A bit of a stretch, IMO. What you are saying is that we should keep things as pre-911 until someone does it again.

Where is there question of the combatant status?

I didn't say that.

First, I said that it was was "my guess" that the tactics employed by the Bush administration will result in some guilty and dangerous people being set free. Since none of these cases has been adjudicated, we don't know whether that will happen.

Second, I didn't say that we should treat enemy combatants like common criminals. I said they should handle them in accordance with the law. If we've done that, then my guess will be proven wrong.

Third, I didn't blame Bush. I predicted that the tactics used by his administration will result in dangerous and guilty people being set free. Since none of this has happened yet, I don't know whether Bush himself, or anyone else, is to blame.

People talk about these cases as if the Gitmo prisoners are a homogenous group of generic suspects. Each case is different and each needs to be adjudicated individually.

Are you saying that open borders make sense in the aftermath of 9/11?


http://en.wikipedia.org/wiki/Combatant_Status_Review_Tribunal

German POWs
 

O.K. I guess my age can be deduced from this but .....
My father was a "4F" civilian who worked for the U.S. Army at Fort Dix (then Camp Dix) New Jersey during WW2. As a small child I sometimes went to work with him.
There were a large number of German POWs "incarcerated" at Camp Dix and I met many of them. They were used in many maintenance roles around the base such as grounds keepers and stable hands (yes, the cavalry still had a few horses back then). My recollection is that without exception, they were nice, friendly and trustworthy individuals. In fact they were not incarcerated at all but seemed to me had the run of the base, usually without the accompaniment of guards. They wore U.S. Army fatigue uniforms with POW stenciled across the back in large letters. It seemed they were pleased to be in the U.S.A., out of the war zone and being well treated but still longed for home.
Those are my recollections, but it was 60+ years ago.

Actually, there have been periodic 'combatant status review tribunals [not trials] that determine if a prisoner is safe to release [if a state can be found that is willing to take them]. This is in place of a general prisoner exchange at the end of a conflict [Armistice or Peace Treaty] with an enemy state.

Since these are not trials, there is no determination of guilt or innocence - despite how this may be presented in media reports. [News reports continue to use the language of criminal justice reporting ['suspect', 'alleged', 'trial', 'charges', 'guilt', 'innocence' when none of these words apply] ]

We have released detainees, and later recaptured them.
If we handled them in accordance with 'the laws and customs of war' we could do anything we like with them, from execution to indefinite incarceration without the protections of POW status. [Some of the requirements for the care of POWs are quite quaint, like the stipend that must be paid with due respect for the prisoner's rank]. A POW protection that is quite real is a POW's immunity from criminal prosecution.

If they are common crminals then they are indeed "cases" to be tried in court.

But if they are prisoners of war then they can legally be held as POW's until the cessation of hostilities, according to the Conventions of which we are signatories.

It looks to me like the previous and present administrations are foolish to try these people in court.

Just put them in POW camps until their confrere's give up the fight. That accords with the Geneva conventions regarding POW's.

After the cessation of hostilities they could be tried in court using the Nuremburg precedent.

Or use Lincoln's method -- summary execution on the field of battle. Who needs trials?

Or try them now using FDR's precedent established with the trial of the German saboteurs. Now that would be interesting, wouldn't it?

http://www.historynet.com/japanese-war-crime-trials.htm

But are they common criminals or POWs? I'm not convinced that they automatically fit under those descriptions.

Works for me.

I believe that your perspective is in-line with both Bush & Obama and I believe it is a mistake. Ambiguous definitions encourage ambiguity of purpose. The Conventions have essentially 3 categories: Combatants, noncombatants and criminals. Combatants are further subdivided into subcategories.

If they had simply chosen a category for each captive and treated them accordingly then we would not be into all this lawyerly crap.

If we had said "Screw the GC Crap, we wouldn't be in this position either. How did the GC help us in Nam, Korea, Iraq, Afghanistan? MAYBE, it was a good idea at the time but what is the point of a set of rules when only 1 side will even come close to adhering to them and the other side flaunts them at will? As I have asked before, will a ref come forward to give the other side a 10 yard unsportsmanlike like conduct penalty? If not, what is the point? Rules are only good if we can get general compliance on both sides. If not, why hamstring yourself?

The answer you have previously received, many times by many respondents, is that of basic human rights. Agree with it or not, that's what people say. And when that argument is made it is quickly followed by the assertion that human rights demand that the civilian courts are the proper venue for dealing with the captives.

They're either criminals or POW's. I don't care which and it certainly depends on the circumstances. Someone like Padilla would IMO be a criminal, whereas some Taliban guy with an AK-47 captured on the battlefield would be a POW. Again there's no such legal term as an "illegal enemy combatant". You do understand that, don't you? I know you don't like it, but that's irrelevant.

#19. Deal with it.

I think the problem is that we look on the flawed idea of "do unto others". We give people basic human rights because we are afraid that we won't get them if we don't. So as protection for ourselves, we give the others the same treatment in the hope that they reciprocate. In my case, I tend to look at the rules of the game as opposed to bringing the rules I want and play by them whether the other side does or does not because I want to feel superior to them. I think the issue is whether we believe in a strict interpretation of "do unto others" or whether we believe it is "Do unto others as you HOPE LIKE HELL they do unto you.". In my case, I see how they do us and I am perfectly content to do them back the same way.

How would he fit into the definition of POW? Al Qaeda is not really an authority that you can say the detainees can profess allegiance to. I mean, they are a loosely knit band that keep in contact with each other but they are detached units.

#19 says nothing that disagrees with what I said. Deal with it.