Legal status of prisoners.

["Charles Brown" <CharlesB@xxxxxxxxxxxxxxxxxxxxx>]

Legal status of prisoners.
by Ian Murray
13 January 2002 00:03 UTC



CB: I agree that the Bush military tribunal faces the legal dilemma mentioned by George Fletcher .. I believe I suggested it in earlier posts.  I had tried to get at some of these issues with this old post:

> > >
 It's a war.
by Charles Brown
26 November 2001 15:05 UTC  < < <
Thread Index
> > >

It's a war.

What's a war ?

Is it politics by other means, other violent means ?

Does the Geneva Convention apply ?

" May " you shoot prisoners in secret ?

Do the Nuremberg principles apply ?

Does the UN Charter and Conventions apply ?

Do the lessons of WWII and WWI and The Civil War etc, etc.  having a
bearing or has history ended along with the market ?

Is the Constitution suspended in its entirety when a war is declared ?

Is the Constitution suspended one iota when a war is declared or, what is
habeas corpus and other gnomes and queries ?

Has Congress declared a war pursuant to the Constitution ?

Does war mean you can do anything you want or does due process and especially
criminal procedure, trial by jury, right to be represented by counsel, right to
know the charges against you, presumption of innocence,  persist in effect EVEN
IF IT IS A GODDAMN WAR ?

Is "it's a war" a joker phrase that allows dictatorship of whoever controls the
military in the United States of America .

(That's a rhetorical question )

What's peace ?


clip-

War and the Constitution
George P. Fletcher




The Supreme Court first used the term in 1942 in Ex
parte Quirin to solve a particular problem that arose
when eight German spies landed in civilian clothes on
the beaches of Long Island. The FBI arrested them
before they executed any of their planned acts of
sabotage. President Franklin D. Roosevelt was resolved
to prosecute them for something, and it turned out that
there was a suitable law on the books -- a provision of
the U.S. Code prohibiting spying in wartime near or
around American military installations. That statute
required trial by either court-martial or military
tribunal and imposed an automatic penalty of death.
Roosevelt quickly established the military tribunal
that the statute authorized, but the constitutional
dilemma remained. To see it, we have to concentrate on
one horn at a time.

The first problem was that these spies were members of
the German army. We were at war with Germany and
therefore the eight captives were arguably just like
soldiers who might have crossed the Canadian border in
tanks. And if they were combatants, then by the rules
of international law we were not entitled to try them
for acts committed in the pursuit of legitimate aims of
war. As Chief Justice Harlan Fiske Stone wrote for the
Supreme Court in Quirin: "Lawful combatants are subject
[only] to capture and detention as prisoners of war by
opposing military forces." The reason for this rule
lies in the general understanding that a soldier is
simply a servant of the state. He does not do anything
in his own name. He cannot be held personally liable
for the ravages of war.

Now, admittedly, there are various ways around the
rule. One is to deny that the military engagement is a
war and call it instead some kind of police action. But
the danger of trying too hard to deny the combatant
status of those engaged in military battle is that we
then encounter the second horn of the dilemma: If these
are merely criminals who have committed crimes against
the United States, they must be tried in a federal
district court. That is the holding in the 1866
decision Milligan. In fact, it seems to be the tack
taken by Harvard University law professor Anne-Marie
Slaughter, who argued against Bush's tribunals in The
New York Times, saying that al-Qaeda members fighting
in Afghanistan are really just "common criminals" and
shouldn't be dignified with the status of combatants.