Supreme Court Decisions

[Xantar]

Originally Posted by Professor S

I am aware of the entire document, but I only quoted the part that SPECIFICALLY EXCLUDES those detained by our policy because I know no one would want to read the whole thing. These areas that are bullet pointed are put in place for a reason:

- that of being commanded by a person responsible for his subordinates
- that of having a fixed distinctive sign recognizable at a distance
- that of carrying arms openly;
- that of conducting their operations in accordance with the laws and customs of war.

The fixed distinctive sign and conduct portions exclude most of those that we detain. That said, if we are detaining any that did follow all of the GC rules, then they should be provided the protections. There might be areas in the GC that could be interpreted to protect these illegal combatants... if these bullet points didn't specifically exclude their protection. Now in a document that is a bit ambiguous, don't you think that such specific exclusions were put in place for a reason and with purpose? I have to think that they are full in the spirit of the document.

Those bullet points aren't meant to exclude anything. The overarching paragraph says, "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." Your bullet points describe one of the categories of detainees, but there are many other possible categories which is why I referenced the entire section of the Accords. As I pointed out, detainees arguably belong in one of the other categories which includes, "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Paragraph 2.1 could also be argued to apply although I don't seriously think the Supreme Court would accept that.

Also, referring to the contract with humanity, once again I'll bring up the specific exclusions. We signed a treaty with humanity, not terrorists who refuse to follow the codes given. The GC even gives the ability for rebels and resistance fighters to be recognied by its articles, but those that we are fighting ignore them and refuse to operate under insignia or proper conduct. If they refuse to follow the rules of the GC, why should we be expected to operate under a disadvantage and respect their rights under it?

Because we're better than them. And before you say it, yes I am willing to allow more of us to be killed for that reason. If we are all fighting the war on terror in order to preserve our liberties, we should all be willing to lay our lives on the line to protect those liberties and ideals. And really, I don't mean to be glib, but this war on terror is pretty small potatoes as wars go. And besides that, I don't see how requiring all testimony to be sworn and requiring that every detainee must have a specific charge is going to make another terrorist attack more likely.

But that's a difference in philosophy, and although I think I understand where you're coming from, all of that is not the issue here. As I said before, the Supreme Court did not specifically make a decision about whether the Geneva Conventions apply to detainees under the unlawful combatant label. It said that the decision whether or not to apply those standards is properly made by the Congress. Congress may decide collectively that it agrees with you and that illegal combatants do not receive protections under the Conventions. This is pretty typical of the Supreme Court, actually. Particularly when its members are as divided as they are now, the Supreme Court tends to base its decisions on little procedural issues like this rather than trying to make some kind of ethical statement. I have the feeling that Anthony Kennedy wouldn't have joined into the majority if the decision had been "the camps must go."

BTW, what are your thoughts about the imminent domain decision to allow private companies to force you to sell your property? Seems like a recipe for extreme corruption and abuse to me, all in the name of higher local government revenues. Dispicable (and I don't use that word often).

I have no idea. I've heard nothing about this decision. Is there a link I could look at?

[Professor S]

Originally Posted by Xantar

"Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Paragraph 2.1 could also be argued to apply although I don't seriously think the Supreme Court would accept that.

I still think you are arguing ambiguity against specificity. What government are these insurgents professing allegiance to? Also, what armed forces are these people members of? What specific organization, if not government, are they allied to? Your arguments for including them are based on language which you can literally applyto anyone. You could apply your arguments to organized crime if you worded it right and chose to make that argument. I feel like your taking the Devil's Advocate argument and trying to defend its creation into policy, while ignoring the spirit of the document and intentions of its creators.

Because we're better than them. And before you say it, yes I am willing to allow more of us to be killed for that reason. If we are all fighting the war on terror in order to preserve our liberties, we should all be willing to lay our lives on the line to protect those liberties and ideals. And really, I don't mean to be glib, but this war on terror is pretty small potatoes as wars go. And besides that, I don't see how requiring all testimony to be sworn and requiring that every detainee must have a specific charge is going to make another terrorist attack more likely.

I used to think this way too, after everything I've even and read I just don't think these people care. They are looking for excuses to continue the struggle, just like the Israel situation. The biggest danger to these extremists is the resolution of their fight. The struggle is all they have.

