What Now?

by Geoffrey Corn

I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review of military issues inspired from this place towards the end.

As I read through the Boumediene decision, I kept asking myself the same question: what happens now? How will the government respond to the ruling and the inevitable deluge of habeas petitions challenging enemy combatant designations? With full judicial review of these determinations now a certainty, it is natural to assume that the key concern for the government will be to ensure subsequent process is more “protective” of detainee rights. But as I read through the opinion, it struck me that the real battles of the future will not be about process, but about the substantive definition of the term “enemy combatant.”

When the CSRT’s were established, there was clearly an effort to model them after the Geneva Prisoner of War Convention (GPW) article 5 tribunal. Article 5 of the GPW requires that any doubt related to a detainees qualification for POW status must be resolved by a review tribunal. But the value of this model was limited by a simple reality: unlike an article 5 tribunal which applies the definition of prisoner of war (POW) found in article 4 of the GPW, the CSRT’s could not rely on a well established international definition of “enemy combatant.” Instead, the Bush administration created the definition to be applied by the CSRT’s. As the majority reminded us (as if we needed reminding), the scope of this definition was broad enough to include not only individuals captured on the battlefield, but also individuals apprehended in locations far removed from any combat activities.

Although the definition of enemy combatant was not the focus of this opinion, it seems to me that it is remains the critical issue lying just below the surface. Why do I believe this? Professor Kent already noted the sentence in Justice Kennedy’s opinion that hints at the possibility the use of more robust procedure might obviate the need for habeas access (Boumediene suggests that constitutional habeas may be unavailable for some foreigners held abroad if “there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power” (slip op. 65)). But I have my doubts that Justice Kennedy’s use of the term “process” is limited to procedure. This is because of the simple fact that the CSRT is in essence an article 5 tribunal. There is nothing magic about characterization of the review tribunal. Instead, the critical distinction between the CSRT’s and an article 5 tribunal is the standard applied to justify indefinite detention as a necessary incident of war. As a result, it seems to me that because the procedures for an article 5 tribunal are essentially analogous to those of the CSRT’s, the Court was not indicating that merely re-designating the CSRT’s to an article 5 tribunal would cure the defects. Nor that in the future prisoners of war would also be entitled to challenge their detention through the Great Writ. This is because of this fundamental distinction between an article 5 tribunal and the CSRT’s, a distinction that is more about substance than process.

Nor do I believe the distinction is merely definitional. Once an individual is designated a POW, a framework carefully developed to limit the arbitrary exercise of authority by the detaining power comes into force (see here). By removing these detainees from the protections of the GPW, it was the Bush administration that deprived them of the substantive and procedural checks to such arbitrary power, vesting the government with a degree of discretion that the Court was unwilling to permit. Thus, it is this full spectrum of protections for POWs – including a more limited definition of that term – that in my opinion would provide the “process” that Justice Kennedy suggested could obviate the need for judicial review.

So it seems that because the designation of enemy combatant has been used for individuals far removed from the “core” meaning of that term (captured on the battlefield after engaging in hostilities against U.S. or coalition forces), the definition of that term will now become central in the inevitable habeas litigation that will follow this decision. Tinkering with the CSRT procedures will do nothing to resolve the fundamental dilemma lying at the core of this process: the legitimacy of the expanded definition of enemy combatant resulting from treating the struggle against international terrorism as a “global war.” Relying on the current definition of enemy combatant used by the CSRT (an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners) will still require the reviewing court to decide how far “part of or supporting” extends.

So for me, the real “what now” is how the courts will react to the expansive definition of enemy combatant that has resulted in “generational” detention not only for individuals captured in a zone of active military operations, but also those captured in places far removed. I wonder if the government will move to codify that definition or perhaps adopt one more narrowly tailored to the traditional notion of a battlefield belligerent. I certainly believe that such a move is now far more likely than before this decision.

What seems certain is that until the scope of this definition is legally sanctioned, detainees will continue to argue that their attenuation from the military component of the war on terror makes their designation as enemy combatants illegitimate. And until that issue is addressed, the government will continue to struggle to defend depriving individuals of their liberty indefinitely based solely on the “necessities of war.” If there is one certain outcome – and in my opinion benefit of this opinion – it is that after a six year saga of legal opinions, policy decisions, and ongoing detentions the government will finally be forced to clearly articulate and defend the rationale for the expansive application of the term “enemy combatant” that is at the heart of the concept of a Global War on Terror.

