QUIRIN AND GENEVA

Quirin is a dead letter. It was a fishy decision to begin with, but the decisive
point is that it was rendered under a different set of laws than the laws in
effect today. The current Geneva Conventions were signed in 1949, and prior to
that there was no Geneva 4 civilians or ICCPR.

Geneva 3 & 4 are the ruling statutes now, by presidential authority and senate
ratification, and as required by the conventions, they are enforceable under 18
USC 2441. Whatever power the president or congress may have to take the measures
they have, it is clear under the constitution the president and senate also have
the power to make treaties which are binding on the US, which that is exactly
the circumstance with Geneva and the ICCPR.

- If you the read the decision, you'll find that it refers in many places to the
US Articles of War. The Articles of War were replaced in toto by the Uniform
Code of Military Justice after WW2, when congress unified the military under the
Department of Defense (The Navy and War Depts. merged to form DoD, and the Army
Air Corps became the USAF, with the Joint Chiefs administering all US forces as
a unified command). Some of that may be the same, but some may not.

- The decision is widely viewed as a very bad one.  The government presented
false evidence to the court, and president tampered with the court by
threatening to have the men shot if the Court ruled in their favor.

- The elements of the Quirin case bear very little similarity to any of the
cases at hand. For example, in 1942 the government did not ask the court to
authorize indefinite detention without a trial, nor did they pursue any such
course of action-- what they did was put them on trial and then carry out the
sentence: six were hung and two were sentenced to life.

The ultimate issue in Quirin was: did they get a fair trial? The court said they
did, the truth is they didn't, and only an idiot or a liar would claim the case
supports the administration's policy.

But Geneva is the decisive point. The history of the convention is of particular
interest here--- the administration is so very attached to matters of precedent
after all.

Quirin was handed down in 1942.  The Geneva convention in effect then was Geneva
3 POWs (1929).  There was no Geneva 4 Civilians as now, just a draft convention
(1934?)which had not been signed.  So civilians at that time (including spies as
in the Quirin case) would be covered by the Hague convention (1907).

The administration has made much of Article 4 of Geneva 3, which defines who is
a POW. This is the first branch of the GENEVA FORK. Whatever persons meet any
one of the eight stated categories is a POW under the convention. All other
persons are civilians who fall under both Geneva 4 and the ICCPR.

Geneva 3 Article 4 states:

  Article 4

  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, fulfill 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.

  3. Members of regular armed forces who profess allegiance to a government or
  an authority not recognized by the Detaining Power.

  (Etc.)


There is no ambiguity: the article states plainly that persons belonging to any
ONE category are POWs. The Taliban clearly fit 4(A.1). Most al-Qaeda captured in
Afghanistan fit 4(A.3). The administration insists that everyone must fit 4.2 as
if that were the only category, when in fact there are eight, and NONE of them
excludes anyone; each merely identifies a specific group that is entitled to POW
status under the convention. The administration's position is patently
fraudulent.

The corresponding article of Geneva POWs (1929) states:

  GENERAL PROVISIONS

  Article 1. The present Convention shall apply without prejudice to the
  stipulations of PartVII:

  (1) To all persons referred to in Articles 1, 2 and 3 of the Regulations
  annexed to the Hague Convention (IV) of 18 October 1907, concerning the Laws
  and Customs of War on Land, who are captured by the enemy.

At the time of Quirin Decision, these questions of status were under Hague
(1907) in toto, and the relevent articles state:

  Article 1. The laws, rights, and duties of war apply not only to armies, but
  also to militia and volunteer corps fulfilling the following conditions:

    To be commanded by a person responsible for his subordinates;

    To have a fixed distinctive emblem recognizable at a distance;

    To carry arms openly;

    and To conduct their operations in accordance with the laws and customs
    of war.

  In countries where militia or volunteer corps constitute the army, or form
  part of it, they are included under the denomination "army."

  Article 2. The inhabitants of a territory which has not been occupied, who,
  on the approach of the enemy, spontaneously take up arms to resist the
  invading troops without having had time to organize themselves in accordance
  with Article 1, shall be regarded as belligerents if they carry arms openly
  and if they respect the laws and customs of war.

  Article 3. 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.


So POW status is essentially the same as now. If there was any doubt, the
sentence...

In countries where militia or volunteer corps constitute the army, or form part
of it, they are included under the denomination "army."

...should have eliminated it: the present-day language is clearly just an
emphasis and expansion of the language here.