But that's a difference in philosophy, and although I think I understand where you're coming from, all of that is not the issue here. As I said before, the Supreme Court did not specifically make a decision about whether the Geneva Conventions apply to detainees under the unlawful combatant label. It said that the decision whether or not to apply those standards is properly made by the Congress. Congress may decide collectively that it agrees with you and that illegal combatants do not receive protections under the Conventions. This is pretty typical of the Supreme Court, actually. Particularly when its members are as divided as they are now, the Supreme Court tends to base its decisions on little procedural issues like this rather than trying to make some kind of ethical statement. I have the feeling that Anthony Kennedy wouldn't have joined into the majority if the decision had been "the camps must go."

So you're saying that Congress is given the power to determine the fate GITMO and GC interpretation? I'll have to look into that. While this does enter in a little into the Comander and Chief powers, I'm not necessarily against such a ruling.

I have no idea. I've heard nothing about this decision. Is there a link I could look at?

Look it up, lazy. It was a pretty big deal not too long ago.

[Xantar]

I still think you are arguing ambiguity against specificity. What government are these insurgents professing allegiance to? Also, what armed forces are these people members of? What specific organization, if not government, are they allied to? Your arguments for including them are based on language which you can literally applyto anyone. You could apply your arguments to organized crime if you worded it right and chose to make that argument. I feel like your taking the Devil's Advocate argument and trying to defend its creation into policy, while ignoring the spirit of the document and intentions of its creators.

Who knows what the intentions of the creators were? I could just as well say that you place far too much emphasis on a uniform as criteria for whether or not someone should be waterboarded. And maybe the Geneva Conventions were meant to be vague with regard to its definition of a prisoner of war.

I don't know. I'm not a lawyer yet, and I don't claim to be able to read the Supreme Court's mind. But I just don't think that the mere fact that terrorists claim allegiance to a loose network of cells rather than a fully organized government is a reason to throw out several decades of time-tested and formulated law in the form of the UCMJ and Geneva Convention and make up brand new procedures based on a new definition of the enemy. Do our policies have to be modified? Arguably so. But to take a step back from interpreting the Court's decision for a second, I personally think that the Bush Administration went about it totally the wrong way. There was too little debate about their detainment policies and afterwards there was too little information being given about how many people were getting indicted or charged or released. Major decisions like this can't be trusted to one administration, no matter how wise it is.

I used to think this way too, after everything I've even and read I just don't think these people care. They are looking for excuses to continue the struggle, just like the Israel situation. The biggest danger to these extremists is the resolution of their fight. The struggle is all they have.

Well, first of all, if you're right then I don't understand the wisdom of trying to take the fight to their home land. But more importantly, I'm not concerned with how the terrorists see us. As you pointed out, they will see us as the Great Satan regardless. However, with the erosion of global prestige comes vastly decreased diplomatic power. If war is supposed to be the option of last resort, then we should be ensuring that our position of negotiation is as strong as possible. If we want to be the world's policeman, then we should hold ourselves to a higher moral standard than anybody else. Otherwise, who will care to listen to us?

Look it up, lazy. It was a pretty big deal not too long ago.

Oh fine. I was hoping you could at least give me a case caption. Anyway, I assume you're talking about Kelo v. New London. I read a few hastily thrown together opinions by a judge and a professor, so I won't claim to understand what the hell is going on. The issue here is that eminent domain is an established power of the government. And a previous decision established that a local government can in fact seize a property through eminent domain (although as always it must pay the market price for that property) and then give it over to a private company. I think that New London in this case decided on its own to seize some land and develop it for Pfizer. Had Pfizer asked the town to exercise eminent domain, we'd be in a different boat.

But I'm open to changing my mind on that point because, as I said, I don't feel I've read enough about it.

The main point I want to make is it sounds like rather than actually approving of the seizure, the Court refused to nullify it. I don't know what the Court thought about New London's plan as far as its economic merit, but courts generally don't like to flat out rule against a property condemnation. There's too much precedent to do that lightly. And instead of getting the judicial system mired in the details on a case-by-case basis, the Supreme Court simply overruled the challenge. If that means Congress and state legislatures start moving to limit the impact of the decision as much as possible, I don't think that would bother the Court very much.

Again, I don't know whether I agree with the decision or not. However, what I've read seems to indicate that people in the legal community were not terribly surprised by the decision and that the legislatures and the media were the ones who made a big deal out of it.

[Professor S]

Originally Posted by Xantar

Who knows what the intentions of the creators were? I could just as well say that you place far too much emphasis on a uniform as criteria for whether or not someone should be waterboarded. And maybe the Geneva Conventions were meant to be vague with regard to its definition of a prisoner of war.