A final thought inspired by my current locale. Last week I participated in a conference on the law of armed conflict at Hebrew University, and since then I have been staying with a close friend who recently retired as a Colonel from the legal department of the Israeli Defense Force (his last few years spent as the legal advisor to the commander of the West Bank command), and another close friend from the IDF legal department who studied with me at the Army JAG School. This has given me the opportunity to share perspectives on the role of the judiciary in wartime decisions. What I have found fascinating is routine intervention by Israeli courts in ongoing military operational decisions. But what I have found even more fascinating is how unremarkable this role seems to my friends and other Israeli legal experts at the conference. For them, a judicial opinion prohibiting certain interrogation techniques, or establishing the law applicable to targeted killings, or responding to a request to halt the destruction of a home in the West Bank is a normal part of the legal process. Perhaps more importantly, there seems to be a strong consensus that such a judicial role strengthens the legitimacy of military operations.

Don’t get me wrong, I have not become an advocate of routine judicial intervention in operational military decisions, and I have expressed to my friends here my doubts related to the competence of judges to rule on such matters. But it does strike me that perhaps judicial oversight of certain aspects of military affairs, especially those involving mature theaters of operation and the application of newly conceived concepts to justify government actions, might not be so outrageous. As several other bloggers have noted, this opinion will likely have a substantial positive impact on the international credibility of the U.S. But perhaps it will also make the job of the armed forces a bit easier by finally forcing greater clarity in the standards to be applied during military operations, which seems precisely the benefit that makes my Israeli friends feel so comfortable with their process.

http://opiniojuris.org/2008/06/15/what-now/

13 Responses

  1. The core definition of “enemy combatant” has nothing to do with battlefields. The term starts with the various groups designate by Article 4 of the Third Geneva Convention, and before it the Hague Agreements. First, you have all members of the regular armed forces of an enemy country. This includes cooks, truck drivers, doctors, engineers, generals, and lots of other people far from battlefields who have never engaged in combat. In the West, we refer to these people as “men and women in uniform,” but uniforms are a Western convention rejected by our current enemy. The absence of uniforms or other “fixed distinctive sign recognizable at a distance” is held by some to be important when distinguishing lawful and unlawful combatants, but it is only required of “members of other militias and members of other volunteer corps” to acquire combatant status. It is not required of “members of the regular armed forces” although the Western drafters in Geneva probably assumed that regular armies would be uniformed. Bad assumption.

    Then we have to add to those entitled to POW status any others who are legally classified as combatants. These are typically the unlawful combatants (or “unlawful belligerents” before 1949). In the Quirin case, the Supreme Court applies the term to “enemies of the United States and acting for … the German Reich, a belligerent enemy nation, [who] secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States … and went behind such lines, contrary to the law of war, in civilian dress … for the purpose of committing … hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States”

    The Eisentrager petitioners had been convicted of unlawful belligerency “by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan.” That is, they were uniformed members of a formerly belligerent nation who lost their combatant status when their army surrendered but who continued to engage in combat without privilege. To this category must also be added a grab bag of odd categories, such as uniformed members of neutral armies who engage in combat favoring one side in violation of that neutrality, or uniformed members of allied armies who turn coat and fight against us (not uncommon in Iraq).

    In the final decision in Padilla v Hanft, the Fourth Circuit found that Padilla qualified as an enemy combatant twice, once for his presence near the battlefield in Afghanistan (armed but not directly engaged in combat), and once for the Quirin offense of being an agent of an enemy military force who crossed lines without uniform on a mission of sabotage (when he was captured at O’Hare airport).

    The one actual decision of the current Military Commissions was to declare Hamdan to be an unlawful enemy combatant because 1) he admits to being a civilian, not a soldier, and thus cannot claim combatant privilege, and 2) he was captured transporting arms (anti-aircraft missiles) to enemy forces in the immediate vicinity of an active battle.

    Those who are clearly not enemy combatants include the Boumedienne group of Bosnians, residents of a neutral country thousands of miles from any battlefield, who have not joined an enemy army, and who were arrested by police and rendered to the US in Europe. Neither are any of the domestic crazy groups who read extremist web sites and run through the woods playing paintball before getting arrested by the FBI. You have to 1) join an army and go through some sort of basic training, 2) engage in or actively support combat in an area of active combat, 3) provide intelligence and tactical advice to a military headquarters planning combat, or 4) act as a spy or saboteur on a mission assigned by an enemy commander.

