Dog Brothers Public Forum
Return To Homepage
Welcome, Guest. Please login or register.
September 22, 2014, 05:31:24 AM

Login with username, password and session length
Search:     Advanced search
Welcome to the Dog Brothers Public Forum.
82568 Posts in 2250 Topics by 1062 Members
Latest Member: seawolfpack5
* Home Help Search Login Register
+  Dog Brothers Public Forum
|-+  Politics, Religion, Science, Culture and Humanities
| |-+  Politics & Religion
| | |-+  Legal Issues created by the War with Islamic Fascism
« previous next »
Pages: 1 ... 5 6 [7] 8 9 10 Print
Author Topic: Legal Issues created by the War with Islamic Fascism  (Read 72298 times)
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #300 on: April 04, 2011, 11:42:01 AM »

Khalid Shaikh Mohammed to Be Tried by Military Commission at Guantánamo, in Reversal

In a major reversal, the Obama administration has decided to
try Khalid Sheikh Mohammed for his role in the attacks of
Sept. 11 before a military commission at Guantánamo Bay,
Cuba, and not in a civilian courtroom.

Attorney General Eric H. Holder Jr. is expected to announce
on Monday afternoon that Mr. Mohammed, the self-described
mastermind of the attacks, and four other accused
conspirators will face charges before a panel of military
officers, a law enforcement official said. The Justice
Department has scheduled a press conference for 2 p.m.
Eastern time.

Mr. Holder, who had wanted to prosecute Mr. Mohammed before a
regular civilian court in New York City, changed his mind
after Congress imposed a series of restrictions barring the
transfer of Guantánamo detainees into the United States,
making such a trial impossible for now, the official said.

Read More:
http://www.nytimes.com?emc=na
Logged
G M
Power User
***
Posts: 12042


« Reply #301 on: April 04, 2011, 12:22:42 PM »

What? Obama didn't close Gitmo? 


Where are Rogt and Milt?
Logged
G M
Power User
***
Posts: 12042


« Reply #302 on: April 04, 2011, 01:28:39 PM »

http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/

  Sec. 7. Military Commissions.  The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

___________________________________________________________

This brings me to the fourth step in my strategy: I will make clear that the days of compromising our values are over.

Major General Paul Eaton had a long and distinguished career serving this country. It included training the Iraqi Army. After Abu Ghraib, his senior Iraqi advisor came into his office and said: "You have no idea how this will play out on the streets of Baghdad and the rest of the Arab world. How can this be?" This was not the America he had looked up to.

As the counter-insurgency manual reminds us, we cannot win a war unless we maintain the high ground and keep the people on our side. But because the Administration decided to take the low road, our troops have more enemies. Because the Administration cast aside international norms that reflect American values, we are less able to promote our values. When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again.

I also will reject a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America's courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

Remarks of Senator Obama: The War We Need to Win
Washington, DC | August 01, 2007
Logged
G M
Power User
***
Posts: 12042


« Reply #303 on: April 04, 2011, 01:44:40 PM »

....For Obama's flip-flops.

http://politicalticker.blogs.cnn.com/2011/04/04/gitmo-tribunal-move-the-latest-in-a-long-line-of-obama-shifts/
Logged
Body-by-Guinness
Power User
***
Posts: 2788


« Reply #304 on: April 12, 2011, 01:29:17 PM »

Detention, Interrogation, and Targeted Killing, and a Conference at Penn
Kenneth Anderson • April 12, 2011 10:58 am

The LA Times has a good story on the complete backing away of the CIA from any new detentions or interrogations in counterterrorism under the Obama administration (though it started back under the Bush administration).  It describes a general paralysis of policy, frozen among a variety of government actors wary of doing anything that might restart the detention wars of the Bush administration.  It’s a well reported piece by Ken Delanian, April 10, 2011.

The U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say.

The little-known case highlights a sharp difference between President Obama’s counter-terrorism policy and that of his predecessor, George W. Bush. Under Obama, the CIA has killed more people than it has captured, mainly through drone missile strikes in Pakistan’s tribal areas. At the same time, it has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.

“The CIA is out of the detention and interrogation business,” said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly.


The article goes on to discuss the policy paralysis underlying this condition.  But I want to add one caution.  The article says, as I and many others have argued would take place over time given the incentives not to detain people, that the Obama administration uses targeted killing.

Despite having made exactly this point myself many times, it bears noting that there are plenty of independent reasons for using targeted killings in many situations — avoiding detention is almost certainly far less important than the current meme suggests.  Even if there were some protocol for detaining and interrogating people, there are plenty of circumstances in which seeking to capture is too risky and other operational reasons.  More interesting is that the article’s main focus is on a person captured by Indonesia from a CIA tip, not targeted with a missile.  Even in that case, in which it is not a choice between targeted killing and detention, the CIA still does not want custody, even though the article says that experts believe that the CIA could get far more and better information if it controlled the detention and interrogation process.  This is far from an ideal situation, of course.

While on the topic of targeted killing and drone warfare, let me point readers to a conference at University of Pennsylvania Law School this weekend, a joint effort among lawyers, philosophers, diplomats, and national security and military personnel.  It’s an impressive lineup, and you can even get CLE credit, I believe.  (I’ve put the announcement below the fold.)

I’ll be talking at the Penn conference about an ethical tension between jus in bello and jus ad bellum.  Targeted killing through drones results (I will take by assumption) in less civilian damage in the category of jus in bello.  According to a common argument made today, however, that greater “efficiency” in jus in bello considerations thereby makes resort to force by the United States too easy, as a jus ad bellum matter, and indeed possibly “inefficient.”  Why?  According to this argument, the lack of personal risk to US personnel in drone warfare lowers to an inefficient level the disincentives upon the US to use force.

