Re: Re: Legal status of prisoners.

["Ian Murray" <seamus2001@xxxxxxxxx>]

----- Original Message -----
From: "Justin Schwartz" <jkschw@xxxxxxxxxxx>
To: <pen-l@xxxxxxxxxxxxxxxxxxx>
Sent: Saturday, January 12, 2002 3:18 PM
>Subject: [PEN-L:21332] Re: Legal status of prisoners.



>
>Are there any lawyers on Pen-L who know anything about
the term "unlawful
>combatants"?

I think it is something made up so that the prisoners
do not have to be
subject to the Geneva Convention.

>If they were taken prisoners in the war against
terrorism, how is it they
>are not prisoners of war? I guess it is because as
someone put it: Grammar
>is the first casualty of war and you really cannot
have a war against an
>abstract noun such as "terrorism". THe Bush spin
doctors make words up to
>mean whatever suits them it seems.

Quite.

>     Surely civil rights experts should be crying out
against what the US
>is
>doing. The Red Cross is going to be allowed to visit
but on US terms of
>course. What of family of these detainees, will they
ever be informed about
>the detainees? It seems that the US is now in
>the disappeared business whisking people off to deal
with as they please
>for
>the most part.
>

It's very scary. Did you hear Rumsfeld explain that
foreigners are not
entitled to constitutional rights? Legal nonsense, but
"little careI for the
law."

jks

============

The libs. are right there with 'em. A Harvard lawyer
uses the term so anti-humpty-dumptyism/anti-nominalism
is out!:

< http://www.prospect.org/print/V13/2/slaughter-a.html
>

Anne-Marie Slaughter is the J. Sinclair Armstrong
Professor of International, Foreign, and Comparative
Law at Harvard Law School and the president-elect of
the American Society of International Law.
slaughtr@xxxxxxxxxxxxxxx

[snip]
The Role of Military Tribunals

Military tribunals have been used historically to try
spies and saboteurs. They have provided rough
battlefield justice when no other form was practically
available. Trial by military tribunal is certainly
fairer than summary execution.

In Afghanistan we're actually on a battlefield.
Al-Qaeda members captured under such circumstances can
be tried by military tribunals if they are "unlawful
combatants" under the 1949 Geneva Conventions. The
convention governing prisoners of war defines unlawful
combatants as participants in an armed conflict who
abuse their civilian status to gain military advantage:
those who do not carry arms openly and do not carry a
"fixed distinctive sign" such as a uniform or other
insignia that would identify them as soldiers.
Terrorists appear to fall into this category almost by
definition, as they depend on concealing their identity
before their attacks.

If a prisoner is deemed an unlawful combatant, he or
she is entitled only to a conviction pronounced by an
impartial and regularly constituted court respecting
the generally accepted principles of regular judicial
procedures. This is a relatively low standard of due
process, which military tribunals would almost
certainly meet. But out of respect for our own values
and traditions as well as public diplomacy, we should
at least ensure that the rules governing such
proceedings bring them up to minimum international
standards of due process: a presumption of innocence,
the right to choose counsel (although it may be from a
list provided by the tribunal), a speedy trial, the
right to confront and rebut adverse evidence publicly,
and the right of appeal (which could be to a higher
military tribunal).

Ordinary prisoners of war, by contrast, may also be
tried for war crimes but are entitled to the same
standard of process that would be applied to our own
soldiers: that is, a full courtmartial under the
Uniform Code of Military Justice. But here's the catch:
How do we distinguish between lawful and unlawful
combatants in the first place? Until such a
determination is made, all prisoners are presumptively
entitled to POW status. Membership in al-Qaeda, per se,
suggests unlawful combatant status, since a lawful
combatant must be a member of an organization capable
of complying with the laws of war. But it's not clear
who gets to make this determination--a military
tribunal or a full court-martial?

In addition to these legal complexities, military
tribunals are likely to present a number of unforeseen
political headaches. Dozens of al-Qaeda members are
being detained in Afghanistan; hundreds more could
follow in Pakistan as well. Once we establish
tribunals, do we have to try them all? It is one thing
to detain combatants until after hostilities are over;
but once tribunals are in place and in use against some
defendants, where do we stop? The Bush administration
emphatically does not want to conduct mass trials; the
logistical difficulties are enormous and there would be
no faster way to turn many of our new Afghan allies
into enemies. Identifying a few notable leaders and
shipping them back to the United States for trial in
ordinary federal court may look better and better.

Finally, other nations will be watching how we
interpret and apply the Geneva Conventions. As the
world's leading military power, the United States has
been a strong supporter of the 1949 Conventions, on the
grounds that widespread adherence to their provisions
is more likely to benefit our soldiers captured abroad
than to burden us in treating those we have captured.
Deviations from those provisions now, when our soldiers
are in the field in substantial numbers, are likely to
come back to haunt us.
[snip]