    There is a fuzzy area that involves all the things that a civilian might do without weapons to support but not directly engage in combat. This includes reconnaissance, being a lookout, or transport of supplies at a distance from active combat. The civilian truck driver carrying weapons from town to town is not a combatant, while Hamdan carrying weapons to a battle a few miles away was.

  2. Now that Boumediene has resolved the jurisdictional issue of the availability of habeas as a remedy, we finally come to the question of the substantive legality of the preventative detention regime in Guantanamo. One possible standard for such detention could be set by Congress by statute – whether that’ll happen or not I have no idea. The other possibility, mentioned by Marty Lederman a while back, is for the courts to assume that the international law of armed conflict governs such detentions, as that is a necessary implication of the AUMF.

    I agree entirely with everything that Professors Kent and Corn have said on the matter in their posts. I just want to highlight that the courts will be faced with two separate questions.

    (1) The first is the characterization of the armed conflict, an issue that we’ve discussed many times on this blog. To take the Bosnian group as an example, what conflict exactly are they being accused of participating in? It surely cannot be the armed conflict in Afghanistan, that was first international, and then became non-international. They were simply nowhere near the place. Is it then the ‘global war on terror’, and how do we qualify that?

    There are only two options in answer to this last question. Either the GWOT is not an armed conflict at all, as argued, inter alia, by the ICRC and by yours truly. If that is so, the Boumediene group simply cannot be detained under the law of war, because the law of war does not apply to it. The issue of their combatant status does not arise at all. Thus, the only way that these people could be preventively detained is if Congress expressly authorized their detention by statute (whether such detention would comply with international human rights standards is another story).

    The only other option is to regard the GWOT as an amorphous, global non-international armed conflict between the United States and Al-Qaeda as such. It is my understanding that this is now the US government’s official position. In my own view, that is an oxymoron of the vegetarian alligator variety. However, the US Supreme Court’s judgment in Hamdan could be interpreted as so ruling. (That indeed might be its most plausible textual interpretation. The other possible interpretation, particularly if one reads Justice Kennedy’s opinion carefully, is that the Court was only talking about the non-international armed conflict taking place in Afghanistan).

    So, if take the big picture of all detainees in Guantanamo:

    (a) Some of them were captured in connection to an actual armed conflict, such as the one in Afghanistan. They could either

    (i) have been captured in the international stage of the conflict, in which case the Geneva Conventions and the customary law of international armed conflict would apply, or

    (ii) they could have been captured after the international phase was over, and the non-international armed conflict began. Then, only the customary law on non-international conflicts would apply.

    (b) Other detainees were just picked up somewhere else on the planet, with no connection to the armed conflict(s) in Afghanistan. For them, either

    (i) the law of war would not apply at all, or

    (ii) the customary law on non-international conflicts would apply.

    (2) The classification of the conflict and the determination of its scope is absolutely crucial for the issue of combatant status. This is so because combatant status as such exists ONLY AND EXCLUSIVELY in international armed conflict. It is only if one fights on behalf of a sovereign that his belligerency can be privileged. The paradigm of non-international armed conflicts is completely different, as no-one has a right to take up arms against the state.

    This brings me to Howard Gilbert’s comment. The word ‘combatant’ is unfortunate because it is used in several different meanings. The original use of the word is actually not one of status – the status was one of a prisoner of war – but of a person who actively engages or is meant to engage in hostilities. Thus, Article 3 of the 1907 Hague Regulations stipulates that ‘The armed forces of the belligerent parties may consist of combatants and non-combatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.’ (italics mine)

    The word ‘combatant’ changed its meaning with Additional Protocol I, as it now became a status. It was now no longer a mere description based on the activity a person engages in, but on his right to engage in such activity (see Art. 43(2) AP 1).

    Thus, this definition of combatancy implies that it is lawful or privileged combatancy. That leaves out those persons who do engage in hostilities but have no right to do so. They can either be considered a part of a customary category of unlawful combatants (combatants in the purely factual sense, i.e. fighters), or (as is the view of the ICRC, numerous authors and the Supreme Court of Israel), as civilians who directly participate in hostilities, under Art. 51(3) of AP1.

    The key question thus becomes what is considered to be DIRECT participation in hostilities, and what is the temporal scope of such participation. These issues were recently tackled by the Israeli Supreme Court in the Targeted Killings case, which went through several factual scenarios in order to provide guidance to its armed forces. This entire problematic is also being actively considered by the ICRC.