I have many problems with this argument. But I do think it’s an interesting one from a philosophical perspective, because even if the jus in bello and jus ad bellum considerations are not strictly inconsistent, there is at least substantial tension between them.  Moreover, the ideas of “efficiency jus in bello” and “efficiency jus ad bellum” are interesting all on their own, even if I think that particularly the idea of an efficient level of violence, or an efficient level of incentives and disincentives to resort to force, premised around personal risk to US personnel, is deeply incoherent.  But the incoherency seems to me to take part in an even deeper, and still more wrong, idea that an “efficient level of resort to force” can be extracted independent of the idea of “sides” in war with incommensurate ends.

I’m not a philosopher, though, and find all this philosophy stuff difficult.  So I have been careful to load up my remarks with a lot of practical stuff about where, on the basis of my conversations, reading, discussions, etc., with lots of different folks, both targeted killing and drone warfare are likely to go.  The conference has a great lineup of experts from many fields, however — so even if my remarks are a big miss, in good conscience I can still highly recommend it to you.

http://volokh.com/2011/04/12/detention-interrogation-and-targeted-killing-and-a-conference-at-penn/
Logged
G M
Power User
***
Posts: 12042


« Reply #305 on: April 13, 2011, 08:14:42 AM »

Is the Biggest Terror Catch on President Obama's Watch Slipping Away?
 
By Catherine Herridge
 
Published April 12, 2011 | FoxNews.com
 


 
The Bali Nightclub bombing which killed more than 200 nearly a decade ago was one of the worst terrorist attacks to come after 9-11.
 
A tip from the CIA has now led to the capture in Pakistan of Umar Patek, an Indonesian national described as an alleged facilitator of the attack, and who is considered one of the world's most wanted terrorists.
 
Though Patek is arguably the highest value detainee picked up on President Obama's watch, there was no public comment from the White House on efforts to question him.
 
“I don’t have anything to say in response to that from here,” White House Spokesman Jay Carney told Fox News.
 
With no confirmation that Patek is being interrogated by U.S. intelligence agencies, critics of the Obama Administration say an opportunity to gain real time intelligence is being lost for good.
 
“This guy survived in a sanctuary in the Philippines for almost a decade,” Marc Thiessen, a visiting fellow at the American Enterprise Institute and author of the book “Courting Disaster” told Fox News. “And all of a sudden he emerged from his sanctuary to meet with al-Qaeda leaders. This guy knows something and we need to find out what he knows.”
 
Thiessen, who served under President George W. Bush, as well as other analysts say a larger issue is at play.
 
In the summer of 2009, the Obama administration put an end to the controversial CIA interrogations. Critics said the CIA program amounted to torture.
 
In its place, the high value interrogation group or HIG, was set up at the FBI, but it was not even used to question the alleged underwear bomber in December 2009.
 
Former CIA officer Phil Mudd says continuing litigation over the interrogation programs is making the agency and others risk averse.
 
“There are a lot of inquiries into CIA black sites,” Mudd said in reference to the CIA’s secret prisons where detainees were interrogated under the controversial program. “So the CIA got out of the business of holding detainees.”


Read more: http://www.foxnews.com/politics/2011/04/12/biggest-terror-catch-president-obamas-watch-slipping-away/
Logged
bigdog
Power User
***
Posts: 2165


« Reply #306 on: April 13, 2011, 04:51:17 PM »

http://opiniojuris.org/2010/12/15/still-a-bad-idea-military-commissions-under-the-obama-administration/

Still a Bad Idea: Military Commissions Under the Obama Administration
by David Glazier

David Glazier is a Professor of Law at Loyola Law School in Los Angeles.  He has written, under the same title as this post, a paper critiquing U.S. military commissions which you can download from SSRN here.

As the Senate considers an outright ban on the transfer of detainees from Guantánamo to the United States this week, it seems obvious that many proponents intend that this will lead to military commission trials of “high value” detainees held there. Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic “convictions” at Guantánamo, the myth that military commissions are a superior forum for trying terrorists inexplicably persists. The media spin on the recent federal trial of Ahmed Ghailani has further fueled this erroneous perception. Although Ghailani, who is not a high-level al Qaeda figure, now faces the real possibility of life in a supermax prison, critics and mainstream media describe the case as a “near acquittal” rather than the substantial victory it represents. Despite popular perceptions to the contrary, it is the military commissions which pose the much higher risk of failure in terrorism trials. The commissions have serious legal flaws which provide a number of grounds on which any convictions they render may be overturned, their ad hoc courtroom proceedings have regularly proved embarrassing to objective observers, and the controversy generated by their continued use will predictably have adverse consequences for U.S. national interests.

All five completed commission cases have involved highly questionable applications of substantive law. While the Military Commission Acts of 2006/2009 define offenses the commissions can try, they depend on these being pre-existing war crimes to avoid both U.S. constitutional and international prohibitions on ex-post facto crime creation when applied to detainees who were already in custody when the laws were passed. Yet virtually all LOAC experts agree that the primary offenses charged to date, conspiracy and providing material support to terrorism, are not crimes that can validly be prosecuted by a law of war tribunal. Omar Khadr was charged with additional offenses, including murder in violation of the law of war which could be war crimes in ordinary conflict scenarios, but not as applied to him. Three of the five cases – those of David Hicks, Ibrahim al Qosi, and Khadr – were resolved by plea deals in which the defendants had to waive all right to appeal even though that is forbidden by the court-martial practice on which the commissions are supposed to be based, so their infirmities will not be subject to appeal. Salim Hamdan, in contrast has appealed his conviction but although he has been free for almost two years, his case has still not even gotten through the first tier Court of Military Commission Review (CMCR), mocking the idea that military judges will administer justice more efficiently than their civilian counterparts. Although Ali al Bahlul refused to allow his attorney, David Frakt, to mount any defense on his behalf at all, Frakt nevertheless preserved some issues for appeal that also have yet to be decided at any level. The MCA provides for cases surviving the CMCR to be heard by the regular Court of Appeals for the D.C. Circuit, with the potential for both Supreme Court consideration as well as collateral review once direct appeals are complete. So these cases will be litigated for years to come.

