June 29, 2006
— Ace Via Confederate Yankee comes this from SCOTUSblog:
Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "
o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.
This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
If I'm right about this, it's enormously significant.
Posted by: Freecat at June 29, 2006 09:05 AM (p47ki)
Posted by: JackStraw at June 29, 2006 09:08 AM (J8+2b)
Posted by: MH at June 29, 2006 09:12 AM (nlOl+)
BTW, I've been thinking-- perhaps it's time to stop trying to look at terrorists in the sense that the Geneva Conventions could potentially apply. The common alternative is thought to be domestic criminal law, but what if we just call them "pirates"?
Here's somebody who wrote about that possibility in Legal Affairs last year.
I'm not completely convinced-- after all, we're still talking about *criminal* law, albeit of the international kind-- but I'd rather explore that option than try to fuck up the clear incentive to lawful combat contained in the Geneva Conventions.
After all, the Geneva Conventions can't *possibly* apply to a non-state actor who is not only unwilling but definitionally unable to sign a binding agreement, let alone do what state actors can do (i.e. guarantee the safety of and access to POWs on their sovereign territory, maintain command authority, sign articles of surrender, etc.).
Let's call 'em pirates, hang 'em from the yardarm, keep the Geneva Conventions for wars between legitimate states, and call it a day.
Dave at Garfield Ridge
Posted by: Dave at Garfield Ridge at June 29, 2006 09:13 AM (4P9aC)
Posted by: dj elliott at June 29, 2006 09:13 AM (wLsKz)
Posted by: jones at June 29, 2006 09:14 AM (lJUwT)
Posted by: Laddy at June 29, 2006 09:14 AM (8ZKvS)
Posted by: shawn at June 29, 2006 09:17 AM (yp3GE)
Torture is forbidden in all circumstances, regardless of who it is. Even pirates (arrr...). The military's position is that its stress positions do not constitute torture or cruelty.
This ruling changes nothing. It does not confer POW status on them. (I will grant them POS status, though.)
Posted by: Roy at June 29, 2006 09:19 AM (2XXia)
Posted by: The Raven at June 29, 2006 09:25 AM (WQQwm)
These scumbags deserve to be tortured by any means possible to obtain any parcel of useful information that will lead to Al Qaeda's undoing. Then they should be shot as war criminals. Plain and simple.
Posted by: compos mentis at June 29, 2006 09:27 AM (xHpUK)
Posted by: Bud Norton at June 29, 2006 09:28 AM (InP8F)
Posted by: Tushar D at June 29, 2006 09:30 AM (tyRhL)
They can't have it both ways, the Geneva Convention is designed to provide sanctuary you violate that you can be summarily executed. That isn’t without precedent.
Posted by: American Barbarian at June 29, 2006 09:31 AM (5Xp8h)
Posted by: The Colossus at June 29, 2006 09:34 AM (M/L6i)
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.
A spy taken in the act shall not be punished without previous trial
Posted by: Roy at June 29, 2006 09:42 AM (2XXia)
The detainees can still be found to be combatants not covered by the conventions by a military tribunal or court if they meet certain conditions (such as acting in violation of the GC, not having a uniform or regular command structure, and so on) so that really isn't a big deal.
It is a crappy decision. Scalia lays a telling smack-down on it, just as one would expect.
I'd like to get a law degree from one of the diploma-mills Souter, et al got theirs from -- obviously there is no requirement to actually, you know, understand the law or anything at that school. And lawyers make the big $$$.
Posted by: The Atom Bomb of Loving Kindness at June 29, 2006 10:03 AM (MJbn9)
I dunno, maybe we are near a slippery slope before bombing runs by the military need to undergo a Fourth Amendement analysis and warrant signed by a judge.
And here I was thinking that the constitution made the president commander in chief, a power which included indefinate detention and tribunal powers of America's enemies.
Posted by: joeindc44 at June 29, 2006 10:10 AM (K0x/A)
Sometimes what looks like a setback is actually a gimmie.
Posted by: The Machine at June 29, 2006 10:13 AM (L/jMX)
Posted by: cat4amt at June 29, 2006 10:17 AM (3quZI)
To avoid any confusion, US soldiers should endeavor to kill everybody on the battlefield. Just kill 'em all. No Prisoners, No Problems.
Posted by: Barry at June 29, 2006 10:22 AM (kKjaJ)
Hmmm, I think we could find some room on the USS Lexington and the USS Yorktown (the carrier, not the AEGIS cruiser). Or, hey! the USS Maine is close by.
Sounds like a winner to me.
Posted by: at June 29, 2006 10:22 AM (MJbn9)
Posted by: Tushar D at June 29, 2006 10:50 AM (tyRhL)
You think that was not very nice? Then, cut their f##king head off!
