Article 5 of The 3rd Geneva convention provides that: “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.”

The US military has an instruction detailing what comprises a competent tribunal, what its procedures must be, what evidence it must consider, etc.

It is AR-190-B/OPNAVINST 3461.6/AFJI 31-304/MCO 3461.1 (depending on whether you’re in the Army, Navy, Air Force, or Marines)

You can link to it here:

http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf

These tribunals can make several possible determinations; that the individual is an enemy prisoner of war (EPW), that the individual is a member of the enemy’s medical or chaplain’s corp who may be retained but can not be considered a prisoner (RP or retained Personnel), that the person is a civilian internee who is detained for security reasons or for protection or because he’s committed an offense (CI), or an innocent civilian who should be released.

The tribunal can also determine the individual is not entitled to EPW status, but the only thing further the it has to say on their treatment is:

“Persons who have been determined by a competent tribunal
not to be entitled to prisoner of war status may not be executed,
imprisoned, or otherwise penalized without further proceedings to
determine what acts they have committed and what penalty should
be imposed. The record of every Tribunal proceeding resulting in a
determination denying EPW status shall be reviewed for legal sufficiency
when the record is received at the office of the Staff Judge
Advocate for the convening authority.”

That’s how it has always been done in this country, in any case, until the USSC’s horrible Boumediene decision. The Constitution gives no role in warmaking to the judiciary. The Congress has a Constitutional role. Determining who is and who is not an enemy combatant is a military function; even the Geneva convention acknowledges that. Therefore it comes under the authority of the President CinC.

But since the USSC has seen fit to carve out an extra-Constitutional role, and the other branches of government seem all right with it, now detainees can petition the court for a writ of habeas corpus, and let the court review the evidence upon which their status is based.

I fully agree with your points, I found them rather well argued and the cases you point out are clear-cut.

There is, of course, the problem of identifying enemy combatants correctly. Drawing the distinction between combatants and non-combatants simply elevates the problem one level: if you’re charged with being an enemy combatant, how do you prove that you aren’t one?

I agree with your last post.

“The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person WITHIN ITS JURISDICTION the equal protection of the laws.” These provisions are universal in their application, to all persons WITHIN THE TERRITORIAL JURISDICTION . . . ”

As I said, it is a longstanding rule of thumb that one acquires Constitutional protections and rights depending upon one’s level of attachment to the United States. A US citizen, resident alien, or alien here on a permanent visa enjoys full rights and protections. An alien here on a non-immigrant visa, somewhat less.

Your link doesn’t work, but I’ll take a WAG and say those Chinese aliens had arrived in the US and had developed some kind of connection with the US. It would be perfectly legitimate to say that they could have arrived here illegally, but with the intention of acquiring some sort of connection to the US, as nearly all illegal immigrants do.

But you CAN NOT acquire that connection by arriving in the United States only because you suffered some sort of failure while attacking it, with no intention of actually arriving here and acquiring that connection.

In WWII there were two Japanese naval personnel who arrived exactly that way.

One, a Petty Officer First Class Nishikaichi Shigenori crash landed his plane on the island of Niihau, an island with no communications with the outside world. He lived through the landing, but later during what became known as “The Niihau Incident” had to be killed by local Hawaiians when he, with the help of the only two residents of Japanese descent, one a citizen, on the island who armed themselves and attempted to kill or capture their neighbors.

Had he lived, would you have said he had Constitutional rights because he was on US soil? Remember; he was only on US soil because he had engine failure following the attack on Pearl Harbor.

The other case: Ensign Sakamaki Kazuo was commanding a two-man midget sub, launched from a larger fleet boat standing offshore, that failed to enter the harbor because it grounded on a reef. It was shelled by a destroyer which damaged its batteries. It briefly escaped but due to damage they had to abandon the boat and swim ashore. His crewman died and he was found passed out on an Oahu beach.

Would you have said he had Constitutional rights because he was on US soil? Remember; he was only on US soil because he had engine failure following the attack on Pearl Harbor.

He was not granted any such rights, by the by. He was our first Japanese POW.

Adbullmutallab arrived pretty much the same way; he only arrived on US soil because his attack failed. His bomb misfired. He had no intention of ever arriving here, unlike the Chinese nationals your case is referring to.

Had his plan worked, he never would have landed.