While the substantive law issues alone should be sufficient to both overturn these past cases and derail many future charges, there are a slew of additional issues stemming from unique aspects of the commission process that provide additional grounds for challenge which are wholly lacking from federal trials. Key World War II precedents, for example, only uphold the authority of military officers to convene law of war commissions in the theater of their command and try violations committed during the interval from the “declaration of war” until the conclusion of a final peace treaty. It is thus questionable as to whether any pre-9/11 conduct can validly be tried by the commissions. There is also reason to doubt that a civilian official without any command authority can perform the multiple roles assigned the convening authority thousands of miles removed from the “theater” in which the conduct took place.

There are numerous other flaws including the inability of the defendants to select counsel they trust, the tribunals’ reliance on over-classification practices, use of evidence obtained through coercion despite the statutory ban on doing so, and lack of equal access to witnesses and flawed discovery processes that collectively undermine the ability of defendants to mount credible defenses. The use of substandard tribunals to try aliens which we are wholly unwilling to submit our own nationals to is entirely unprecedented in the history of U.S. military justice and provides the potential basis for an equal protection challenge. If reviewing courts are committed to justice, any of these flaws by themselves could form the basis for overturning convictions. Collectively they will undermine the credibility of any verdicts returned, chilling counter-terrorism cooperation by our friends and allies, while fueling recruitment and fund raising by our adversaries.

The Ghailani trial in contrast, saw the application of recognized charges and rulings that time in military custody does not violate speedy trial timelines and that detainee abuse does not require dismissal on the basis of outrageous government conduct. Although a district court decision is without formal precedential value, it is predictable that other federal judges would reach the same result. The idea that military commission rules offer any legitimate advantage over federal courts is simply wrong. While Ghailani’s judge did exclude one witness the government desired to use on the basis that he had been identified through coercive interrogation, military commission rules should have produced the same result. In general, military commission rules for handling classified information are now very closely based on those used in federal courts, while issues such as battlefield intelligence collection concerns are total red herrings – the Supreme Court holds the 4th Amendment inapplicable outside the U.S.

Logged
G M
Power User
***
Posts: 12042


« Reply #307 on: April 13, 2011, 05:01:07 PM »

The idea of trials in the first place is stupid. They have no rights. AQ exists outside of civilization and deserves none of it's protections.
Logged
G M
Power User
***
Posts: 12042


« Reply #308 on: April 13, 2011, 05:09:35 PM »


Hostis Humani Generis definition:
 Latin: the enemy of mankind.

Just as they have no rules in waging war against us, we should have no rules in dealing with them.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #309 on: April 14, 2011, 10:18:29 AM »

THEY may not deserve any better, but it serves us to stay who we are, yes?
Logged
G M
Power User
***
Posts: 12042


« Reply #310 on: April 14, 2011, 10:21:56 AM »

Stay who we are? You mean overlegalized and to timid to fight a total war to ensure our survival?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #311 on: April 14, 2011, 08:49:30 PM »

I agree with Guro Crafty here, even if he says this disingenuously (and I can't tell if he is playing "devil's advocate" here).  If the United States wants to survive, IMHO we need to survive by following that which made us great to begin with.  We, as a nation, have espoused the tenets of liberty worldwide.  If we fight for democracy, and we have, than we must necessarily fight for the protections for all. 
Logged
G M
Power User
***
Posts: 12042


« Reply #312 on: April 14, 2011, 09:40:11 PM »

War is not a legal procedure. We didn't seek indictments for Hitler and Tojo. Truman didn't seek a legal opinion before dropping nukes on Japan.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #313 on: April 14, 2011, 09:57:55 PM »

No intention to be disingenuous here; I'm just saying that while it may momentarily feel good to say "If they have no rules, then we have no rules" IMHO this

a) is wrong
b) does not work as well as having something higher for which we fight, which informs how we fight.

If I may anticipate an argument GM may be tempted to make, this does not mean I am in accord with pussified legalistic claptrap.
Logged
G M
Power User
***
Posts: 12042


« Reply #314 on: April 14, 2011, 10:09:07 PM »


INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.

http://avalon.law.yale.edu/19th_century/lieber.asp#sec4

SECTION IV
Partisans - Armed enemies not belonging to the hostile army - Scouts - Armed prowlers - War-rebels
Art. 81.
Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.

Art. 82.
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

Art. 83.
Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

Art. 84.
Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

Art. 85.
War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #315 on: April 14, 2011, 10:17:20 PM »

Truly and without any sarcasm whatsoever I say that that is quite fascinating-- and legally irrelevant.  Since the Civil War, things have changed quite a bit.  For example, we are now signatories to the Geneva Convention.
Logged
G M
Power User
***
Posts: 12042


« Reply #316 on: April 14, 2011, 10:21:21 PM »

And al qaeda signed the conventions when?
Logged
G M
Power User
***
Posts: 12042


« Reply #317 on: April 14, 2011, 10:41:43 PM »

How terrorists were dealt with by FDR
Excerpts from Roosevelt's Secret War: FDR and World War II Espionage, Joseph E. Persico, 2001.



