Yet they are not affording their captives the protections of POW status.
Hence the USA is violating the Geneva Convention.
Go ahead. Look it up for yourself.
Cheers! -- Geo Swan 17:41, 9 February 2007 (UTC)

I've glanced recently at the Geneva Conventions. Regardless of a captives classification as "POW" or spy or terrorist or non-combatant civilian, the GC forbits:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. [2]

Torture is mentioned in (a) above, and "humilating and degrading treatment" in (c). Just wanted you to know that I realize this. I'm a former army man, and I studied this sort of thing to help me decide whether to apply to OCS.

I think the disctinction that needs to be made is over whether branding a captive a spy or terrorist would deprive him of Geneva protections. According to my simple reading, it would not. Spies can't be tortured, and terrorists can't be humiliated.

The political wrangling is over whether a peremptory classification of a captive as an "illegal combatant" is a de facto refusal to accord them Geneva protections. Bush and Rumsfeld were apparently saying that that illegal combatants don't get POW protections, but I don't recall them saying that clauses (a) and (c) cited above would no longer apply.

Who's saying that? --Uncle Ed 17:53, 9 February 2007 (UTC)

If someone is an enemy combatant then they fall under GCIII where their nationality is of little practical concern, because many state's armies, (like for example the British Army - Hello Tommy Gurkha and Tommy Fijian), may have a lot of non citizens in their ranks. But after competent tribunal has ruled that a person is an unprivileged belligerent, then that person only get protection under GCIV if they are a protected person as defined in GCIV. Enemy citizens of a power engaged in a war with the US would qualify, but citizens of the U.S. or allies in a war, or citizens of neutral states with diplomatic representation with the U.S. are not protected persons under GCIV. So for most of the people held as unlawful combatants by the US, with the possible exceptions of Afghan and Iraqi nations, are not protected persons under GCIV. The people not covered by GCIV of course should still have protections under US law and thanks to the US constitution under other treaties like United Nations Convention Against Torture. But as I pointed out above torture and "inhuman and degrading treatment" are not the same thing under international law and because of article 16 of ICAT, as far as I can tell, people can be treated differently by the US depending on the jurisdiction where they are held. If the place they are interrogated is not under US jurisdiction then they can subject someone to "inhuman and degrading treatment" which is of a particular intensity and cruelty to be torture (see five techniques) and still be within U.S. treaty obligations. --Philip Baird Shearer 18:37, 9 February 2007 (UTC)
My understanding of the Geneva Conventions is that the USA can't strip an y protections from captives, until they convene that competent tribunal, like that described in AR-190-8, and unlike the CSRT, that has the authority to determine whether the captive is a civilian refugee, a lawful combatant, or someone who has done something to strip themselves of the protections of the Geneva Conventions.
My understanding too, and one that the US Supreme Court seems to agree with Article 6, paragraph 2, of the Constitution of the United States. But the question was were they under the jurisdiction of the Civil Courts. AFAICT the Supreme Court seems to think that they were. That was not the point I was making, I was making the point that if they had been in front of a GCIII competent tribunal, because of the nationality of many of the prisoners, if they are not protected by GCIII many would not be not covered by the protection of GCIV. Even if they are, the U.S. administration can invoke other articles in GCIV as listed in the article to circumvent parts of the treaty's protection of civilians. --Philip Baird Shearer 00:12, 11 February 2007 (UTC)
My understanding is that the SCOTUS had the authority to over-rule the President, and that they did so. My understanding is that Joyce Hens Green had the authority to overrule the DoD as to whether the CSRT fulfilled the USA's obligation to convene a "competent tribunal", and that she did overrule the DoD. Even the retired JAG General who was the first convening authority for version 1.0 and version 1.1 of the military commissions said that any Guantanamo captive who claimed to be a civilian, or claimed to deserve POW treatment had raised the necessary doubt that they should have a competent tribunal authorized to determine their status.
Note again, the CSRTs did not confirm the classification of the captives as "illegal combatants", they confirmed their classificaiton as "enemy combatants" -- not even addressing whether their combatant status was lawful or unlawful.
With regard to who asserted that a peremptory classification -- ie no competent tribunal first -- can strip a captive of the protections against humiliation and outrages against personal dignity -- Didn't Rummy explicitly authorize "stress positions", "dietary manipulation", "enforced nakedness", "enforced grooming", the removal of "comfort items"?
  • Captives collapsed from the pain of these "stress positions" -- so I think this is at least "torture-lite".