    Back to my main point – all of these questions about lawful and unlawful combatancy or belligerency are only relevant for INTERNATIONAL armed conflicts. However, as we have seen above, only a very limited number of the Guantanamo detainees can be said to have been captured in the course of such a conflict. All others, if they could be said to have been captured in connection to any armed conflict at all, were detained in non-international conflicts.

    And there’s the rub, as was mentioned briefly by Beth Van Schaack in her post. There are little, if any, rules on internment or preventative detention in the law of non-international armed conflicts. Because the basic paradigm is that of a state fighting a rebel group, international law does NOT provide an authority for detention as it does in international conflicts. This so because due to the principle of equality that would mean that rebel groups are authorized to detain government troops, just as government troops would be authorized to detain them, and no state would ever accept that. Thus, IHL is basically silent on detention in non-international conflicts. It merely allows it, but does not authorize it.

    The basic implication of this discussion for the Guantanamo detainees is that authority for their detention CANNOT be found in the law of non-international armed conflict. Congress may certainly pass a statute providing such authority, but IHL itself does not.

    If Congress does not legislate, however, the courts will be in the dark. In all likelihood they will try to transpose by analogy the detention regimes applicable in international armed conflicts to non-international armed conflicts. That, however, would be difficult and doctrinally problematic, because the two bodies of law are based on different paradigms. The former are struggles between two sovereign equals, while no such equality exists in the latter. Whatever happens, it won’t be pretty.

  3. Was Vietnam an international conflict? It appeared to be a civil war, but was really a fight between the US and regular soldiers of the North Vietnamese army. Was Korea an international conflict? When it started, everyone regarded Korea as a single nation. There were two government, the ROK and DPRK, supported by different nations. While the UN and nations became involved on one side, the other side consisted of an unrecognized government and “volunteers” from another unrecognized government.

    Put simply, as long as the State Department can go thirty years recognizing the government on Taiwan as the only legitimate government of all of China, despite the fact that we fought 250,000 Chinese regular troops to a standstill in a real war, the assertion that national and international war is a meaningful distinction is flat out nonsense. The reality of the war is what is really important.

    The administration wants the enemy to not be a real nation so they can justify their decision not to grant POW status to prisoners. Administration critics want them to be not a real nation because then they can claim various IHRL points apply. Reality is different.

    On 9/10 the Taliban controlled 90% of Afghanistan, and it was the only actual government in the country doing any governing. The US recognized the government of President Rabbani, which was a government consisting entirely of President Rabbani. He didn’t even have a cabinet any more, let alone a real government. The Taliban had an army of 45,000 front line troops and maybe additional uncommitted militia reserves.

    Today, the Taliban government still exists, although we don’t know where it is. The Taliban army is still in the field. Yesterday they hit the Kandahar prison and freed 400 captured Taliban soldiers. It is not clear just how much of Afghanistan Karzai controls and how much the Taliban effectively controls. There are NATO troops supporting Karzai, and some Pakistani militia supporting the Taliban. Karzai is talking about formally attacking Taliban troops across the Pakistani border. When exactly did this become non-international?

    The Communists were a force in China. Then the Long March pushed them almost to a marginal existence. Then the war. Then the civil war. The Nationals retreated to Taiwan, but they did not surrender. They were a stronger and more powerful force on Taiwan than the Communists were after the March, so any objective measure to say they were “defeated” would also prematurely declared the death of the Communists.

    The sensible thing is to do what we did in Korea and treat an enemy army as an enemy army. Captured soldiers are regarded as POWs, even when the enemy does not accept the laws of war. Once an enemy starts fighting, the war ends only with surrender, a peace treaty, or annihilation.

    We were attacked by a special operations unit of the Army of Afghanistan. We attacked and largely defeated that army, but it is still conducting irregular warfare. Even having replace that government with a new one, then just as with the ROK/DPRK and the Nationalists/PRC, two government can coexist within the same country for a long time, and just recognizing one side doesn’t magically cause the other to vanish.

    If it looks like a War, and it fights like a War, and it kills like a War, then its a War. If you want to adopt any other principle, then Article III does not provide the framework to do it. It has not Foreign Policy role to decide who to recognize and why. It has not Intelligence role to estimate enemy capability. If has no Military role in the chain of command.