On June 19 [1942] the President received an excited call from Francis Biddle, his attorney general. Six days before, Biddle told the President, "at 1:30 A.M. an unarmed Coast Guard patrolman near Amagansett, Montauk Point, Long Island, discovered two men placing material in a hole they had dug; one of them covered the patrolman with a gun, gave him $260 and told him to keep his mouth shut. I shall, of course, keep you informed." As J. Edgar Hoover's nominal boss, Biddle later recalled the FBI chief's demeanor while describing the plan to track down the rest of the saboteurs: "His eyes were bright, his jaw set, excitement flickering around the edge of his nostrils," Biddle remembered. The question now was how much to tell the public. Hoover wanted no announcement that might alert the men still at large. The President agreed, and the press was, for the moment, frozen out of the story.

FDR's longstanding preoccupation with sabotage now seemed validated. Biddle admitted, "1 had a bad week trying to sleep as I thought of the possibilities. The saboteurs might have other caches hidden, and at any moment an explosion was possible." [Saboteur] Dasch had, in fact, revealed that, along with their transportation and industrial targets, the Pastorius mission was supposed to spread terror by placing firebombs in department stores and delayed-action explosives in hotels and in crowded railroad stations.

On June 27, ten days after the Kerling team landed in Florida, the President, then at Hyde Park, took another call from Biddie. Hoover's G-men had seven of the saboteurs in custody and were about to arrest the last one. Nearly $174,000 of their Abwehr stake had been seized. FDR responded with the habitual geniality that Biddle, a stiff Philadelphia Main Liner, envied. "Not enough, Francis," Roosevelt said. "Let's make real money out of them. Sell the rights to Barnum and Bailey for a million and a half --- the rights to take them around the country in lion cages at so much a head." Now the tale could be told, and in the ensuing publicity, Coast Guardsman Cullen became a national hero. Hoover played the capture of the ring as a case solved by the FBI, making no public mention of the fact that Dasch had turned himself in and squealed on his comrades.

Three days after all eight saboteurs were in custody, FDR sent Biddle a memo making clear his expectations. "The two Americans are guilty of treason," he told the attorney general. "I do not see how they can offer any adequate defense. . . it seems to me that the death penalty is almost obligatory." As for the six German citizens, "They were apprehended in civilian clothes. This is an absolute parallel of the Case of Major [John] Andre in the Revolution and of Nathan Hale. Both of these men were hanged." The President hammered home his point once more: "The death penalty is called for by usage and by the extreme gravity of the war aim and the very existence of our American govemment." Biddle had never quite overcome his awe in dealing with FDR. Still, the nation's chief law enforcement official was troubled, finding himself trapped between the President's questionable pressure and his own reverence for the law. The Germans had been apprehended so quickly, Biddle recognized, that "they had not committed any act of sabotage. Probably an indictment for attempted sabotage would not have been sustained in a civil court on the grounds that the preparations and landings were not close enough to the planned acts of sabotage to constitute attempt. If a man buys a pistol, intending murder, that is not an attempt at murder." In a civilian court the Germans might at best be convicted of conspiracy, which Biddle estimated would carry a maximum sentence of three years. This outcome, he knew, would never satisfy Roosevelt.

FDR essentially took charge of the case. He told Biddle that he wanted the eight agents tried, not in a civilian court, but by a military tribunal, which he himself would appoint. They had forfeited any right to a civilian trial, as Roosevelt put it, because "[t]hese men had penetrated battlelines strung on land along our two coasts and guarded on the sea by our destroyers, and were waging battle within our country." They fell under the Law of War. A military tribunal would be quick, not subject to the protracted appeals procedures of civilian courts. It would not be hog-tied by the criminal courts' exacting rules of evidence. It could impose the death sentence, not as the civil courts required, by a unanimous verdict, but by a two-thirds vote. A military tribunal offered the advantages and the assured outcome that the President wanted. A civilian court was out of the question. FDR told Biddle, "I want one thing clearly understood, Francis: I won't give them up . . . I won't hand them over to any United States Marshall armed with a writ of habeas corpus. Understand!" Averell Harriman, FDR's special envoy to Moscow, had once described Roosevelt's "Dutch jaw -- and when that Dutch jaw was set you couldn't move him." Biddle practically felt the jaw's thrust, and dutifully followed the President's instructions. Conviction should be simple, Biddle promised FDR, since "[t]he major violation of the Law of War is crossing behind the lines of a belligerent to commit hostile acts without being in uniform."

The British, early in the war, had imposed the traditional penalty on captured spies and saboteurs, execution. Seven arrested German agents were hanged with numerous others awaiting the gallows within months of the war's outbreak. Then, in 1940, a thirty-year-old Scottish major, energetic, articulate, imaginative Thomas A. "Tar" Robertson, assigned to MIS, proposed a new approach. What use to Britain were German spies moldering in anonymous graves? he asked his superiors. Instead, make an offer to them, turn or die. Thus was born the Double Cross, or XX, operation whereby most captured spies chose turning to dying. Some became double agents and sent false information back to Germany under British control. In other cases, British radiomen mastered "the fist," the distinctive sending style of these agents, and convincingly transmitted Double Cross fabrications to Germany. Double Cross was a rousing success. Only one German spy is believed to have reached Britain during the war without being caught. The alternative of turning the eight captured Germans never entered FDR's head. Their deaths were to serve notice to the Nazis of the certain fate of any other spies and saboteurs sent to America.