There is no category of illegal belligerents, there are only POWs under Genva 3
and Civilians under Geneva 4 & the ICCPR. Persons falling under either head
might also be persons accused of crimes; all such persons being entitled to both
due process and legal representation; and at the very minimum, under the same
laws and procedures as would apply to US military personnel.

The only pertinent exceptions are that POWs may be held for the duration of the
conflict, and they may not be tried for ordinary crimes committed during
military operations, but only for war crimes, in which case they are also
entitled to both legal representation and due process.

Geneva is binding, and to violate it is a criminal offense under US law.

NB: the Geneva Convention was adopted specifically to regulate the actions of
governments in exactly the circumstances of an armed conflict. Neither the
president nor the congress have any power to suspend or to violate the
convention, which was adopted by their predecessors exercising a fundamental
power of US sovereignty under the Constitution, to make treaties. The treaty
itself binds all signatories to observe and enforce it under all circumstances.



JOSE PADILLA, NAVAL BRIG CHARLESTON SC

They might be able to intern him legitimately as a POW, but only by actually
treating him as a POW, which they have so far refused to do in any case.

If the evidence is as they say it is, then they have to hold him somehow-- but
in that case Padilla is guilty of conspiracy and the administration is
obstructing justice.

If is is in fact a combatant, then and Geneva 3 makes it clear that they can do
so lawfully, but only a competent court may rule on that question. There are
substantial doubts both as to the evidence and to the administrations reading of
the law, which has every appearance of being a patent fraud.

Worst of all, their dishonest policies are ultimately a stupid waste of time and
energy: they should simply comply with the Geneva conventions, and the fact that
they're not complying is criminal under 18 USC 2441. Padilla is entitled to
legal representation under all circumstances, and the fact that the government
is clearly manipulating the situation to deny him legal representation is a
criminal offense under 18 USC 371 (conspiracy), 18 USC 1512 (obstruction of
justice), 18 USC 2441 (war crimes).


YASSER HAMDI, NAVAL BRIG NORFOLK VA

Hamdi should most likely be a POW most likely. Why he is in not in Guantanmo is
a mystery-- the government's actions simply do not add up. On the one hand, they
sometimes make distinctions between citizens and non-citizens. On the other,
they've made it clear that they think they can treat citizens the same as non-
citizens if they want to for some reason, and that they consider anything they
want to do a military necessity.


TALIBAN & AL QAEDA POWS, CAMP DELTA, NAVAL BASE GUANTANAMO BAY

Most of these prisoners are entitled to POW status. All are being denied the
basic rights regardless of their true classification, for the govenrment has
illegitimately declared them to fall into a category which simply has no legal
basis at all. Whatever the ultimate status of any prisoner may be, the
administration is guilty depriving them of their lawful rights, which is a war
crime under 18 USC 2441, and the administration's guilt is logically certain on
the strength of their own public statements.

Beyond that clear fact, there are also important considerations here which
significant ramifications in law, national policy, and diplomac beyond the
present case.

Political rhetoric or diplomatic fiction and pretence notwithstanding, al Qaeda
is in fact a pan-Islamic nationalist political movement that enjoys substantial
support.  By virtue of pursuing an armed conflict against them on a global scale
it cannot be denied that the United States has recognized them as such. It is
clear that al Qaeda represents "... a government or an authority not recognized
by the Detaining Power." [ Geneva 3 Art 4(A.3)].

Far from having commenced on 9/11/2002, we must also admit that the conflict
began with the first attack on the WTC. We need not agree with their aims or
their grievences, but is undeniable that they have them, and the Genva
Conventions do not address the motivations or the moral staus of anyone in an
armed conflict except to the extent that they authorize prosecution for crimes
by competent courts and due process of law.  The sole purpose of the convention
for over 130 years has been to ameliorate violence and suffering in times of
war.

The periodic emergence of such nationlist movements is by no means a novelty:
indeed, the American Revolution was a similar case, as was Bolivar's liberation
of South America, Garibaldi's unification of Italy, and Bismarck's unification
of Germany. This is all very old news by now.

In the particular case at hand, the United States and her allies are by no means
innocent of responsibility for the present conflict. Indeed, centuries of
colonialism and the artificial political boundaries imposed or abetted by the
colonial and post-colonial powers, including the United States, are a primary
source of the present disputes. The responsibility and guilt are very plain.

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