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The US reverses itself on treatment of Detainees
Posted by: McQ on Tuesday, July 11, 2006

Politically this is a smart move:
The White House confirmed on Tuesday that the Pentagon had decided, in a major policy shift, that all detainees held in US military custody around the world are entitled to protection under the Geneva Conventions.

The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
It also paves the way for designation of detainees as POWs which allows the administration to keep them almost indefinitely (or until the "war" is over). In the big scheme of things, that seems the most important point.
The court also suggested that the administration work with Congress to reach a solution that would address the problems, including the introduction of evidence.
It not only suggested it, it put the onus on Congress to do something about firming all of this up legally. But the Pentagon, in a preemptive attack, seems to have taken the bit and run with it. The argument about whether or not they should have Geneva Convention protections is essentially over:
That question now appears moot in light of the Pentagon move. Congress could conceivably still rewrite US law to eliminate the Geneva protections, but such a move would generate huge international criticism.

“This memo was a prudent and responsible thing to do,” said a former Bush administration official with knowledge of the memo.

“Humane treatment is at the centre of the Pentagon’s directives and procedures, but the court’s ruling expanded previous understanding of the applicability of Common Article 3 so this memo was an important next step. It is now up to Congress to provide statutory clarity if possible.”
It also essentially removes as a political issue, something on which I'm sure Democrats felt they would be able to capitalize. Certainly Congress can still write legislation which provides "statuatory clarity" if it so desires, but their thunder has been stolen. It will be interesting to see how this is all spun.
 
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If the GCs are applied, that means that military tribunals may be called to determine whether detainees are lawful or unlawful combatants, as defined by the GCs. SCOTUS did not block this.
 
Written By: chsw10605
URL: http://
The memo changes nothing. It merely asserts that, commissions aside, existing Pentagon orders and practice are *already* compliant with Common Article 3.

See Marty Lederman for why that is bulls—-.
 
Written By: Anderson
URL: http://andersonblog.blogspot.com
Not surprising, but good to see. I’d rather think that it’s a world-image political move rather than a "steal the Democrats’ thunder" kind of deal, however.
 
Written By: TWB
URL: http://www.taylorwbuley.com
I’d rather think that it’s a world-image political move rather than a "steal the Democrats’ thunder" kind of deal, however.
It isn’t an "either/or", it is both of those things (for international and domestic consumption).
 
Written By: McQ
URL: http://www.qando.net/blog
This has the effect of saying the enemy is free to mistreat our troops, because they have no fear of us doing so in kind.

This is all find and dandy when we’re fighting someone we can overwhelm inspite of the demoralizing effects of the mistreatment of our troops.

What happens when we’re in a conflict where victory (or at least dominance) is not so certain and demoralizing our troops may be the difference between victory and failure.
 
Written By: jpm100
URL: http://
Well, if Article 3 applies, then it seems that the other rights normally accorded POWs will follow. The right to organize in camp, with the command and control structure under the senior enemy commander held. The right to recieve and send letters that do not pass on tactical information - but "freedom" to expouse religious beliefs and attendent "philosophy".

This could all be rather sweet for the Jihadis.

Meanwhile we will pick up the pieces of our soldiers who are unlucky enough to be captured by our fellow Geneva Convention "rights-holders".

I got to say that right about now would be a good time for Binnie to seek out and surrender to the US troops, as long as he has had time to finish what will be one of the world’s best-selling books ever. "My Holy Struggle: How Jihad Humbled the Infidel Puppets of The Zionist Entity." With a promise of a sequel: "How God’s Grace Protected Me From the Greatest Manhunt In Human History. My Travels and Sanctuary Amongst the Believers, And Who Remains to Be Slain."

As a POW, Binnie should be free to get the best New York Lawyers and Literary Agents Working on his Books, correspond with them, and set up some websites publishing letters to and from the Great Man. And get daily visits from his New York ACLU and academia 80 person strong defense team. Family visits to Binnie are practical, and may fall into US ’Humane treatment’ standards for prisoners. With 37 brothers and sisters, a Mother, 4-7 wives, and 22-30 children [I’m sure Binnnie has had observant women lining up for the glory of breeding Jihadis by Islam’s most famous fighter].

I like this scenario for the splendid absurdity of it all, much of which is coming true thanks to the prodigious efforts of the "enemy Rights" Left and libertarians.

What sort of new fun could await????

1. Bin Laden’s website - done just like Mumia’s or Tookie’s - maintained by loyal followers posting every new thought of message from the Great One - becomes the world’s most heavily visited personal website. "Blogging with Binnie" becomes so popular that and entire Army brigade is assigned nothing other than handling Binnie’s fan mail - and forwarding letters to be answered by Binnie’s desgnated family members, ACLU Counsel, and spiritual advisors of Binnie is too busy with other important matters.