On July 2 the President announced that the eight accused would stand trial before a military commission composed of seven generals, and they would be charged with violating the eighty-first and eighty-second Articles of War dealing with espionage, sabotage, and conspiracy. Court-appointed lawyers for the defendants made a game effort to move the trial to a civilian court, taking the constitutional issue all the way to the Supreme Court, but the justices backed the legality of a military tribunal. Biddle himself was to prosecute, an unusual move, having a civilian serve as prosecutor in a military proceeding. But FDR was taking no chances. The Army's Judge Advocate General was rusty and had not tried a case for over twenty years. FDR wanted his own man before the bar.

On June 8 the prisoners, held in the District of Columbia jail, were shaved by prison barbers, lest they put the razor to their own wrists or throats, and hustled into two armored vans guarded by gun-toting military police. Nine Washington motorcycle patrolmen roared alongside, escorting the vans to the Department of Justice. Enterprising vendors soon were doing a thriving business selling ice cream and hot dogs to the crowds that gathered outside the department's iron gate every day to gawk at the enemy. The trial was held in Assembly Hall # 1 on the fifth floor of the Justice Department, the windows shrouded by black curtains. As the trial opened, Hoover, sitting next to Biddle, fed pages of evidence to the attorney general. During a recess, one of the defendants asked the presiding general for a cigarette. The general responded stuffily that Army regulations made no provision for such a request. A disgusted Hoover took out a pack of cigarettes and handed it to the German.

In twenty-six days it was over. All eight were sentenced to death. The generals sent their verdict to the President. Roosevelt, acting, in effect, as the court of last resort, confirmed six of the death sentences, but commuted Burger's sentence to life and Dasch's to thirty years for their willingness to betray their comrades. August 8 was set for the executions, which would take place in the electric chair on the third floor of the District of Columbia jail. Eight weeks had elapsed from the night the first saboteurs had landed on Long Island.

On execution day, FDR was at Shangri-la [now Camp David] , the presidential hideaway in western Maryland's Catoctin Mountains. The President liked to sit in the small screened porch playing solitaire or gazing by the hour out at the Catoctin Valley, lost in his private thoughts. This evening, he gathered his guests around him in the living room -- Sam Rosenman and his wife, Dorothy, Daisy Suckley, Grace Tully, poet Archibald MacLeish and his wife, Ada. The First Lady was tied up in New York. The President settled into an easy chair and seemed in unusually fine fettle. He commenced his ceremonial role, mixing the cocktails. He was conceded to make a fine martini and an old-fashioned, though lately he had become enamored of a drink made of gin and grapefruit juice, which most guests found vile. As he mixed, he swapped jests with Rosenman and MacLeish while Daisy snapped photos.

Once more Rosenman was impressed by FDR's gift for shedding the cares of office after hours, as if flipping a switch somewhere inside himself The President began reminiscing about his days in the governor's office in Albany where Rosenman had served as his legal counsel, recalling stories of appeals for clemency on the eve of executions. Sam marveled at FDR's memory, down to dates, places, offenses, and names of the condemned in a dozen New York capital cases. The President then segued into an Alexandre Dumas story about a barber who, during the 1870 siege of Paris, supplied delicious beef while thousands were starving. Gleefully, FDR related how a number of the barber's clients had turned up missing, and the "veal" was suspected of originating in the barber's chair.

What prompted FDR's black humor this evening went unspoken until Dorothy Rosenman raised the subject. The six condemned Nazi saboteurs had been electrocuted beginning at one minute past noon. By 1:04 P.M., the work was completed, an average of ten and a half minutes per man. One witness reported that they had gone to their deaths stunned, as if in a trance. Where, Mrs. Rosenman asked the President, would the bodies be buried? He had not yet decided, FDR answered. His only regret was that they had not been hanged. He then launched into a story about an elderly American woman who died while visiting Moscow and had accidentally been switched in a casket meant for a deceased Russian general who was shipped back to the States. When her family complained, the Russian government cabled back, "Suggest you close the casket and proceed with the funeral. Your grandmother was buried in the Kremlin with full military honors." The saboteurs were subsequently buried in a potter's field near Washington.

Was the evening of gallows humor Roosevelt's true mood or intended to mask the hard decisions he had had to make about six human lives? Mrs. Rosenman's firsthand account describes nothing but Roosevelt's humor and relaxed manner, but then, he was a consummate actor. In any case, the country was with him. Telegrams poured into the White House mail room. One read, "It's high time that we wake up here in this country and show the world we are not a bunch of mush hounds." It was signed, "Mother who has three loyal sons in the Army." The Victory Committee of German American Trade Unionists telegraphed the President, "We endorse the imposition of the death penalty on any saboteur or traitor. We know that no loyal German American need have the slightest fear providing he obeys the laws of the country." On Ellis Island, the execution of the six Germans was observed differently. Adolph G. Schickert and Erich Fittkau, Germans interned there, held a meeting of other internees. They announced the death of their countrymen, called for two minutes of silence, and then led the singing of the rousing Nazi anthem, the "Horst Wessel Lied."
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #318 on: April 15, 2011, 01:21:44 AM »

That AQ and the Taliban are not signatories is, IIRC, irrelevant.  We are.

IIRC there is language about irregulars in their own country fighting foreigners so the German spy case may not be on point.
Logged
G M
Power User
***
Posts: 12042


« Reply #319 on: April 15, 2011, 07:29:33 AM »

So, are you morally/legally/ethically bound to use "friends at the end of the day" rules when subject to violent criminal assault on the street?