  • A difficult one! One has to read the ECHR ruling in the "five techniques"[3] specifically paragraph 167, for guidance but that was some time ago and international law moves on, so short of another court case with these specific circumstances, one can not say with certainty if it was or was not torture. A more interesting question is in using these techniques in Cuba were they in breach of the torture treaty Article 16: "In any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment". If so whether it was torture or not is a mute point the US would still be in breach of its treaty obligations if GB was under its jurisdiction. --Philip Baird Shearer 00:32, 11 February 2007 (UTC)
  • When General Sanchez's office passed on the authorization for dietary manipulation, over his signature, it added fine print saying that the manipulated diet had to be sufficient in calories, and vitamins, etc. But it could be delivered late, cold, off-schedule, unfamiliar, unpalatable. It just couldn't be "bread and water", or of insufficient amount. However, when his authorization was implemented, in Abu Ghraib, the fine print didn't get taken into account, and "dietary manipulation" did get implemented as "bread and water", or starvation.
  • For muslims enforced nakedness and enforced grooming did constitute religious oppression. For "enforced grooming read "hogtying them, and shaving off their beards, shaving their heads bald." Given the cruelty Miller authorized, it wouldn't surprise me if they shaved off the captives eyebrows and public hair as well.
  • If you look at the factors favoring Mesut Sen's continued detention you will see one of the factors favoring his continued detention was that he "lead prayer sessions" in Guantanamo. For crying out loud -- isn't this out and out religious discrimination?
  • There are captives who, during their Administrative Review Board hearings, were able to refute all the allegations against them, who were then given highly unprofessional, dishonorable tongue-lashings from their hearings Presiding Officers. I think it was just one Presiding Officer delivering these tongue-lashings. The first one I read was the most shocking. As I read it, I wondered if the Presiding Officer who delivered it was drunk, or on drugs. The captive had given reasonable sounding answers to all the allegations against him. He sounded innocent of being a combatant to me. And I think he must have sounded innocent to the Presiding Officer as well, because he didn't address any of the factors at all. Instead he launched into a blistering denunciation of the captive, and told him how his attitude disgusted him. Why? Because he had read that, during the four years of his detention without charge in Guantanamo there was a record that one or more guards had recorded he had uttered "anti-American" sentiments. Well, for crying out loud, why shouldn't an innocent man, kidnapped from his home after a false denunciation, and held, for years, without charge, without a meaningful chance to challenge the evidence against him, express dissatisfaction with his treatment?
    • There are other captives who had their Board members tell them (paraphrasing): "We know you were innocent, when you were captured. We have heard your assurance that, when you were captured, you were a man of Peace. That doesn't matter. Your release now hinges on you convincing us that after four years of feeling a sense of injustice over your detention, without charge, based on false allegations, you haven't become radicalized, and become a threat to the USA. You have to bear in mind that we have certain knowledge that you have now spent four years in close contact with committed terrorists."
  • Removal of comfort items is also a form of religious discrimination. Muslims are not allowed to pray if they aren't "clean". Being clean requires bathing. But these comfort items include their soap, shampoo, toothpaste, toothbrushes, wash cloths, towels. When these items are stripped from them, they are in a religious dilemma. Should they pray, even though they can't make themselves clean first?
  • Released captives say there is an epidemic of tooth decay in Guantanamo -- due to the widespread stripping of toothpaste and toothbrushes.
Cheers! -- Geo Swan 20:14, 9 February 2007 (UTC)
I am not advocating rough interrogation, Rumsfeld is. But as a contributor I feel we should make a distinction between (a) rough interrogation and (b) "torture".
If, however, there is a significant minority (or larger!) advocating that no distinction be made between (a) and (b), then we need to describe their viewpoint. For example,
  • Don Turtem of Physicians for Social Responsibility said that rough interrogation techniques like waterboarding are really a form of torture.
  • Getze "Scoop" Frommim, a retired US general, said that rough interrogation is not torture. "It don't leave no marks or even really hurt the mutt. It just scares him a bit."
How does this approach sound? (Should this discussion move to Rough interrogation?) --Uncle Ed 14:35, 12 February 2007 (UTC)
Why is it the role of wikipedia contributors to draw the distinction between "rough interrogation", whatever that is, and torture? You write as if you think there is some kind of consensus that waterboarding is not torture. Did you mean to suggest this? If so, what is your reasoning for this?
