[DigitalWarrior]

I was wondering what people believed the legal staus of "detained enemy combatants" should be. I am not interested in what they are being treated as here, but what is right.

1. Inhuman scum - could be executed wholesale without any moral ramifications. They have no rights.

2. Presumed Guilty - They are criminals that are assumed guilty until proven innocent.

3. Criminal Murderers - If they attempted to kill troops they are attempted murderers, but they still have to be proven guilty.

4. Common Criminals - They are guilty of a lesser offense. They still have to be proven guilty.

5. Prisoners of War - They are POWs. As such they get no civilian trial, but are imprisoned under conditions acceptable by the standards of the Geneva Convention.

[Preacherman]

I think that technically, their status is that of "unlawful combatants", as they were not fighting in the armed forces of a sovereign nation, were not in uniform, and were acting in a military manner against the forces of the United States. This status is conferred under the Geneva Conventions. As to how they should be treated, this is the big question at the moment. If they're tried as "unlawful combatants", their status as such has to be proved, before representatives of the International Red Cross, which is the "guardian" of the Geneva accords. If they are tried for terrorism, then they are regarded as common criminals, because the offence of "terrorism" is defined in US criminal law, not by international convention. If they're common criminals, they can't simultaneously be treated as "unlawful combatants": and if they're prisoners of war, they can be neither "unlawful combatants" or "common criminals" for the purposes of justice, as their status is protected.

It's a real legal can of worms, this one...

[DigitalWarrior]

Preacherman: Thank you for illuminating the leagl status of them currently. I sincerely appreciate this knowledge.

If the UN came to enforce Gun Confiscation (the ultimate armchair commando fantasy), it sounds like resistance fighters would be treated similarly. The resistance fighter is not fighting for a sovereign nation (US invideted blue helmets) they propably would not be uniformed, and acting in a military manner. Am I wrong?

Were the Jews in the Warsaw ghetto "unlawful combatants"?

Not arguing, just curious for a clarification.

[Mark Tyson]

From FM 27-10 Law of Land Warfare, chapter 3:


61. Prisoners of War Defined

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.

======[from same section as above]======

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

===================

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.

=================

Given that Al-Qaeda recognizes no laws and customs of war and tries to kill as many civilians as possible, I would say that no, they are not POW's.

[DigitalWarrior]

I appreciate the education that I recieve while walking The High Road. I am grateful mark.

[seeker_two]

Mark Tyson has it right. Treat them as guerrila warriors, saboteurs, & spies.

However, this should apply to non-citizens.

American citizens are still entitled to their rights unless apprehended while actively fighting for the enemy. Suspicious travel iteneraries aren't enough to hold someone w/o legal counsel... :fire:

[gunsmith]

they grew up poor stupid brainwashed aggressive
thugs. it's to bad,but it's not my problem.
we have homegrown stupid brainwashed aggressive
thugs. they are called "gungrabbers"
they want me to accept that the "state" lets me have some
rights. I say our Creator gave us unalienable rights.
"gungrabbers" make life easy for genocidal thugs.
if the anti semitic, homophobic,misogynistic "human" goons
at gitmo are not being treated very nice,I will concern myself
with their fate after I am not breaking any laws
while walking down the street in SF or NY with my
personal uzi.
untill then I say it's not my problem:neener:

[Erik]

None of the above, though they may indeed enentually prove to fall into one of the listed categories.

[DigitalWarrior]

Mark Tyson Posted the following on a different thread, but it is very applicable here.


More to Ponder
The uniform issue is complicated - here's more from the Army's FM 27-10 (Law of Land Warfare), chapter 3:

======================

64. Qualifications of Members of Militias and Volunteer Corps

The requirements specified in Article 4, paragraphs A (2) (a) to (d), GPW (par. 61) are satisfied in the following fashion:

a. Command by a Responsible Person. This condition is fulfilled if the commander of the corps is a commissioned officer of the armed forces or is a person of position and authority or if the members of the militia or volunteer corps are provided with documents, badges, or other means of identification to show that they are officers, noncommissioned officers, or soldiers so that there may be no doubt that they are not persons acting on their own responsibility. State recognition, however, is not essential, and an organization may be formed spontaneously and elect its own officers.