The only difference among the three examples is that the first two individuals were uniformed members of a foreign enemy. Who had not personally violated the laws of war during the attack, despite how badly their government fumbled the declaration of war. (Nishikaichi, had he lived, could have and undoubtedly would have been charged as a war criminal for his assault on the civilian population of Niihau. But a certain Mr. Ben Kanahele saved us all the trouble be picking the IJN aviator up and bashing the man’s brains out against a wall after Nishikaichi shot him in the chest, hip, and groin.)

If that’s the only difference, than according to the laws of war Adbullmutallab is entitled to fewer rights than the above two would have (and in the case of the one survivor, actually did) enjoy.

Abdullmutallab never had Constitutional rights while living in London, or Yemen, or Nigeria. He didn’t have Constitutional rights while in transit in Holland. He didn’t have Constitutional rights while over the Atlantic.

Yet he fails to destroy a plane over Detroit, and you want to give him Constitutional rights and a civil trial.

You obviously have a death wish, me. I don’t. But understand this; there is nothing you can point to that says the Constitution somehow requires that.

You’re going beyond any USSC ruling, even Boumediene v. Bush. Yes, the USSC ruled (unconstitutionally, because all warmaking powers lie in the executive branch & not the judiciary) that the detainees at GITMO had the constitutional right to petition the court for a writ of habeas corpus. But only to review the evidence that the government used to classify them as enemy combatants, so the court could decide if the evidence supported that classification.

If they ARE correctly classified as enemy combatants then they have no Constitutional rights. Despite the fact the USSC used the word “universal” when talking about rights applying even to Chinese aliens residing in the US.

OK?

Enemy combatants = NO Constitutional rights.

They can lawfully be held under the laws of war. Even the current USSC agrees.

“The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the emperor of China. . . . The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. . . . The questions we have to consider and decide in these cases, therefore, are to be treated as involving the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court.” (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=118&invol=356)

Item #2 still has me wondering – the law itself specifies in certain circumstances where and how it applies (ie to citizens (in the case of voting as you point out), residents or, well, humans). What is currently happening is that these prescriptions (ie: this is a right the founders assigned as inalienable to all humans) are ignored, which is the thing I object to. So – if the laws prescriptions itself are not a guide to when laws should be applied, how should we make decisions about which laws apply to whom?

Item #3 – I have quite a few issues with the “It’s a war” argument. There is a body of laws that applies in that case as well; the obvious reductio-ad-absurdum argument here is: if we decide to make war on traffic accidents (statistics argue that that would be a worthy cause indeed), would it be appropriate to shoot people involved in an accident on the spot or torture them to find out who’s really at fault?

“And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people. It makes sure that people who can demonstrate their innocence aren’t punished by the state. There are obvious disadvantages in locking away or murdering people based on an unproven assumption of guilt. Compared to that, the disadvantages of applying the existing justice system are negligible. What rectifies circumventing due process for these individuals on a systemic basis?”

Uhh, let me see, oh yeah . . . national security!

We do have a perfectly functional civilian justice system for trying cases of ordinary murder, even when it comes to murder by organized crime syndicates. We do not when it comes to terrorism, which is an act of war.

Civilian courts can not and will not protect national security. Because once you make the absurd decision to try a foreign combatant in a civilian court the rules of discovery are entirely different than in a military tribunal. You have just vested that foreign combatant with all the rights of a US citizen. In a civilian trial, the government must turn over any evidence it has supporting a charge to the accused. That means a civilian attorney without a security clearance. Or, if the accused exercises his right to represent himself himself, to the accused himself. Which really makes no difference because that evidence must be presented in court where it becomes public information.

The government must then decide whether to withhold discovery to protect national security, thus having the particular charge based on that information thrown out, or turn over intelligence vital to national security to the very people we are trying to keep it from. Not just the defendant, but the enemy organization with combatants in the field.

It’d be like turning over our “magic” information to a Japanese POW during a public trial at the height of WWII.

You just don’t have that problem in a military court. Because in a military court the evidence is examined by a military lawyer with the requisite security clearance on his client’s behalf. The client has no right to represent himself under the rules of courts martial. A military tribunal is under no obligation to turn over information vital to national security to any defendant not cleared for it. They MUST make that information available to defense counsel, but not the defendant. And it does not become public.

The military system of justice is not a second rate system. It is the system that those who serve the country are subject to. It protects the Constitutional rights of citizens, but unlike the civil system and those on this board who don’t know what they are talking about, it does not grant Constitutional rights to non-citizens who don’t have them. It is a first rate system of justice, equal to the civil system, but unlike the civil system it also protects national security. And it meets the standard of justice required by the geneva convention.

“First, the enemy combatant/no constitutional rights approach has been applied to US citizens.”