Why shouldn't sleep deprivation that is extended enough to put one in an altered mental state be considered torture? Mohamed al-Kahtani's sleep deprivation was so prolonged that the FBI described him gibbering in a corner. Why shouldn't that be considered torture? There were almost one hundred hunder strikers thirteen months ago. Then the camp authorities started using a "restraint chair", during forcefeeding. The captive is strapped in the chair, which restrains their limbs, their head, their torso, from all movement. Then the tube is forced down the captives throat.
There was a controversy over the size of the tube. The captives claimed that the tubes were being inserted by untrained guards, who used over-size tubes. The DoD denied it, and trotted out -- again -- the bald-faced lie that the Manchester manual taught al Qaeda members to lie. Quietly, however, the chief doctor at the prison infirmary acknowledged that the infirmary had used oversize tubes. 4mm is the conventional size. 4.8mm tubes were used for a while, and 6mm tubes were used for a shorter period of time.
Gravity forces the feeding fluid down the tubes. The captives described the staff over-filling them, so that they suffered excruciating cramps. The captives speculated that their feeding fluid was being adulterated with laxatives.
The new procedure required the captives to remain strapped in the chairs for extended period times -- longer than the manufacturer's recommendation. The ostensible justification is that strapping the captives in the chairs has to be long enough to prevent them from going to the bathroom and inducing vomiting, thus undoing the force-feeding.
The captives felt that the new feeding procedures were a form of torture. It practically broke the hunger strike, cutting the number of strikers from almost a hundred to about half a dozen.
FWIW one of the three men who the DoD reports committed suicide was one of the half dozen men who continued to endure the use of the restraint chair. He had been on the hunger-strike for almost an entire year, six months of that in the "restraint chair" regime.
Little known fact -- the three men's corpses were sent to their families about a month later. A blue-ribbon panel of international forensic pathologists volunteered to conduct independent, third-party autopsies. The families suspected hocus-pocus because the corpses were missing some internal organs. Dr Patrice Mangin, a senior French pathologist who headed the panel, reassured the families that pathologists routinely remove organs like the liver and brain, that spoil quickly. But, he said, he was concerned that the Guantanamo camp authorities had not sent the men's throats. He said it was essential for his team to have the dead men's throats, and to have the sheets the camp authorities claimed the men used to hang themselves.
All three men had been recent hunger strikers -- one of them for almost an entire year. Were the men's throats kept because they would allow lesions from the force-feeding to be made public? Is it possible that the men really died from the force-feeding, that the wounds inside their throats, from the repeated insertion of the feeding tubes would suggest the men were murdered? The DoD could easily disprove this hypothesis by cooperating with the internation panel. I think it reflects very poorly on the USA that the DoD has not done so.
Another little-known fact -- the guy who had been on the hunger strike for almost a year had been designated to be released soon -- but he didn't know this because the Guantanamo camp authorities were playing a cruel game where they wouldn't let his lawyers meet with him, or deliver their mail. They kept changing the way they spelled his name, and then telling his lawyers "we can't deliver your mail because we don't have any captives listed under the name you have given us." -- the record shows that the DoD had changed the way they listed his name at least three times -- the last time less than a month before he died.
Worse, the only justification the USA has offered for his continued detention was an association with the Islamic missionary organization Tablighi Jamaat. That is it. Take a look at Allegations that Tablighi Jamaat has ties to terrorism. Richard Reid, and some other men known to have tried to join al Qaeda were first members of Tablighi Jamaat. Well, this Tablighi Jamaat has millions of participants. That dozens or even hundreds of them were once Tablighi members should be insufficient, in and of itself, to justify continuing to detain a captive for years on end. Neither should the claim (unsubstantiated so far as I can determine) that terrorists claim they are traveling to join a Tabligh pilgrimage in order to provide a cover for travel for terrorist purposes. Since this is the only justification the USA has offered for his detention I am going to believe he was one of the Guantanamo captives who was totally innocent.
Sorry, I got off topic. Drawing the distinction you suggested would be tricky. For us to do so would pose a serious rick of one or more of us putting POV material into article space.
Oh, could you let us know whether we convinced you that the USA is, currently, in violation of the Geneva Conventions, for its failure to convene competent tribunals which are authorized to rule whether the captives are civilians who should be released, or lawful combatants, who should continue to be accorded all the protections of POW status? Have we convinced you that the USA is in violation of the Geneva Conventions for not extending all the protections of POW status to their captives until competent tribunals determined they were not civilians or lawful combatants?
Cheers! -- Geo Swan 03:26, 13 February 2007 (UTC)