You say they were meant to be vague, but in in what I pointed out they WEREN'T. There is NOTHING vague about that criteria. Also, whether or not prisoners are being waterboarded has NOTHING to do with what I'm talking about. I'm talking about who is covered by the GC, and not about any specific violations. What I'm concerned about with this ruling is 1) reduction of executive powrs for political reasons and 2) letting ethnocentric sensibilties hamper us during a brand new war that has less to do with nations and more to do with ideals and ways of life. They are not covered under the GC, they are specifically denied coverage, and id waterboarding one terrorist saves one marines life, waterboard like mad.

I don't know. I'm not a lawyer yet, and I don't claim to be able to read the Supreme Court's mind. But I just don't think that the mere fact that terrorists claim allegiance to a loose network of cells rather than a fully organized government is a reason to throw out several decades of time-tested and formulated law in the form of the UCMJ and Geneva Convention and make up brand new procedures based on a new definition of the enemy.

Yes, it is. This is a brand new kind of war and we can't let DATED regulations that assume civized actions on a war that is half military and half police action. I don't think the writers of the GC had any clue what the war on terrorism would be like or imagined nationless wars with nothing to do with national borders. I do know that they intended to GC to only cover those that represented these things, because it is the only part of the GC that is written in plain english. Whether you sympathize or want to rad it that way is irrelevant to me.

Well, first of all, if you're right then I don't understand the wisdom of trying to take the fight to their home land.

Because if we don't, they will take it to ours. Look at Israel. They tried. They pulled out of Labanon and Gaza and what happened? Plaestine elected Hamas as their government and ATTACKED FROM THE AREAS ISRAEL RETREATED FROM. Lebanon has also attacked from the areas that Israel gave back. Peace is the greatest horror terrorism knows. Over-anlysis of something so black and white as terrorism leads to inaction and inaction allows bigger and more hideous acts to take place. We ignored Osama for years hoping he'd just go away and instead we allowed him to organize the killing of 3,000 US citizens. And I really don't care about the whole "holy land" defense of his actions. Thats an excuse for blind violence, not a reason.

But more importantly, I'm not concerned with how the terrorists see us. As you pointed out, they will see us as the Great Satan regardless. However, with the erosion of global prestige comes vastly decreased diplomatic power. If war is supposed to be the option of last resort, then we should be ensuring that our position of negotiation is as strong as possible. If we want to be the world's policeman, then we should hold ourselves to a higher moral standard than anybody else. Otherwise, who will care to listen to us?

You still think this can all be resolved by talking about it, and dialogue has done nothing for 30 years. Since the West gave the Middle East the means to kill us with oil money, they have been trying to. They've attacked embassies, embassadors, ships and civilians. They've taken hostages and grandstanded for the world media. NOTHING has CHANGED.

I've said this for a while now and there are only two resolutions to this cultural conflict. 1) An Islamic reformation, which it is badly in need of, or 2) A complete subjugation of one people by the other. The cultural war is coming, and its coming soon. My original estimate was in 50 years, and then I ratcheted it down to 10.

Thoughtful discussion and diplomcy normally works, but how has it EVER WORKED IN THE MIDDLE EAST? It never will until the westernized form of it exists. It needs to recognize the separations between the religious and secular. They need to start believeing in NATIONALISM as well as their faith. They also need to honor and respect other faiths and governments other than their own.

But I think its too late for that. The Islam that we've grown to know and hate has reached a tipping point across the world, especially in Western Europe. Doubt me if you wish, oir cal, me a nutbag, but just wait and see. The world is going to have to choose what side they want to support and support it with arms and the blood of their people.

Now I've gone and depressed myself. I'm done talking about it.

[KillerGremlin]

One day Santa will reclaim his place as king of England and the Middle East will bow down to the great and mighty duck people.

[Professor S]

Originally Posted by KillerGremlin

One day Santa will reclaim his place as king of England and the Middle East will bow down to the great and mighty duck people.

One can only hope.

[Xantar]

Well, I've been busy lately which is why I'm late with this reply. But here we go.

I'll just skip over your rant on waterboarding since you've said it's not relevant. I'll just note here that it's all well to say it's ok to waterboard a terrorist, but we've been waterboarding people who have done nothing wrong except (for example) having an Afghan warlord declaim them as terrorists to the U.S. And you sound more than a little frightened through it all.

Yes, it is. This is a brand new kind of war and we can't let DATED regulations that assume civized actions on a war that is half military and half police action. I don't think the writers of the GC had any clue what the war on terrorism would be like or imagined nationless wars with nothing to do with national borders. I do know that they intended to GC to only cover those that represented these things, because it is the only part of the GC that is written in plain english. Whether you sympathize or want to rad it that way is irrelevant to me.

