old europe wrote:
I don't see the mess. The administration considers them to be unlawful combatants (with some justification).
And that's the mess.
The term 'unlawful combatant' doesn't seem to be a legal term.
To me, it seems that 'unlawful combatant' is merely a PR term, coined by the Bush administration in order to be able to refuse detainees the protection of Geneva Convention governing treatment of prisoners in wartime as well as any other rights under national or international law.
Again, I might be wrong, and you might be able to link to the legal definition of what an 'unlawful combatant' actually is. I doubt it, though.
An unlawful combatant is any combatant who does not meet the standards laid out in Article 4 of the Third Geneva Convention of 1949:
Link to Article 4: http://www.icrc.org/ihl.nsf/COM/375-590007
Here is what US military law has to say about them:
80. Individuals Not of Armed Forces Who Engage in Hostilities
Persons, such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the conditions prescribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), are, when captured by the injured party, not entitled to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment.
81. Individuals Not of Armed Forces Who Commit Hostile Acts
Persons who, without having complied with the conditions prescribed by the laws of war for recognition as belligerents (see GPW, art. 4; par. 61 herein), commit hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may be tried and sentenced to execution or imprisonment. Such acts include, but are not limited to, sabotage, destruction of communications facilities, intentional misleading of troops by guides, liberation of prisoners of war, and other acts not falling within Articles 104 and 106 of the Uniform Code of Military Justice and Article 29 of the Hague Regulations.
82. Penalties for the Foregoing
Persons in the foregoing categories who have attempted, committed, or conspired to commit hostile or belligerent acts are subject to the extreme penalty of death because of the danger inherent in their conduct. Lesser penalties may, however, be imposed.
Here is what the Supreme Court had to say about them in 1942:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 8 The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Here is an interesting article about them from a military lawyer in 1959:
Here is a discussion of their rights by the Red Cross (though it focuses for the most part on wars between two states and not between a state and a non-state actor):
This Wikipedia article on them is pretty good (at least as of when I am posting this):
I think the last couple of pages is very instructive, as we now have posters that agree with the Supreme Court decision arguing over what will happen now and a whole host of very basic questions. And this will continue with the lawyers and courts now that the door has been opened, and carried from ridiculous to bazaar.
I concluded long ago, as the administration did, because of expert legal advice within the administration that I believe was very accurate, that opening the door to these people to our courts was opening a Pandora's box, and that is what is happening now. The basic fact is that you cannot fight a war in the courts and be successful. Clinton tried to do it and 911 resulted. Bush is absolutely correct. With this Supreme Court decision, we not only cannot hold and interrogate these people as prisoners of a war in efforts to gain information and save lives in the fight agains terrorist networks as we have done so far, but now we encumber our own criminal justice system with these people. It is total insanity. It seems the left and Democrats have a death wish or something?
We have even had McCain calling for closing Gitmo, which is insanity. Where do we put these people, in the federal prison system, stateside? That is not only unwise, but unfeasible for alot of reasons.
We have a group of people that hated George Bush so vehemently and wanted their power back so bad that they would spin any issue into the most ridiculous lengths to achieve their end. Well now that the Supreme Court has ruled, where does it go from here and how foolish will this become? Who knows?
With this Supreme Court decision, we not only cannot hold and interrogate these people as prisoners of a war in efforts to gain information and save lives in the fight agains terrorist networks as we have done so far,
The Supreme Court decision does not prevent us from doing that. It just lets the courts hold hearings in order to verify that the detainees really were enemy fighters and not an innocent civilian who was just in the wrong place at the wrong time.
We have even had McCain calling for closing Gitmo, which is insanity. Where do we put these people, in the federal prison system, stateside?
If we close Guantanamo, the POWs will almost certainly be moved to the maximum security military prison at Leavenworth.
(Not the same facility as the famed federal civilian prison, but is in the same town.)