Death camp at Guantanamo?

Furthermore, the detention of illegal enemy combatants in Guantanamo has been sustained -- both the 9th Circuit and the D.C. Circuit courts have dismissed legal challenges. The Guantanamo Bay detainees have not been accorded prisoner of war status because they are illegal enemy combatants who do not fight under Geneva Convention rules that would merit such treatment. Even lawful POWs have no right to lawyers to challenge their military detention under international law. There has never been any time in our entire history when any President has had a policy of providing lawyers to illegal enemy combatants or even legal POWs. The article displays a fundamental misunderstanding of military detention that falls under the President's Article II war powers, as opposed to our judiciary system which is under Article III of the Constitution. Fortunately, the courts -- largely ignored in this piece supposedly exploring the "legal revolution" -- are more familiar with this historical record.

It seems people are unaware of what is termed "conflict of interest." c.i.

You know, if fourteen angry countries got together, decided the American administration was highly dangerous to the world, invaded America, and encountered average Americans firing at them, those Americans could be detained and executed without a public, civil trial because they were enemy combatants not wearing uniforms. Or have I missed something here?

I do wonder what would happen if Iraqi forces indefinitely imprisoned
600 American combatants because we didn't conform to their rules
about shooting guns during wartime.

DEFINITION OF A LEGAL COMBATANT
The Third Convention lays down the fundamental conditions for eligibility for
prisoner of war status. These conditions are met, on the whole, by soldiers serving in
the army (regular and reserve) or in well-ordered militia forces (e.g. the SLA or the
State National Guards in the United States). Soldiers in the regular army, then,
automatically enjoy the protection imparted to a legal combatant. Nevertheless, if the
soldier does not fulfill one of the fundamental conditions - he could be denied the
protection of a legal combatant.
These are the conditions:

• The combatants must be led by a commander and be part of an
organization with a chain of command: The purpose of this provision is to
deny the status of prisoners of war to individuals acting on their own. The law
does not recognize private wars between individuals. It is incumbent on them
to be part of a hierarchical framework that includes discipline and supervision
by higher echelons over what is being done by the forces in the field (so that,
for instance, there will be an address to turn to with regard to violations of the
laws of war or prisoner exchanges).

• The combatants must bear a fixed recognizable distinctive sign that can
be recognized from afar: This is perhaps the most important condition, which
physically distinguishes between combatants and those who are not. The sign
must be a means of identification (e.g. a uniform or identification hat), and, in
addition, the sign must fixed (one cannot establish a new sign every day). A
regular army uniform is not mandatory, but apparel must be uniform and
distinct from civilian clothes.
Laws of War in the Battlefield 55
Of course this provision does not mean carrying identification marks which
could imperil those bearing them (such as a hat that is luminescent at night so
as to be recognized from afar), and also does not preclude the use of
camouflage that takes advantage of the conditions of the terrain (hiding among
the trees and bushes). The concealment prohibited by the laws of war does not
apply to the features of natural landscape but to the human landscape, meaning
an innocent population that is not involved in the war. It follows then that
warfare activity in civilian clothes is forbidden. Regular army personnel who
do not go around in uniform and do not carry a fixed identification sign will
not be considered legal combatants, will not be entitled to prisoner-of-war
status and may be brought to trial for their deeds.
It is important to distinguish between certain cases of units comprising
Arab-impersonating soldiers. Such units work vis-a-vis the civilian population
in territories defined within the status of "belligerent occupation" and not as "a
battlefield". Anyway, the mission is also defined as the capture and detention
of wanted persons and not as warfare against them as is waged against enemy
soldiers. Therefore, the use of civilian clothes for detention purposes is
allowed in the same way that the police employs plainclothesmen.
Combatants (in the battlefield) who take off their uniform and don civilian
clothing do not thereby commit a war crime (even though they risk losing their
prisoner of war status). On the other hand, improper use of enemy uniforms is
a violation of the laws of war.

• The combatants must bear arms openly: This provision is meant to prevent
the concealment of weapons in a way that is liable to surprise the enemy (e.g. a
soldier in uniform serving as a suicide combatant). It is evident that there is
nothing in this provision that forbids carrying a pistol in a special pouch or
carrying grenades in a bag.

• It is incumbent on combatants to behave in compliance with the rules and
customs of war: This is the most basic of conditions. It is evident that in order
to benefit from the protection of the laws of war, the combatants must be
prepared to grant this same protection to the adversary's soldiers. A soldier
attacking innocent civilians or harming prisoners will not be entitled later on to
the protection imparted to prisoners of war and to immunity for these deeds,
Laws of War in the Battlefield 56
even if he murdered the civilians wearing a uniform, openly bearing arms and
as part of a hierarchical organization.
In order to check whether this condition is met, there is a double-test for
compliance with the laws of war both at the group level and personal level: a
combatant who belongs to an organization that as a rule does not honor the
laws of war (a terrorist organization, for example) will not be accorded
protection even if he himself did not violate the laws of war. This is one of the
main reasons why Israel refused to grant prisoner-of-war status to captured
terrorists even before committing a terrorist act. Subsequently, one must check
whether the combatant did not himself violate the laws of war. Thus, a soldier
serving in a regular army that in principle upholds the laws of war, but who
himself breached the laws of war (attacked civilians, for instance) will not be
awarded protection because of his deed.

GENERAL PROVISIONS
ARTICLE 1
The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

ARTICLE 2
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

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.

ARTICLE 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

ARTICLE 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

ARTICLE 5
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.