Posted by: Leatherneck at June 29, 2006 10:59 AM (D2g/j)
We have terrorists in our custody right NOW, and instead of giving them the military tribunal or court-martial they deserve, the Democrats want to free these guys or give them conventional criminal trials - and post-Moussaoui, I'm sure a lot of Americans would not be satisfied with THAT solution. All the GOP has to do is remind the public of that fiasco, and then tell us that the Democrats want it to happen another two hundred times.
Posted by: Michael Andreyakovich at June 29, 2006 11:47 AM (9pkhB)
"The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65 may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began."
Seems like al-Qaeda members meet that standard. in all respects
Posted by: American Barbarian at June 29, 2006 12:53 PM (rl/jf)
Posted by: Drew at June 29, 2006 01:04 PM (Y2fNF)
Posted by: Kralizec at June 29, 2006 01:16 PM (m5x6c)
Posted by: Christopher Taylor at June 29, 2006 01:47 PM (Pwzb0)
To be clear I think the majority opinion is wrong in manifold ways on this case, but I also think there are ways within our system to deal with it. Lindsey Graham has the correct idea.
Posted by: American Barbarian at June 29, 2006 03:42 PM (rl/jf)
Yeah, I'm not going to hold my effin breath, thank you very much. They are going to bend over and take it like a non-viking.
Anyone that thinks this will play well for the Republicans has their head up their asses. Bush and everyone on down will lick the boots of the 5 justices on this one. Mark my words. How many times to the Republican leadership have to lay down before you get it. They aren't going to do shit over this. God, I'm depressed.
Posted by: Matt at June 29, 2006 04:32 PM (3bFaP)
Posted by: spurwing plover at June 29, 2006 05:50 PM (UdEnh)
Its a shame that the other three judges Scalia, Alito and Thomas are still primitive and barbaric warmongers who are lack any moral or ethical fiber in them.
Let us bring these men in front of a real court, try them as human beings, with the same right as we have if we were to commit murder so that the world can see that the United States truly promotes freedom and democracy. That we value all human being's rights and privilages just as much as we value our own.
It is most important that the world knows that us, you and I, the American people believe that we are not above any other human being no matter race, genre, religion and belief.
I firmly believe in this decision and I only hope that more decisions, that are moral and ethical, are reached. It is time that we lead the world and show that we are not at the same immoral and unethical level that these people who committed the horrendous acts of 9/11 were.
Let us stop being immature, barbaric like people and start evolving into true people of high character and integrity.
Long live our freedom! Long live the people of the world who value a more moral and ethical life. And long live our great United States of America!
Posted by: AlanB at June 29, 2006 08:09 PM (sprkd)
Not with fools like you around, it won't.
Posted by: jhc at June 29, 2006 08:35 PM (+lA9g)
That don't sound to American of you. Are you un-American?
Posted by: AlanB at June 29, 2006 08:45 PM (sprkd)
Posted by: Dave at June 30, 2006 02:05 AM (iXCtV)
Posted by: Paul Freedman at June 30, 2006 04:01 AM (LdaQG)
Posted by: SicSemperTyrannus at June 30, 2006 05:13 AM (JYeBJ)
Posted by: Reddish Jode at June 30, 2006 06:46 AM (KeOQp)
Posted by: Christopher Taylor at June 30, 2006 07:01 AM (Pwzb0)
If that were the case, then MSNBC would be in violation of the Geneva Convention just for having Olbermann on their network.
Posted by: wiserbud at June 30, 2006 07:05 AM (AQGeh)
People either believe in justice or they don't believe in justice. It isn't justice to label someone a terrorist guilty of heinous crimes without any proof. It isn't justice for the prosecution to make up the rules for a trial. It isn't justice to mistreat prisoners to obtain confessions.
If they are guilty of war crimes or common crimes, charge them and try them, fairly. Evaluate the others, carefully, and those that are a threat but not guilty of crimes, hold them until they aren't a threat.
If in fact all the potential prosecutions are based on tainted evidence, well then, we won't have any prosecutions, and the entire world will know why. Bush screwed up, completely, acting like a 10 year old on a rampage, and we will pay the price for a long time to come.
Posted by: searp at June 30, 2006 11:06 AM (hsrIx)
But surely he had some help from Dick Cheney's cock and/or John Bolton's moustache, right? I mean, he had to.
Posted by: Roy at June 30, 2006 11:27 AM (2XXia)
Some folks were released into custody in their own countries. In a few cases, they were working for the Taliban or whatever, but it was assumed that they'd been swept up by events and if released now wouldn't go on to hurt anybody.
Evaluate the others, carefully, and those that are a threat but not guilty of crimes, hold them until they aren't a threat.
Good advice. Which is why we're already doing exactly that.
Posted by: sandy burger at June 30, 2006 11:41 AM (K2rlS)
We didn't bring people to justice, we brought them to indefinite detention and interrogation, a very different thing. That we released people, a LOT of people, gives the lie to the notion that everyone held at Guantanamo is a despicable, dangerous terrorist. We made mistakes, mistakes that could have been mitigated or avoided if we'd had leadership that really understood the concept of justice. W likes the word, but what he really means is revenge.