b. Fixed Distinctive Sign. The second condition, relative to the possession of a fixed distinctive sign recognizable at a distance is satisfied by the wearing of military uniform, but less than the complete uniform will suffice. A helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian would satisfy this requirement. It is also desirable that the individual member of the militia or volunteer corps wear a badge or brassard permanently affixed to his clothing. It is not necessary to inform the enemy of the distinctive sign, although it may be desirable to do so in order to avoid misunderstanding.

c. Carrying Arms Openly. This requirement is not satisfied by the carrying of weapons concealed about the person or if the individuals hide their weapons on the approach of the enemy.

d. Compliance With Law of War. This condition is fulfilled if most of the members of the body observe the laws and customs of war, notwithstanding the fact that the individual member concerned may have committed a war crime. Members of militias and volunteer corps should be especially warned against employment of treachery, denial of quarters, maltreatment of prisoners of war, wounded, and dead, improper conduct toward flags of truce, pillage, and unnecessary violence and destruction.

65. The Levée en Masse

If the enemy approaches an area for the purpose of seizing it, the inhabitants, if they defend it, are entitled to the rights of regular combatants as a levée en masse (see GPW, art. 4, par. A (6); par. 61 herein), although they wear no distinctive sign. In such a case all the inhabitants of the area may be considered legitimate enemies until the area is taken. Should some inhabitants of a locality thus take part in its defense, it might be justifiable to treat all the males of military age as prisoners of war. Even if inhabitants who formed the levée en masse lay down their arms and return to their normal activities, they may be made prisoners of war.

=====================================

Very complex stuff. I would say that they have rights not to be tortured, humiliated, right to exercise their religion, etc. But I have no doubt that as soon as they are released they will go right back to their Jihad against us. Individual trials would be difficult. Who caught them? US forces or United Front? Will witnesses be tracked down for each one? If some are citizens of Saudi Arabia or Russia (the Chechens) should they be sent back there for trial?

I don't have the answers. We have to muddle through as best we can, try to met out some rough justice while also trying to be humane and respecting the rule of law. We did so with the Nazis - we should do so here as well.



I think Mark deserves the highest possible praise for sharing with us highly relevant facts.

[Futo Inu]

Well, since our gov't (Ashcroft et al) believes and has acted upon the belief that enemy combatants can include U.S. citizens whose supposed "act of war" occured wholly within the U.S., the answer is "none of the above", or number 4 - they should be given full rights of the criminally accused as protected in the BOR. Any other result puts YOU and ME at risk of summary execution, or whatever it is they do to enemy combatants. Now having said that, since this is obviously a bad result, if and when we get a Const. amendment or public law (the sooner the better) that correctly DEFINES enemy combatants, and get rid of the asinine definition ascribed to it by the abusive dictator-wanna-be moron Ashcroft, then great- the answer should then be one of the others above you listed. Some village is being deprived of his idiot with our current AG in Washington.

[WT]

As "international terrorists" defined by GWN's Executive Order of November 13, 2001 I see no problem with having them lined up against a wall and shot. I don't believe "international terrorists" are in the same Geneva category as illegal combatants.

Per the Executive Order the Military Tribunal is excused from the normal rules of evidence. We could have 3 second lieutenants make up the board. Each terrorist could make a 5 minute speech and then be taken to the nearest wall (or ravine) to have his birth certificate cancelled.

As our allies the Brits and Australians can be given their citizens to deal with as appropriate. Of course, we would be happy to help them out supplying the "needle".

US citizens would be tried in US Federal or state courts under the appropriate statutes and rules. We've already seen this done with Johnny Jihad. He currently is vacationing in the federal penal system and will be out enjoying the good life before he is 40.

For months I breathed the fumes from the burning World Trade Center. I don't take to terrorists too kindly.

[DigitalWarrior]

The executive order in question, answered many of my fears.

The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that (meet certain defined conditions - DW)

Translation is that only non-citizens are affected by this particular order.

Zacarias Moussaoui is a foriegner and as such is an individual subject to this order.

Jose Padilla however is not, what is the logic for him being held (I figure that he is guilty as hell but we have to prove the in the US)?