    It is relatively easy for the courts to decide that this is a real War. It requires only common sense and the same information everyone else has. However, to decide that a War is not a real War is some type of legal sophistry. It is fine academic nonsense, but the courts lack the information they would need to justify such nonsense in the face of an opposite finding by both political branches. Where is Mullah Omar? How many troops does he have? How are they deployed?

    However, the courts can require the President to fish or cut bait. He can have an International war under Geneva rules, or he can have a non-International war and get stuck with the IHRL consequences. The courts can force the political branches to choose, but they can’t substitute their own judgement and make the political decision for them (no matter how much Diana Motz would like to).

  4. Isn’t the Israeli high court’s interference rather “notorious” though? Our courts do pale as juducial activists compared to what the Israeli high court has gotten away with.

  5. Howard, with all due respect, the fact that you consider the distinction between international and non-international armed conflict (not ‘war’, which has ceased to be a relevant legal concept) to be flat out academic nonsense is pretty much your own problem. STATES consider that distinction to be relevant, and states have codified that distinction in all existing IHL treaties. A court of law simply cannot disregard it. And, for better or for worse, that distinction has direct legal bearing on the issues of status and detention.

    Btw, nobody serious disputes your point about the recognition of governments (but see John Yoo’s torture memo). The Taliban were the effective government of Afghanistan. Even if they were not recognized as such, this lack of recognition by the US cannot have an impact on the classification of the conflict. However, the Taliban STOPPED being the effective government of Afghanistan, and a new government took their place. From that moment on, the conflict stopped being international, and became non-international. As far as I am aware, this view is universally accepted by all actors concerned.

  6. Whether or not an armed conflict exists is a question of fact, not politics.

  7. Marko: Everything I have seen indicates that the full application of the Geneva Conventions is the gold standard in war. Wherever possible, countries are urged in its text to ensure its full application, which means to treat conflicts as international whenever possible. Thus in the Korean war, captured enemy soldiers were treated as POWs even though they were not entitled by a legalistic approach.

    However, the POW rules are short on process, and in the US and Western Europe, criminals get far more elaborate legal protections than POWs get. So some individual would get a better deal if GC 3 did not apply and the Detaining Power were forced to treat them under criminal law. However, once GC 3 applies, it prohibits any POW from being treated as a criminal, even if that would be to his advantage, and it prohibits any POW from waiving his Geneva protection, even when it would be to his advantage to do so.

    From one point of view, declaring this to be an international conflict covered by Geneva is better. From another, declaring it to be a non-international conflict covered by US civilian law is better. This is, however, a global decision. You don’t get to pick and choose on a case by case basis.

    In this case in Afghanistan, you can state facts that support one choice and I can state facts that support the other choice. So there is a controversy. Now who decides? Traditionally, military matters and foreign affairs are an Article II function. Congress has the right to set rules. In the context of this discussion, some may imagine that it is a question for the Article III court to decide. The problem is that this is International Law because more than one country is involved. On our side, all of NATO is involved. On the other side, well the Taliban and al Qaeda reject all international law because laws made by man are blasphemous. There is only one law, made by God, and it is Shari’a. I don’t see any way to get a multilateral consensus on this through any available mechanism.

    So personally, I like the suggestion in GC 3. When in doubt, treat detained enemy fighters as POWs. I don’t think that any nation in the West will object to that decision. Thus phrased, it is not a decision on the merits of the question. It is a method to bypass the question entirely and simply choose the safe alternative. If it really was important to STATES to make the decision based on facts on the ground rather than making the safe choice of what is regarded as the more moral alternative, then they wouldn’t have written that preference into all the same treaties they wrote the legal distinction into.

  8. Well under Geneva III a POW is entitled to the same process as a US service-member, and the US military justice system is by no means inferior or inadequate in comparison to the article III courts.

    That’s one of the silliest things about the military commissions: the notion that there was ever any need for them in the first place; the object was to evade the law, not to provide fair trials.

  9. To hold a POW until the end of hostilities, the only process is to take down his name and report him to the ICRC. Yes, in the unusual case of trying a war criminal he gets all the same rights as a civilian criminal defendant, but I was just taking about basic detention.

    The administration has created this “unlawful enemy combatant” + “terrorist” category that they believe lets them sometimes follow the POW rules (detain people without civilian criminal charges or trial) but then in some cases apply criminal rules (charging one detainee last week with “conspiracy” and “providing material support”, neither of which are charges that can be made under military law against an enemy combatant). The military judges have so far shown themselves to be honest and competent, so if you think that is the silliest thing about the MCA, sit back and wait until the judges really tear the prosecutors a new one.