Yes, it has. For decades at least. One of the German spies captured infiltrating Long Island during WWII was a US citizen. He did appeal to the court, but the court correctly ruled that he was an enemy combatant. Thus subject to the law of war and not US law. Hence, no Consitutional rights despite his status as a US citizen. He was executed by the military.

“The rights in question here are affirmed to be unalienable to human beings by the constitution that is so shockingly ignored in all of this.”

We’re probably ignoring that tidbit because you’ve got the wrong founding document there, me. It is the Declaration of Independence that declares certain rights inalienable; life, liberty, and the pursuit of happiness.

The rights enumerated in the Bill of Rights, are the rights of citizens that the government is obligated not to infringe. They do not belong to non-citizens, depending upon there level of attachment to the United States.

But hey, if you doubt me, if you really believe that the rights “in question”, i.e. enumerated in the Constitution, are inalienable to all human beings and not just citizens, then perform my little experiment.

Ask a friend in the US on a non-immigrant visa (student, tourist, work, etc.) to go in to a gun store to exercise his 2nd Amendment right (a right just as made just as inalienable “to human beings by the constitution” as the 1st, 4th, 5th, or 6th) to buy a gun. Follow him in and watch.

See what happens. Then come back and report.

By the way, don’t feel bad about confusing the Declaration of Independence with the Constitution. Barack “Constitutional Law Professor” Obama made the same mistake in the STFU address when he said it was the Constitution that states “all men are created equal.” And that went through several levels of review before the Prez screwed the pooch on national television. So apparently no one in the administration, from the speechwriter to the top guy, knows the difference.

Sorry, “ambiguous” — it should be taken from context that I mean that natural born citizens at the least (and probably any and all citizens, including naturalized ones) should be inherently exempt from any and all exceptions it makes to normal protections given all members of society.

And which I will support you in decrying to the hilt. I believe one of the chief flaws of the Patriot Act is that it does NOT apply only to non-citizens, particularly non-naturalized citizens — i.e., people born here. Like the RICO stats, it opens itself up to a vast array of abuses, being purportedly for the purpose of getting at terrorists(mobsters), but having such a vague “definition” of such that it could be applied in a lot of other circumstances.

> Secondly, US law (and, for that matter, the international law of other countries) applies to non-citizens of the countries in which crimes are committed. You don’t see many foreign citizens buglarizing the airport stores in La Guardia and getting away with it.

Okay, this is a patently ridiculous argument. That the law “applies” to them in a general sense does not mean that EVERY law applies, or in the exact same way. There are a host of laws which do NOT apply — the rules for legally being allowed to vote, for example, would be a ridiculously obvious one. There are other exceptions, both explicit (the law provides a direct alternative for non-citizens) and implicit (no one has seen fit to make a direct alternative because no one has challenged it, even though it clearly cannot apply — use of a passport/visa papers in place of a legally required locally-issued ID card, for example).

> And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people.

You Just Don’t Get It.

These people are not out to MURDER citizens. The motivation is different. It’s not personal gain they seek, it’s not an effort to hide some embarrassing fact or other from public scrutiny.

THEY ARE OUT TO DESTROY THE COUNTRY.

They are enemies of the body politic, not just someone who happens to get in their way of some other goal.

Geez, how dense can you be?

THIS IS WAR, not CRIME.

Murder pretty much cannot be justified (“self defense” is not murder). Killing in war can be. Ergo — the actions are not the same, though they are **physically** indistinguishable.

Solutions appropriate for criminal acts are not necessarily appropriate for acts in war. How is that blatantly and inherently obvious fact not totally “DUH!” to you?

First, the enemy combatant/no constitutional rights approach has been applied to US citizens.

Secondly, US law (and, for that matter, the international law of other countries) applies to non-citizens of the countries in which crimes are committed. You don’t see many foreign citizens buglarizing the airport stores in La Guardia and getting away with it.

Thirdly, the constitutions makes a very clear distinction between the rights of citizens and the rights of human beings regardless of citizenship. (Oddly enough, a canadian au-pair still has rights)

The rights in question here are affirmed to be unalienable to human beings by the constitution that is so shockingly ignored in all of this.

And, last but not least, we have a perfectly functional (if not perfect) justice system to deal with people who kill other people. It makes sure that people who can demonstrate their innocence aren’t punished by the state. There are obvious disadvantages in locking away or murdering people based on an unproven assumption of guilt. Compared to that, the disadvantages of applying the existing justice system are negligible. What rectifies circumventing due process for these individuals on a systemic basis?