Has the US government offered any justification or explanation as to why they think these "unlawful combatants" do not fall under the category of POWs, other than the cited definition, which basically amounts to "because we say so"? JIP | Talk 21:13, 20 February 2007 (UTC)

[edit] Constitution of the United States

At the moment there seems to be a clash in this article between the relevent merits of Article 1, section 8 and Article 6, paragraph 2 of the Constitution of the United States.

  • Article 1, section 8 "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
  • Article 3, section 6 paragraph 2 "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

I would have taken captures to be property captures, otherwise the word prisoners would be used, but I have no legal source for this. Has there been a ruling on it, or if Article 6 (GCIII in this case) trumps it?--Philip Baird Shearer 00:12, 11 February 2007 (UTC)

I dunno. But I had an interesting book when I was a kid, an account, by CS Forester, the author of the Horatio Hornblower novels, about America's first declared war, the war against Tripoli. Mismanaged. Two ineffective COs, one really excellent CO, Edward Preble, who had to come home because of seniority issues, then two more acceptable COs.
Anyhow, Congress's first orders to the task force's Captains were that they were to "sink, burn or destroy" all the Tripolitan warships. It did not authorize them to "take". So, in order to comply with their orders, if the Tripolitans surrendered, they had to let them sail away. IIRC, it took a year or more for Congress to understand they had to issue new orders, to "take, sink, burn or destroy" -- allowing the Captains to capture the enemy vessels.
Interesting to compare how much more involved Congress was then, than now, -- Geo Swan 21:02, 11 February 2007 (UTC)
Wikipedia has some more about that, here. --Uncle Ed 00:07, 13 February 2007 (UTC)

[edit] Carceleros de Guantánamo

What on earth is that a picture of? Needs a better caption. KristoferM 02:28, 17 March 2007 (UTC)

[edit] Italian military internee in Germany 1943

In September 1943, around 600.000 Italians were taken prisoners by Germany after Italy signed agreements with the allies. While they were first regarded as POWs, a decree by Hitler in September 1943 coined the term "military internee" for these people, which officially removed their POW status, thus stripping them from the protection by the Geneva convention. There is a short article in the German Wikipedia at http://de.wikipedia.org/wiki/Militärinternierter .

Though the terminology is different, I think that there should be a reference to this fact in the article, as the effect of "unlawful combatant" and "military internee" is similar.

It might also be interesting to point out that the status of "military internee" was declared illegal directly after the war, making the Italian prisoners POWs again and thus excluding them from any "compensations" (pension, reparations etc.) payed by Germany or Italy, as these normally only cover civilian damages. The latest confirmation of this policy was by the German Constitutional Court in 2004 (BVerfG, 2 BvR 1379/01 of 28.6.2004) on the question if the Italian POWs will get compensated by the "Stiftung Erinnerung, Verantwortung und Zukunft" for their work in German companies during the war. --Schoelle 15:58, 29 March 2007 (UTC)

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