  10. I don’t claim to have the answer to this, but I’m uncomfortable about being too quick to conclude that what begins as International Armed Conflict can be readily transformed into Non-International Armed Conflict. This concern stems as much from the practical consequences as from legal, but I do want to at least challenge thinkers to be sure that they’ve considered the ramifications from their approaches.

    So in WWII the Nazis roll through Europe and established governments are replaced with new ones either created by, or at least sympathetic to, Germany. At this point does the conflict in each of those countries transition to NIAC and so the French resistance becomes unlawful and (given that this predates any formal human rights law) those involved in the Warsaw ghetto uprising can lawfully be shipped off to concentration camps?

    Or do we argue that because this was a multinational conflict the fact that more than two nations were still fighting somehow preserves the international aspect of the conflict even within countries where there is no continuing combat?

    Harder case then – Afghanistan. Soviets roll into the country in Dec 1979. IAC right? – two states Party to Geneva? But within days a new Afghan government welcomes the Soviet presence to help quell “internal” disorder so now this is NIAC? The resistance has no legal rights and “Charlie Wilson’s war” is an unlawful interference in the domestic affairs of another state?

    Given, as we all agree, that NIAC is subject to much less international regulation than IAC, obviously nations have tremendous incentives to characterize any conflict that they are involved in as the former, or to recharacterize it as soon as possible. I understand that a blanket rule that what begins as IAC must always remain IAC may go too far, although I see some merit to it because the practical consequences of too readily allowing states to escape the IAC regime by creating puppet regimes strikes me as worse.

    Today there may be a practical alternative, such as saying that IAC can transform to NIAC if the UN seats the new government, but that would really be new law that states would have to agree to.

    I’d definitely like to hear others’ views on this.

  11. On the prisoner abuse at Bagram as it relates to the possible reach of Boumediene see America’s prison for terrorists often held the wrong men which is a series that just started yesterday.

    Best,

    Ben

  12. Well why are we in Iraq?

    We;re there because the Bush administration claims it’s in the interest of the United States — and there is an outstanding authorization for Mr. Bush to use armed force in Iraq.

    It couldn’t be anything but an international armed conflict, the same is true in Afghanistan only more so, and that will only change when the United States leaves or the conflicts end.

    I also beleive that if one takes the 2001 AUMF and the Bush administration’s arguments at face value, the only possible conclusion is that the United States has literally declared war on the entire human race, including the United States itself.

    It is literally a war on everything and nothing, because the AUMF literally authorizes the President to launch a military attack against any person or nation he designates.

    The United States military has been capable of attacking any point on the planet for quite awhile now, and it’s clear that the President has the authority to command the armed forces for any lawful purpose. The police force of any major city has the authority to enforce the law within their jurisdition subject to the orders of the mayor and acts of the city council, but who would claim the mayor could simply order the police to kill or detain anyone at will, or that the council could lawfully authorize such a thing?

    So I really don’t think Congress has the authority to issue such an authorization in the first place, because it’s analogous to issuing a search or arrest warrant with the name and address left blank to be filled in at the discretion of the police, only worse. It’s blank-check attainder, and the results are obvious: two pointless occupations that are doing more harm than good, and an administration of demented war criminals who think operating like the Mafia is just a good idea.

  13. “To hold a POW until the end of hostilities, the only process is to take down his name and report him to the ICRC. Yes, in the unusual case of trying a war criminal he gets all the same rights as a civilian criminal defendant, but I was just taking about basic detention.”

    That’s inaccurate: he’s entiled to the same process if he’s tried for any crime, not just war crimes. POWs can be held for the duration of the conflict, and have immunity for acts committed pursuant to lawful military operations. They do not have immunity for anything else.

    It’s also irrelevant: none of the detainees have been treated as POWs, the administration adamantly denies that they are POWs, and if you aren’t protected as a POW under Geneva III, then Geneva IV art. 4 protects you as a civilian subject to some exceptions based on nationality, not status.

    That discussion also presumes the conflict is international under Geneva Common Article 2, because that is the only way to reach article 4 in either oonvention, and Geneva III is the only extant authority for holding someone as a POW, for the simple reason that Geneva is now in force for every nation in existence.

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