2. Binnie’s book royalties, following other prison authors, might be garnished in the USA...but the taxpayer has already made the 9/11 Victim Families into wealthy multimillionaires...so his US royalties might be subject to court fights saying enough for families already richer than any other "victim families in history" and that his royalties should best go to the deserving...the victims of racism and Crusader-Zionist oppression. Outside the US, his royalties and movie rights could legally go to Muslim charities.

3. A trial in the US Civil Court system or a UCMJ trial that "enemy rights advocates" favor would be very interesting. The ACLU and academia can make a plausible case that the Pentagon, USS Cole, Embassies, Congress, and what perhaps once was the World’s most important financial district were legitimate war targets. Any key witnesses stating other Binnie intentions were "tooooorrrrrtuurrred!!" so their testimony can be thrown out. And that Binnie did formally declare war in his 1996 and 1998 Fatwas. And any lawyers and jurists in the coveted ACLU "Civilian Court Deluxe" process would be pretty nervous about Al Qaeda knowing their names and at worst only given POW status if they are killed as penalty for convicting Binnie. I like Binnie’s chances in the International Criminal Court or the Sharia Court the Lefties are pushing even more.


Yep, I actually hope for some of this so the absurdity of the "enemy rights lovers" and the Left is highlighted even more.
 
Written By: C. Ford
URL: http://
Well, if Article 3 applies, then it seems that the other rights normally accorded POWs will follow.

No. You’re wrong. And there’s very little excuse for anyone to be that ignorant, considering what we’ve all had the chance to learn about Common Article 3 since Hamdan.

CA3 specifically does not apply to POW’s. Those are covered by a whole different part of Geneva.

All that CA3 guarantees is a bedrock level of human rights. Which, sadly, some Americans seem to have a problem with.



 
Written By: Anderson
URL: http://andersonblog.blogspot.com
And there’s very little excuse for anyone to be that ignorant
I guess in your specific case, you didn’t even bother to read the first sentence of Article 3.
 
Written By: Mark A. Flacy
URL: http://
CA3 specifically does not apply to POW’s. Those are covered by a whole different part of Geneva.
He didn’t say it did. He said given 3 it is not at all improbable to believe that "the other rights normally accorded POWs will follow."
 
Written By: McQ
URL: http://www.qando.net/blog
He didn’t say it did. He said given 3 it is not at all improbable to believe that "the other rights normally accorded POWs will follow."

Nooo ... because CA3 and the POW provisions are mutually exclusive. The whole point of CA3 is to cover non-POW persons.

It’s like saying, "now that blacks have equal rights, I guess they’ll be made the legal superiors of whites." "Equal" and "superior" are incompatible concepts.
 
Written By: Anderson
URL: http://andersonblog.blogspot.com
Anderson’s unwarranted snark aside, he’s right.

The Third Convention (POWs) applies in conflicts falling under Common Article 2 which triggers the other substantive articles of Conv. (basically, all the goofy stuff POWs get like officers not being required to do manual labor)

CA3 was designed to cover non-CA2 conflicts (broadly speaking: civil wars and conflicts not BETWEEN high contracting parties).

If you’re saying CA3 applies, that means that CA2 does NOT apply and hence, the specific POW protections aren’t triggered.

That being said, the applicability of CA3 to detainees doesn’t really mean anything insofar as their treatment is concerned. What was prohibited will remain prohibited as that was already the policy.

The major change is what criminal procedures detainees are entitled to...but that’s not borne from the POW protections.

 
Written By: Army Lawyer
URL: http://armylawyer.blogsome.com
Jeff Babbin wrote - The new memorandum about the status of terrorist detainees held at Guantanamo Bay, Cuba and elsewhere - signed by Deputy Defense Secretary Gordon England on Friday — is being widely misreported. The memo, which is reproduced in full below, doesn’t say that the terrorists are now POWs under the Geneva Conventions or that they will be afforded the full rights and protections of the Geneva Conventions.
What is overlooked is Article 3 puts all people in a zone of conflict not of an international character - as either civilians, or legitimate soldier-combatants -and says that prosecution of crime must be done by courts following the highest standards. It was written for local conflicts, with indigenous irregular militias and insurgents in mind - not protecting teams of foreign terrorists or commandos infiltrating a country and obey no portion of Geneva Conventions.

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ’hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
What the Court did was legitimate Al Qaeda and other Jihadis attacking foreign nations by saying they were not unlawful combatants as discussed in the 4th Convention (non-privileged combatants) but magically, just locals involved in a non-international conflict affecting N America, Europe, Russia, the ME, the Subcontinent, and East Asia. The activists in Hamdan did this inexplicable feat of logic primarily to spare looking at Al Qaeda from the criteria in Article 4 of the 3rd Convention that DO APPLY STRICT CRITERIA to distinguish between a legitimate POW and an unlawful combatant (non-privileged enemy forces). Because the Jihadis would fail Article IV and the liberals on the Court would not be able to get in on war decisions that way.

