JMOHR on the Legal Status of Enemy Combatants
Hoisted from comments just like DeLong does…
Reader JMOHR describes his background thus:
…juris doctor from Indiana University. I did assist a professor for several years in researching and writing a book on the history of Military Justice in the United States. I was a judge advocate for five years in the active military and an additional five years in the reserves. I have been trained specifically in the Law of War. It was one of my duties to train active duty and reserve officers in the Law of War.
He goes on to state:
First, you have to understand the meaning of the term POW. A simple definition that has been observed through prior wars states:
The captured service member must have conducted operations according to the laws and customs of war: be part of a chain of command and wear a uniform and bear arms openly.
Article 2 makes it clear that we, as a party to the convention are bound by its requirements even though our enemy has not become a signatory:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Afghanistan was so bound. Taliban and associated AQ fighters would also be covered.
FA bases his argument that POW’s may be detained for the duration of the conflict further means that other requirements of the Convention apply that are clearly being violated by the United States. Aggressive interrogation to produce confessions which the US asserts can be used to convict detainees for terrorist activities would be prohibited:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
Indeed, the conventions deal specifically with coerced confessions:
No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.
Additionally, POW status provides that the detainee would have the same rights as a US military member:
A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.
Another issue arises with detaining and trying persons for merely being associated with a “terrorist” organization:
Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Look, FA is an idiot. He cannot call for the detention of the GTMO detainees for an indefinite basis and deny them the kinds of protections afforded by the conventions.
FA – civilians accused of crimes fall under a separate convention. The rights of a power to detain such individuals are greatly restricted from those that are permitted for POW’s. We will probably end up in an extended discussion of the use of domestic law and courts for those crimes. I tend to agree with Professor Jinks that no person falls outside of the protection of the conventions.
Oh, the right to habeus corpus is not restricted to US citizens. One case addressed the application of the doctrine to persons detained outside of the United States after WWII. The court based its decision to deny habeus on the fact that those seeking relief could have gone to the courts of the country in which they were detained. I have some real questions as to how possible it would have been. However, the Cuban government exercises no jurisdiction over GTMO.