You say it's dated. I say it isn't. Who's right?

Well, one thing is for sure: neither of us should get to make the decision. Nor should the President. You think you know what the writers of the GC intended, but there's really only one thing that's certain: those writers didn't intend for the Geneva Conventions to be overturned by someone just because they think they're no longer relevant. Have a look at Article 5 of the Geneva Conventions.

"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."

Even if you're right, reasonable people disagree on whether the Geneva Conventions apply, and the proper way to resolve this is to have a tribunal determine the status of the prisoners. No such thing was done in this case. You can't just override the Geneva Conventions like that.

Because if we don't, they will take it to ours. Look at Israel. They tried. They pulled out of Labanon and Gaza and what happened? Plaestine elected Hamas as their government and ATTACKED FROM THE AREAS ISRAEL RETREATED FROM. Lebanon has also attacked from the areas that Israel gave back. Peace is the greatest horror terrorism knows.

I'm not even sure where to begin with this. You either aren't expressing yourself very well or you are sadly ignorant of the state of affairs in the Middle East. I guess I'll just try to untangle this mess one piece at a time.

Yes, Palestine elected Hamas. Do you think it's because the average Palestinian loves himself some suicide bombers? The fact of the matter is the PLO was corrupt in many districts, and so Palestinians were faced with the rather unsavory choice between a corrupt PLO who (other than perhaps Mahmoud Abbas) didn't really have the people's interest at heart or Hamas who occasionally tried to improve schools. All politics are local, even in Palestine, and so the elections kicked out the PLO. That doesn't mean that the average Palestinian was actually endorsing Hamas. And, you may want to note, immediately after Israel withdrew from Gaza, terror attacks dropped drastically even with Hamas in the government.

And of course, the nice thing about elections is that if you don't like the result, you can just wait for the next one to fix things. I know you want us to wait 10 years to see whether World War III erupts. I think I would prefer to wait 4 years.

As for Lebanon, it wasn't exactly a surprise that Hezbollah started attacking Israel. But it may not be for the reasons you think. I suggest you read this article which was written right after Syria withdrew from Lebanon. In particular, check out this paragraph which predicts exactly what happens a year after the article was written:

In the face of a Syrian withdrawal, Hezbollah and other Lebanese concerns that have benefited from Syrian patronage may very well resort to violence to protect their interests. Hezbollah may choose to foment strife, conveying the all too clear message that there will be no stability in Lebanon without Syria's steadying hand. Recent bombings in Christian suburbs of Beirut may provide a foretaste of what lies ahead.

This could potentially lead to widespread unrest, even civil war, which would have major ramifications in Israel, Syria and beyond. Some Israeli officials believe that Hezbollah has recently reinvigorated attempts to subcontract attacks in Israel by Palestinian militant groups. A Lebanese civil war may in fact redound to Hezbollah's favor, as a Syrian withdrawal would leave Hezbollah the most powerful force in Lebanon -- more powerful than the Lebanese army. A Hezbollah victory in such a conflict would fulfill Shi'a aspirations of controlling the country and create nightmares in neighboring countries with potentially restive Shi'a populations, Saudi Arabia not least among them. Such a development would create a Shi'a axis stretching from Iran, through Iraq to Lebanon, delighting Tehran.

You seem to believe that this was a case of "give em in inch and they'll take a mile" when that simply isn't the case. What happened here is basically another clash between Shia and Sunni in which Hezbollah is attempting to use Israel's response to further their own local ambitions. You're absolutely right. Peace was the greatest horror this particular terrorist organization knew.

By the way, the history of Israel's withdrawal from Lebanon is very interesting. Terrorist attacks dropped to all time lows in the aftermath, and a relative peace ensued for over five years on that front. Meanwhile, international pressure mounted on Syria to withdraw from Lebanon. Everybody from the European Union to Saudi Arabia and Egypt was calling for it, and the Syrian government found itself isolated. And so in 2005 it withdrew. The Lebanese government had a lot of trouble getting Hezbollah under control. What else would you expect from a country whose government is only a year old and has just been essentially under foreign rule for over a decade? There was a political vacuum left which Hezbollah is now stepping in to try to fill. As odd as it may seem, Israel is incidental to Hezbollah's ambitions for the moment.

There are two points I'm trying to make here. One is that contrary to what you may think, Hezbollah's attacks are not a response to Israel's withdrawal. It's not a case of, "Israel has retreated. They are showing weakness, and therefore we will renew our attack." That would be very odd considering that it took Hezbollah more than five years after the withdrawal to mount their attack. The crisis in Lebanon was precipitated by Syria's actions and Lebanon's inability for whatever reason to assert control quickly enough.