And Article 4 of the 4th Geneva Convention also weighs against terrorists:
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.
Many nations have agreed that THEIR nationals, if engaged in terrorist acts against a foreign country they have diplomatic relations with and are of course not in a State of war with - are NOT in "protected status" in keeping with Article 4 of the 4th Convention. The alternative of course is to say they either support the terrorists as a signatory nation hostile to the US, or wish to see terrorists as simple criminals - not unauthorized, unlawful combatants of the country the terrorist has citizenship in.

And yes, Anderson, many lawsuits are underway - old ones seeking sanctuary for terrorists under the 4th Geneva Convention and now new ones embracing SCOTUS’s mysterious decision that the war with radical Islamists are a purely local conflict - and various activist NGOs of the Left are campaigning for full POW rights for Jihadis.

All too many people have become ensnared in the "legalize" of a particular point of law thay have completely forgotten the overarching purposes of the Conventions, laid out neatly by the IRC before they became fixated on illegal combatant "rights" rather than strongly advocating their harsh punishment for "grave breaches":
The Geneva Conventions and their Additional Protocols are part of international humanitarian law – a whole system of legal safeguards that cover the way wars may be fought and the protection of individuals.


They specifically protect people who do not take part in the fighting (civilians, medics, chaplains, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).


The Conventions and their Protocols call for measures to be taken to prevent (or put an end to) what are known as "grave breaches"; those responsible for breaches must be punished.
The Jihadis do not follow rules of war made by man, but rules of Allah, as they understand it. Civilians can be targeted and killed - indeed - deliberately and the more the better. Enemy soldiers are never spared by Islamofascists. And all too many people are more interested in expanding the "precious enemy rights" they believe the killers merit, than in vigorously punishing them for the "grave breaches" that may encourage more violations of Geneva and more deliberate mass slaughter of innocents - they do as the core of their war-fighting and Jihad philosophy.


 
Written By: C. Ford
URL: http://
Perhaps better treatment of prisoners will result in a few more people surrendering (as in Gulf War I) and a few fewer fighting to the death (as in Gulf War II).

I certainly don’t think there is any evidence that our actions at Abu Ghraib detered anyone from joining the fight or hurting our people. The effect may well have been the exact opposite.

These guys should have been treated like POWs since day one of the war. We certainly were able to fight wwii with these rules. Incalculable damage has been done to us in the meanwhile, but I suppose its better late than never.


 
Written By: cindyb
URL: http://
Cindyb - Perhaps better treatment of prisoners will result in a few more people surrendering (as in Gulf War I) and a few fewer fighting to the death (as in Gulf War II).
Apples and oranges. Gulf War, the combatants were regular Iraqi Army that both took prisoners obeyed other rules of Geneva - and in turn surrendered expecting prisoner rights. In the Iraq War, the insurgents are not regular military. They target and kill civilians. They take no prisoners, except to film some motivating head choppings. They do hope we will take them prisoner.
Cindyb - certainly don’t think there is any evidence that our actions at Abu Ghraib detered anyone from joining the fight or hurting our people. The effect may well have been the exact opposite.


What we did at Abu Ghraib is largely irrelevant to the Jihadi decision to target and kill us, infidel civilians globally, or the heretics of the Satanic deviant Shiite Faith. It was a nice little piece of propaganda CBS and the NYTimes handed them. No more. No less. It may have motivated a few fence sitters previously cheering the Death squads to actually join one, but hardly touched the core motivation of Islamofascism.
Cindyb - These guys should have been treated like POWs since day one of the war. We certainly were able to fight wwii with these rules. Incalculable damage has been done to us in the meanwhile, but I suppose its better late than never.
Every regular Iraqi military person was treated as a POW from day 1. Terrorists and Fedayeen were not. In WWII, similar unlawful combatants were not treated as POWs. They were summarily executed on the spot on orders of a superior US officer, or executed after a brief tribunal. And in WWII and Korea, once we found the other side was taking no prisoners, as happened on several battles in the Pacific Theater, we didn’t accept surrender either.

All the acts of "incalculable damage" in the last decade - Beslan, the death squads, 9/11, the Paris suburbs burning, a million Christian and animists butchered in Sudan, 1/3rd the Christian population of East Timor slaughtered (200,000), the Bali bombings, several thousand Hindis murdered, the campaign of mass slaughter against apostate Shiites either predate the Left’s massive moaning about Abu Ghraib or have nothing to do with killing Americans.

 
Written By: C. Ford
URL: http://
There are more terrorist today than there were on 911. We have fewer allies. This is partially due to our torture policy.

The Italians have issued arrest warrents for CIA officers and arrested its own agents who cooperated with us. They have left the coalition at least in part because of our policy on torture.

Had we acted like the good guys, rather than trying to make sadem look like the good old days we might be a little closer to having this thing up. As it is we have done nothing but lose ground for the past six years.

Anybody want to invest their own money in Iraq? It things are going so well, why not?




 
Written By: cindyb
URL: http://

 
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