Logged
G M
Power User
***
Posts: 12042


« Reply #320 on: April 15, 2011, 08:12:22 AM »

http://www.heritage.org/research/projects/enemy-detention/armed-conflict-and-the-geneva-conventions

Pre-Geneva Conventions and the Law of War

This section briefly summarizes the historical antecedents to the Geneva Conventions, the protections the Conventions provide to prisoners of war (POWs), the application of these protections to the current conflict, and the questions yet to be resolved concerning application of the Conventions to changed circumstances.
The United States and its coalition partners are engaged in a war against al-Qaeda and the Taliban, their affiliates, and their supporters. Under the law of war, a country at war has the legal authority to detain individuals who have engaged in combatant actions, including unlawful belligerence, until hostilities end. This basic principle is widely accepted around the world. And since 9/11, the United States Supreme Court has upheld the right of the United States to detain enemy combatants for the duration of the conflict.
In order to understand the United States' legal position in this war, it is important to understand what the Geneva Conventions require, do not require, cover, and do not cover. This section covers the history of the Geneva Conventions, the protections that the Conventions provide to prisoners of war (POWs), how those protections apply in the current conflict, and the future of the Conventions in a changing world.
Before the Geneva Conventions
 The law of war is that part of international law which regulates the conduct of armed hostilities. The law of war encompasses all international law for the conduct of hostilities that is binding on the United States and its citizens. It includes treaties and other international agreements to which the United States is a party.
The Geneva Conventions are a relatively new phenomenon in the history of warfare. Until the mid-19th Century, agreements or treaties on how to fight wars, if they existed at all, were bilateral agreements between powers at war. The agreements were specific only to the current conflict and varied from conflict to conflict.
The idea for a codification of laws regulating armed conflict originated with a citizen of Switzerland, named Henry Dunant.
In the United States, the policy of treating captured soldiers humanely began during the Revolutionary War, well before the first Geneva Convention. General George Washington, head of the Continental Army, adopted a series of policies regarding the care and treatment of prisoners of war. Those policies included a prohibition against the denial of quarter -- that is, a prohibition on refusing to take captured enemy soldiers as prisoners.
This policy led eventually to the establishment of the Lieber Code of 1863, which dictated how soldiers should be treated during a time of war. It was named for the German-American jurist Francis Lieber, and it greatly influenced the further codification of the laws of war and the adoption of similar regulations by other states. The year after its adoption, an international convention on the laws of war was presented to the Brussels Conference, which in turn stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.
The International Committee of the Red Cross (ICRC) website presents a more detailed account of the development of the Geneva Conventions.
The Geneva Conventions
The Geneva Conventions codify laws regulating armed conflict and the humane treatment of prisoners of war and are a recent development in the history of war. Prior to the Conventions, agreements or treaties on the conduct of war tended to be bilateral agreements between warring powers. The agreements were applicable only to a specific conflict and the standards varied widely.
The four Geneva Conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals during wartime. The first Convention covers soldiers wounded on the battlefield; the second covers sailors wounded and shipwrecked at sea; the third covers prisoners of war; and the fourth covers civilians taken by an enemy military.
 Only nation states may become parties to international treaties. First, the state must sign the treaty and the treaty must be ratified. Second, the state must consent to be bound by the treaty. Today, 194 countries are parties to the Conventions and enjoy protections in return for compliance with its terms. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.
Parties to the Conventions enjoy protections if they follow their rules. Entities that are not party to the Conventions, by definition, may be denied the privileges extended to parties to the Conventions.
In addition to the treaty ratification requirements, Article 4 of the Third Geneva Convention protects prisoners of war if the combatant satisfies four additional pre-conditions. To enjoy the protections of the Convention as a prisoner of war (POW), a combatant must satisfy four conditions:

Be commanded by a person responsible for his subordinates;
Have a fixed distinctive sign recognizable at a distance;
Carry any weapons openly; and
Conduct operations in accordance with the laws and customs of war.

 If you would like to read more about Article 4, click here to access the website of the International Committee of The Red Cross.
POWs, the Geneva Conventions, and al-Qaeda
Since 9/11, much if not most of the policy debate has centered on whether POW status applies to members of al-Qaeda and the Taliban.
Al-Qaeda is neither a country nor a lawful ruling party of a convention signatory. By definition, al-Qaeda members cannot be protected by the Geneva Conventions when fighting on behalf of al-Qaeda, whether or not they follow the law of war, such as wearing appropriate uniform. When captured, al-Qaeda fighters have no international law basis to claim prisoner of war status and are not entitled to protections under the Third Geneva Convention.Taliban fighters require a slightly different analysis. Afghanistan did sign the Geneva Conventions on August 12, 1949, and it ratified the Conventions onSeptember 26, 1956. As such, Afghanis may be covered by the Conventions. Further, despite that the United States and the international community did not officially recognize the Taliban as a legitimate government, it was at least arguably the ruling party in Afghanistan from 1996 until 2001, when it was ousted from power by a U.S.-led international coalition.
Nonetheless, the Taliban did not satisfy the remaining Article 4 pre-conditions discussed above. Referring to a presidential finding, a White House spokesperson described the reasons why the Taliban were not entitled to prisoner of war status:
The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.

Notwithstanding this determination, the President and military leaders decided in 2003 that the U.S. would treat captured members of al-Qaeda and the Taliban "consistent with the principles of the Geneva Convention," affording these detainees the protections and benefits of the Conventions despite their failure to abide by them as combatants.
Future Developments
This new phenomenon of non-state actors capable of global reach and lethality has led some to question whether the Geneva Conventions are outdated and in need of modification.
When the Geneva Conventions were written, wars were typically state-on-state conflicts. In the parlance of the law of war, those conflicts were of an "international character." Wars between parties of the same country -- civil wars -- are called conflicts "not of an international character." The Geneva Conventions cover both types of conflicts.
 But September 11, 2001 changed everything. The horrific attacks perpetrated by al-Qaeda were of a scale, magnitude, and level of sophistication previously achieved only by nation states.
In April 2006, then-UK Defense Secretary John Reid called for a review of the Geneva Convention on the treatment of prisoners of war. According to Reid, "We risk trying to avoid 21st-century conflict with 20th-century rules, which when they were devised did not contemplate the type of enemy which is now extant."
Recently, John Bellinger, the U.S. State Department's top lawyer, suggested that the Geneva Conventions may need to be updated. The United States is "absolutely committed" to the Geneva Conventions, said Bellinger, but the "Geneva Conventions do not give you answers about who can be held in a conflict with a non-state actor.... They do not tell you how long you can hold someone in a conflict with a non-state actor." Echoing Reid's comments, John Bellinger said the Geneva Conventions "were designed in 1949 for different sort of circumstances, and they don't provide easy answers in all cases to how to deal with international terrorists."
Logged
bigdog
Power User
***
Posts: 2165