Roy doesn't understand simile - "like a 10 year old" is an image, not meant in the literal sense. Roy, if you obsess about Cheney's cock or Bolton's mustache, you need to see a medical professional before you post again.
Posted by: searp at June 30, 2006 11:13 PM (hsrIx)
"The Seton Hall study also concludes that fewer than half of the Guantanamo detainees are accused of any hostile action against the United States, and that evidence of association with al-Qaeda or the Taliban is often laughably weak. An awful lot of these prisoners have simply been turned in for reward money or else done nothing worse than be conscripted into low-level positions in the Taliban."
This is justice?
Posted by: searp at June 30, 2006 11:25 PM (hsrIx)
Well, of course its Justice, not. Its a shame that so many people believe everything that this Administration says that they forget their common sense of things.
Everyone from "Christians", just because Bush says he is being guided by God (very scary), to ignorant parents who live in places where a terrorist wouldn't even think about striking who *think* these people in Gitmo are all bad guys and did something horrendous.
They support torture because they really don't understand it; many people here don't understand it yet yell and scream for it. Its like the idea of dropping nuclear bombs. They don't realize the worse part about it is the repercussions and how it'll probably begin a chain of events that leads to a larger war, possibly a third World War.
Our society cares more about "American Idol" then they do about the truely important things. To most, most here as well, its all a stage and a show. To be honest I highly doubt many people who post replies here, Redstate and other *Right* websites truely cared about those victims of 9/11.
I know I did. I woke up at around 11 or 12 noon and turned on the T.V. I found out that many people were killed, and just like New Orleans, I felt completely and utterly horrible inside. I remember this trembling sensation that ran down my body. I felt helpless because I wanted, but couldn't, help these people.
When I tried to enlist in the army I was told I could not because of a skin condition I have called psorisis. That made me feel even more helpless because I wanted revenge, like so many other people, and I supported going into Afghanistan.
But I woke up. The idea that people are being tortured, families are being massacred, sovereign countries being invaded and the threat of nuclear bombs really is starting to put more and more of a knot in my gut.
To think that the country of freedom, the world leader, the one that is suppose to have high moral and ethical standing is doing this. It is appalling. I love my country and its people and that just makes it even more gutwrenching.
It makes me question who we are and what are we really doing.
This war, which is costing us hundreds of billions, is causing the deaths of 50,000 Iraqi people, most of which are innocent and another 2 1/2 thousand American troops.
No WMD have been found. All links to Al Qaeda have been discredited or shown to be very weak, if any. Iraq is in a civil war and the rest of the war is starting to despise us more and more.
Our troops are thinned out. We are extremely vulnerable to attack here and in many other places. People just don't seem to realize how much this war is weakening us. And they are talking about supporting a war with Iran? That'd be a nail in our coffin, or least our way of life, and people just don't get this.
Posted by: AlanB at July 01, 2006 10:54 AM (v3nem)
Posted by: Bart at July 01, 2006 11:19 AM (0jNrd)
They'd be like, "What are we doing in Germany and Italy? The people who flew their planes into Pearl Harbor were "supposedly" from Japan."
Posted by: Bart beating a dead horse at July 01, 2006 11:48 AM (laOCl)
1. Jesus Christ never promoted violence and he certainly never promoted revenge. I'm 100% sure he would have been against torture.
2. Honestly, its not my place or your place to decide what happens to gays. I'm neither pro or anti on that subject because its none of my business how someone chooses their lifestyle and who they choose to marry. The idea of being gay makes me sick but I'm not ignorant either. I've had gay people hit on me before, to obsessively at times, and I didn't like it one bit. I told them off, not because they are gay, but because I'm not gay and they should look for someone else.
3. Defending terrorist? First and foremost, I don't defend the act of killing innocent people no matter the cause. Especially women and children. But I do feel that torture is just as hideous no matter who it is. Just because this is the United States of America doesn't mean that torture is right and justified. Justice is putting the terrorists on trial when they are captured with punishment of death upon conviction.
Hey Bart you should consider the idea of not breathing every word hate mongers like Ann Coultier spill. People like that make this whole thing out to be a war of Liberals vs. Conservatives. All it is to her is selling books and USING people like you.
I really do not care if a Republican or Democrat presents something. If I feel it is right or justified then I'm for it. For instance, I am against welfare. I think that it degrades our country. But I'm for Social Security for the elderly and the disabled; people who really do need the money.
You're either with the United States and its Constitution, or you're with the Bush Administration.
Posted by: AlanB at July 01, 2006 05:41 PM (TQgA4)
Posted by: False Choice at July 01, 2006 06:17 PM (JV5Qt)
Posted by: Bart at July 02, 2006 10:02 AM (vB/Ex)
Posted by: Karen Millen UK at May 27, 2012 09:34 PM (2iM6j)
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