The decision to deny Al Quada and Taliban detainees POW protections was the proper interpretation of the Geneva Conventions. The US position on this regard has been in place since the 1980's.
So, you say, but it is not. What about the Iraqi detainees and the two Americans? What about torture? "The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the interpretation of "unlawful combatants" by the George W. Bush administration. The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law," - wikipedia
[/QUOTE]The battle started under the Reagan administration when the issue of the Protocol I amendments to the Geneva Convention came up.
The POW protections in the Geneva Conventions were designed to give soldiers an incentive to fight in ways that minimized suffering among combatants and civilians alike. If a soldier wears a uniform and complies with the basic laws of war, he would be treated well if caught. But if (as terrorists do) he wears ordinary clothes and hides among civilians, he endangers the innocent and acts treacherously toward rival soldiers, and thus receives no rights under the Geneva Convention.
In the 1970's, so-called national liberation movements, such as the PLO, tried to alter the understanding of the laws in Protocol I by extending POW and other "combatant" protections to all fighters (such as members of the PLO) who hid among civilians.
This effort dovetailed with the agenda of the nascent human rights movement and groups such as the Red Cross. They saw this as an opportunity to to import more demanding human rights standards into the laws of war by rejecting Geneva's traditional reciprocity requirements by ensuring that there were "no gaps" in the basic protections provided to even the most vicious and law defying combatants. The United States refused to ratify Protocol I and therefore it never became part of United States law.
When the Bush administration acted in 2002 to deny these "combatants" legal protections under the Geneva Conventions he was acting in step with this long held US position that these type fighters should be denied these legal protections. As Will Taft said, "The lawyers all agree that Al Quada and Taliban fighters are presumptively not POW's."
The problem came about because in 2001 almost all of the United States European allies had ratified Protocol I and viewed the US rejection of it as a rejection of International Law (incorrectly), and through the same lens of the "de-signing" of the ICC treaty, as well as the failure to ratify the Kyoto Protocol (which was a good move by the US), and the withdrawal from the ABM treaty with Russia as a "cowboy" like attitude that the US had taken which would go against their international law norms.
Legally, their views were incorrect, as the United States had never adhered to this Protocol of the Geneva Conventions and therefore was not bound in any manner by it. Their disagreements came mostly in the form of customary law arguments which are ruled void if a US law is in place.[/QUOTE]
The point you are making is moot. There has already been a precedent established that says "There is no intermediate status; nobody in enemy hands can be outside the law." That means all peoples held by enemy governments must come under the Geneva Conventions. Whether or not we have ratified Protocol I, we signed it.
[/QUOTE]This also followed the legal precedent set by the Clinton White House when he held over 40,000 Cuban "boat people" on the island so that they would not be able to request the political asylum as they would be able to if they were on US soil. Clinton also created the rendition programs and first got the legal order that the US was in an "armed conflict" with Al Quada in 1998 to avoid the ban on murders and assassinations should they find Bin Laden.[/QUOTE]
Another moot point. We were not considered at war with Cuba. All of these illustrations come under different laws.
[/QUOTE]Bush's decision to hold prisoners in this facility had clear legal precedent and was no by means against the law or even controversial within all branches of the administration. Only now through the eyes of European international law (that the US never ratified or ascribed to) we are being forced to grant these people legal rights, which is most certainly ridiculous.[/QUOTE]
It is a matter of opinion whether or not you think it is ridiculous. Bush cannot circumvent the Geneva Convention or any law including the Constitution just because you and he say so. BTW, there is no such thing as European International law, it is either International law or it is not.
[/QUOTE]As for the US constitution, I say again, Bush was on clear legal footing backed by OLC decision, you can argue it all you want, but you are not going to win in court against that.[/QUOTE]
It has already been won in court, that is why Mukasey is asking for a declaration of war.
[/QUOTE]If you want to call waterboarding toruture, but legally it is not. So again, what law was broken? You clearly have no clue how FISA warrents worked before so I will enlighten you. Before all this came to light, people got FISA warrants after they already done the wiretaps. To get one all you had to do was basically say we need one, and you had it. Bush streamlined the process, not break any laws, and if he did, then they were broken long before he came into office. [/QUOTE]
Yes, use of water is torture whether you call it waterboarding or not.
http://en.wikipedia.org/wiki/Water_torture
[/QUOTE]Rendition started under Clinton, so I'd like to see you blame Bush for that one too. [/QUOTE]
It is immaterial what Clinton did or not do, the subject is Bush and his current illegal activities you seem to want to deny.
[/QUOTE]Let's see. Hamdi was picked up in Afghanistan fighting the Americans. That is treason and forfeits your citizenship rights. [/QUOTE]
As an American citizen, he has the right to a trial by jury guaranteed by the Constitution of the US. He has not committed treason until he has been tried and convicted by his peers. Sorry, but same old denial and argument. It sounds like you would hack up our Constitution.
[/QUOTE]Padilla is now a convicted terrorist in a civilian court, I am not sure what your beef is with that. [/QUOTE]
A moot point. He was first denied his rights and held against his will without due process for 18 months. You said it wouldn't happen here in America. It has. It matters not that he eventually was tried and convicted. The point is and was these tyrants are taking away our Constitutional rights. End of story.
[/QUOTE]I think it is very relevant when the SC decides to legislate from the bench, which is exactly what they are doing in this case, and which they have no express authority to do.[/QUOTE]
That is just your opinion. I think they were doing their job of checks and balances interpreting the Constitution of the US.