« Reply #321 on: April 15, 2011, 01:52:29 PM »

War is not a legal procedure. We didn't seek indictments for Hitler and Tojo. Truman didn't seek a legal opinion before dropping nukes on Japan.

Nuremberg Trials?  Milosevic?  Pinochet?  The fact that President Andrew Johnson pardoned thousands of CSA soldiers implies that there was the potential for indictment.  And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you.
Logged
G M
Power User
***
Posts: 12042


« Reply #322 on: April 15, 2011, 02:48:55 PM »

"And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you."

Because we have become such a legalistic society, beyond the point of reason.

Nuremberg Trials?

You think those were military tribunals were more than a "victor's justice"?

Milosevic?

That goat-rope of a trial was saved by his untimely death. You want that to be looked at as an example?

Pinochet?

Another mess of a trial ending with no verdict.

"The fact that President Andrew Johnson pardoned thousands of CSA soldiers implies that there was the potential for indictment."

As they were US citizens that made war against the US, I'm sure that they potentially could have been tried for that. However, to the best of my knowledge, only one confederate officer was court-marshaled for the brutal treatment of Union prisoners in his custody after the southern defeat.

How's those war crimes trials working out for the atrocities in Darfur?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #323 on: April 15, 2011, 08:41:52 PM »

"And, the fact that the Office of Legal Counsel was utilized so much in the wake of 9/11 means that the Bush administration would disagree with you."

Because we have become such a legalistic society, beyond the point of reason.

Just because you think that war SHOULDN'T be subject to law does not be that war IS not subject to law.  And that was your original claim.
Logged
G M
Power User
***
Posts: 12042


« Reply #324 on: April 16, 2011, 03:22:32 AM »

Don't we decide what laws we do or do not apply to ourselves as a nation?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #325 on: April 16, 2011, 05:41:57 AM »

Don't we decide what laws we do or do not apply to ourselves as a nation?

Yep.  And that is why we are signatories to many treaties, why lawyers play a role in war, and why our military has a code of conduct in times of war and peace.  We are, after all, a nation of law not of men. 
Logged
G M
Power User
***
Posts: 12042


« Reply #326 on: April 16, 2011, 05:48:45 AM »

And as stated many times before, al qaeda is not a party to any treaty we've signed, right?
Logged
G M
Power User
***
Posts: 12042


« Reply #327 on: April 16, 2011, 06:11:36 AM »


http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A59781-2004Feb21&notFound=true

Legal Disputes Over Hunt Paralyzed Clinton's Aides

By Steve Coll
Washington Post Staff Writer
Sunday, February 22, 2004; Page A17

Between 1998 and 2000, the CIA and President Bill Clinton's national security team were caught up in paralyzing policy disputes as they secretly debated the legal permissions for covert operations against Osama bin Laden in Afghanistan.

The debates left both White House counterterrorism analysts and CIA career operators frustrated and at times confused about what kinds of operations could be carried out, according to interviews with more than a dozen officials and lawyers who were directly involved.

There was little question that under U.S. law it was permissible to kill bin Laden and his top aides, at least after the evidence showed they were responsible for the attacks on U.S. embassies in Africa in 1998. The ban on assassinations -- contained in a 1981 executive order by President Ronald Reagan -- did not apply to military targets, the Justice Department's Office of Legal Counsel had previously ruled in classified opinions. Bin Laden's Tarnak Farm and other terrorist camps in Afghanistan were legitimate military targets under this definition, White House lawyers agreed.

Also, the assassination ban did not apply to attacks carried out in preemptive self-defense -- when it seemed likely that the target was planning to strike the United States. White House and Justice Department lawyers debated whether bin Laden qualified under this standard as well, and most of the time agreed that he did.

Clinton had demonstrated his willingness to kill bin Laden, without any pretense of seeking his arrest, when he ordered the cruise missile strikes on an eastern Afghan camp in August 1998, after the CIA obtained intelligence that bin Laden might be there for a meeting of al Qaeda leaders.

Yet the secret legal authorizations Clinton signed after this failed missile strike required the CIA to make a good faith effort to capture bin Laden for trial, not kill him outright.

Beginning in the summer of 1998, Clinton signed a series of top secret memos authorizing the CIA or its agents to use lethal force, if necessary, in an attempt to capture bin Laden and several top lieutenants and return them to the United States to face trial.

From Director George J. Tenet on down, the CIA's senior managers wanted the White House lawyers to be crystal clear about what was permissible in the field. They were conditioned by history -- the CIA assassination scandals of the 1970s, the Iran-contra affair of the 1980s -- to be cautious about legal permissions emanating from the White House. Earlier in his career, Tenet had served as staff director of the Senate Intelligence Committee and director of intelligence issues at the White House, roles steeped in the Washington culture of oversight and careful legality.

