BUSH PARDON's HIMSELF !!!

[mr.jaynes]

Well, a very credible case could also be made for bringing Henry Kissinger to legally account for his antics during the Cold War era, but that's probably not going to happen either.

[we vs us]

quote:Originally posted by mr.jaynes

Well, a very credible case could also be made for bringing Henry Kissinger to legally account for his antics during the Cold War era, but that's probably not going to happen either.

I don't think any American -- either Kissinger, or Bush -- will ever be tried by the ICC, or for war crimes.  We simply wouldn't allow it.  I was just outlining, as I see it, what might be a possible case.

[mr.jaynes]

But I'll split the difference with you: to have a US court review these things-both Bush and Kissinger-and see what should be done.

[we vs us]

quote:Originally posted by iplaw

Tay...I didn't know you practiced international law?

quote:Originally posted by we vs us

Short answer would be violation of GCIII (third Geneva Conventions), concerning the treatment of prisoners of war.  

Oh boy...this should be good.

quote:
As signatories to GCIII, the US is legally bound to follow its procedures and abide by its tenets.  Failure to do so is a violation of international law, and hence prosecutable in the Hague.

Uh huh...

quote:
The obvious violation would be the unilateral creation of a third category for a party captured during wartime, the "unlawful enemy combatant."  GCIII states -- and from what I've found, case law supports -- that a captured party is either a civilian or a prisoner of war, and cannot be outside the law.  In other words, there is no lawful third designation.

What case law would you be referring to?  I'm guessing it's not US federal law.  

quote:
This made-up third designation is hugely important because it has been the key justification for the way we've prosecuted our GWOT justice system. Though the designation is false, creating it has allowed us the legal (and crucially, the political) gray area to create Guantanamo, as well as to wiggle around with our definitions of torture and interrogation.  

I'm sorry, how is the term "enemy combatant" false?  What uniform were these people fighting under?  By what authority, state or otherwise, did they kill our soldiers?  Are you attempting to argue that terrorists, simply because they have NO definition under the Geneva convention, are simply civilians?

quote:
And further, waterboarding is unequivocally torture. All legitimate international legal authorities consider it so, to my knowledge.  In fact, we considered it torture up until the current administration.  We actually prosecuted people for doing it to our soldiers during WWII, and obtained convictions and stiff sentences.  However, the Bush administration has worked very very hard to create enough daylight between their own definitions and accepted legal definitions to justify their actions.

Could you please point us to the international law that explicitly states that not only is waterboarding illegal, but defines a punishment for it as well?  Waterboarding is not a monolithic idea.  There are many forms of the practice which not all countries oppose.  Could you be more specific as to which ones these "laws" cover?[][][]

Well, here's the deal.  I won't have a discussion about this if all this is to you is one big troll-fest, or a way to "one-up a libtard."  If that's all that's happening here, then I'm done talking and you and Guido can hang out and chortle to each other all day long for all I care.  

But if you want to take my argument seriously, read GCIII, especially Article 5 which states:  

quote: 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.

That means, pretty unequivocally, that there are two legal operative categories.  "Unlawful Combatant" is a designation that was referred to during WWII, especially during the the trial of German saboteurs in the US (ex parte Quirin).  However, after WWII, we signed the Geneva Conventions, which superseded Quirin's precedent -- and which, btw, holds the force of federal law under the Supremacy clause of the Constitution. Again, according to GCIII, a captured individual is either a POW or civilian, and if he/she does not readily fall into one category or another, he/she is guaranteed a trial to determine their status.  Only then can legal action or repatriation follow.

And in Hamdan v Rumsfeld, the Supreme Court ruled that GWOT detainees are in fact eligible to be treated as POWs, and further that the military tribunals that the Bush administration had set up to determine their status were in violation of the law.  

Rebuttal?

[iplaw]

Originally posted by we vs us

quote: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.

These individuals detained are clearly NOT governed by Article 4.  At this point our Supreme Court has upheld our right to hold such detainees as "enemy combatants" and no law currently exists, domestically or internationally, stating their status to be in contravention of any law.

quote:
That means, pretty unequivocally, that there are two legal operative categories.

No.  It explicitly states that if people do not fit into the predefined categories of Article 4 they are afforded protection until a determination of a competent tribunal state otherwise.  Our supreme court has that determination as well as current CSRTs.

quote:
And in Hamdan v Rumsfeld, the Supreme Court ruled that GWOT detainees are in fact eligible to be treated as POWs, and further that the military tribunals that the Bush administration had set up to determine their status were in violation of the law.  

The Hamdan decision stated no such thing, if fact the court explicitly stated that the question of his status as a POW was currently undecided and that was the reason that a military tribunal was inappropriate.

After Hamdan we established CSRT as required by the GC.  Are you opposed tribunals as well?