The second point I want to make is that in this case, diplomacy worked. Israel withdrew. Terrorist attacks dropped. And thanks to continued pressure by governments all over the world, Syria withdrew and Lebanon became independent. Sure, there's a flare-up now, but that's to be expected with these kinds of things. You might even read it as a movement in its last throes (to borrow Dick Cheney's phrase) since if Hezbollah fails to set the region on fire, they will be effectively isolated to wither on the vine. I should also note that Hezbollah's actions have been specifically condemned by Saudi Arabia and Egypt among others, and some journalists in the area even report that the Lebanase are very annoyed with Hezbollah. If we can break Hezbollah's attack and get the Lebanese government firmly in control, then Israel's withdrawal will be well worth it.

Over-anlysis of something so black and white as terrorism leads to inaction and inaction allows bigger and more hideous acts to take place. We ignored Osama for years hoping he'd just go away and instead we allowed him to organize the killing of 3,000 US citizens. And I really don't care about the whole "holy land" defense of his actions. Thats an excuse for blind violence, not a reason.

I don't know why you brought up the "holy land" because I certainly didn't. And if you're going to just call terrorism a black and white problem that doesn't bear thinking about, then there's no point in us talking about it here. Don't get me wrong. Terrorists are evil and cowardly human beings who all deserve to die (or at least rot away slowly). But that doesn't mean the solution to terrorism is so black and white. What's disappointing about your post is how it parrots right wing talking points so well without much evidence that you have spent much time thinking about it for yourself.

Besides, I'm not a soldier nor am I a member of the administration. Neither are you either of those things. So what can we do really except try to educate ourselves?

Incidentally, there's a very interesting interview carried out by BBC Radio with a CIA agent. This agent (who was part of the task force tracking Bin Laden) revealed that back in 1998 or so, we had an opportunity to assassinate Bin Laden. The plans were ready and approved and the agents were ready to pull the trigger (figuratively, because he didn't reveal the exact method that was going to be used to carry out the assassination). But in the end, the Clinton Administration called it off because for some reason they felt that it would upset a trade deal that they were brokering with the Chinese. Just thought I'd throw that out there.

You still think this can all be resolved by talking about it, and dialogue has done nothing for 30 years. Since the West gave the Middle East the means to kill us with oil money, they have been trying to. They've attacked embassies, embassadors, ships and civilians. They've taken hostages and grandstanded for the world media. NOTHING has CHANGED.

You're attributing a lot of things to me that aren't true and have no basis in anything I said. Diplomacy is more than just talking. It's a combination of negotations, economic policies and strategic deployment of military forces. As I pointed out before, such a thing has gained Lebanon its independence. It may be a small thing, but it's progress. And if it takes 30 years to wring out that sort of result, so be it.

It does you no good to act as if the Middle East is a big monolithic threat looming over the West. They are far from united. Every Middle Eastern country has their own agenda, and they are just as likely to commit acts of aggression against each other as against us. Organizations like Al Qaeda have captured our attention because they talk about reforming the entire world to their Islamic state, but the truth is even they are often used as pawns by the governments of other countries to further their own interests - which usually don't include world domination, believe it or not. If we were to withdraw entirely from the region and allow everybody to work it out on their own in whatever way they want, we would cease to be a target. Whether we find that to be a morally acceptable option is a different matter.

I've said this for a while now and there are only two resolutions to this cultural conflict. 1) An Islamic reformation, which it is badly in need of, or 2) A complete subjugation of one people by the other. The cultural war is coming, and its coming soon. My original estimate was in 50 years, and then I ratcheted it down to 10.

Well, then I guess it'll have to be Option #1 because subjugation sure as hell isn't going to work. This is guerilla terrorism we're talking about. By its very nature, it thrives under oppression, real or perceived. This isn't the 19th century any more. No country or culture can rule over another against its will in this day and age. We can't even subjugate Iraq. What makes you think we could hold down the entire Middle East?

Also, your prediction about the upcoming culture war is a guess. It may be informed. It may have some thought behind it. But it's still nothing more than a glorified guess. We can't even predict what the American economy will look like 5 years from now. We can't even predict how long any particular war is going to last. I don't think you're crazy, but frankly, I find your assertion that you know what's going to happen ten years from now a little conceited. And until we have something better than a hypothesis of the future, I prefer to act as if we all still have some control over our destiny rather than retreat into futility and blind violence.