Tenet and his senior CIA colleagues demanded that the White House lay out rules of engagement for capturing bin Laden in writing, and that they be signed by Clinton. Then, with such detailed authorizations in hand, every one of the CIA officers who handed a gun or a map to an Afghan agent could be assured that he or she was operating legally.

This was the role of the Memorandum of Notification, as it was called. It was typically seven or eight pages long, written in the form of a presidential decision memo. It began with a statement about how bin Laden and his aides had attacked the United States. The memo made clear the president was aware of the risks he was assuming as he sent the CIA into action.

Some of the most sensitive language concerned the specific authorization to use deadly force. Clinton's national security aides said they wanted to encourage the CIA to carry out an effective operation against bin Laden, not to burden the agency with constraints or doubts. Yet Clinton's aides did not want authorizations that could be interpreted by Afghan agents as an unrestricted license to kill. For one thing, the Justice Department signaled that it would oppose such language if it was proposed for Clinton's signature.

The compromise wording, in a succession of bin Laden-focused memos, always expressed some ambiguity about how and when deadly force could be used in an operation designed to take bin Laden into custody. Typical language, recalled one official involved, instructed the CIA to "apprehend with lethal force as authorized."

At the CIA, officers and supervisors agonized over these abstract phrases. They worried that if an operation in Afghanistan went badly, they would be accused of having acted outside the memo's scope. Over time, recriminations grew between the CIA and the White House.

It was common in Clinton's cabinet and among his National Security Council aides to see the CIA as too cautious, paralyzed by fears of legal and political risks. At Langley, this criticism rankled. The CIA's senior managers believed officials at the White House wanted to have it both ways: They liked to blame the agency for its supposed lack of aggression, yet they sent over classified legal memos full of wiggle words.

Clinton's covert policy against bin Laden pursued two goals at the same time. He ordered submarines equipped with cruise missiles to patrol secretly in waters off Pakistan in the hope that CIA spotters would one day identify bin Laden's location confidently enough to warrant a deadly missile strike.

But Clinton also authorized the CIA to carry out operations that legally required the agency's officers to plan in almost every instance to capture bin Laden alive and bring him to the United States to face trial.

This meant the CIA officers had to arrange in advance for detention facilities, extraction flights and other contingencies -- even if they expected that bin Laden would probably die in the arrest attempt. These requirements made operational planning much more cumbersome, the CIA officers contended.

In fashioning this sensitive policy in the midst of an impeachment crisis that lasted into early 1999, Clinton's national security adviser, Samuel R. "Sandy" Berger, struggled to forge a consensus within the White House national security team. Among other things, he had to keep on board a skeptical Attorney General Janet Reno and her Justice Department colleagues, who were deeply invested in law enforcement approaches to terrorism, according to senior officials involved.

As the months passed, Clinton signed new memos in which the language, while still ambiguous, made the use of lethal force by the CIA's Afghan agents more likely, according to officials involved. At first the CIA was permitted to use lethal force only in the course of a legitimate attempt to make an arrest. Later the memos allowed for a pure lethal attack if an arrest was not possible. Still, the CIA was required to plan all its agent missions with an arrest in mind.

Some CIA managers chafed at the White House instructions. The CIA received "no written word nor verbal order to conduct a lethal action" against bin Laden before Sept. 11, one official involved recalled. "The objective was to render this guy to law enforcement." In these operations, the CIA had to recruit agents "to grab [bin Laden] and bring him to a secure place where we can turn him over to the FBI. . . . If they had said 'lethal action' it would have been a whole different kettle of fish, and much easier."

Berger later recalled his frustration about this hidden debate. Referring to the military option in the two-track policy, he said at a 2002 congressional hearing: "It was no question, the cruise missiles were not trying to capture him. They were not law enforcement techniques."

The overriding trouble was, whether they arrested bin Laden or killed him, they first had to find him.
Logged
bigdog
Power User
***
Posts: 2165


« Reply #328 on: April 16, 2011, 08:17:09 AM »

And as stated many times before, al qaeda is not a party to any treaty we've signed, right?

Nope, but there are still legal limits to the ways of war.  And the fact that war (its declaration, its funding, its commander in chief) has role in the Constitution (the highest LAW of the land) should tell you that law does, in fact, play a role in war... even if you don't like it. 
Logged
G M
Power User
***
Posts: 12042


« Reply #329 on: April 16, 2011, 10:20:24 AM »

Nope, but there are still legal limits to the ways of war.

What laws of war did the N. Koreans and Chinese observe in the Korean war? What consequences did they suffer for their treatment of US POWs?

Explain the legal logic where we can't use a hollowpoint bullet on an enemy soldier, but we can launch ICBMs that burn entire cities off the map.
Logged
bigdog
Power User
***
Posts: 2165


« Reply #330 on: April 16, 2011, 01:28:27 PM »

Nope, but there are still legal limits to the ways of war.

What laws of war did the N. Koreans and Chinese observe in the Korean war? What consequences did they suffer for their treatment of US POWs?

Explain the legal logic where we can't use a hollowpoint bullet on an enemy soldier, but we can launch ICBMs that burn entire cities off the map.


GM, I am not a lawyer.  The fact that our enemies do not follow is no reason for us not to.  There is a reason why they are the enemy.  And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance. 
Logged
G M
Power User
***
Posts: 12042


« Reply #331 on: April 16, 2011, 01:40:50 PM »

"The fact that our enemies do not follow is no reason for us not to."

Why? This is chanted over and over again like it's a article of faith. There are pragmatic reasons to treat enemy prisons of war well when we are fighting a nation-state's military. There are also pragmatic reasons to not provide those same protections to those who are not honorable soldiers, such as al qaeda.

"And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance." 

Al qaeda enjoys constitutional protections? Then Hellfire missile strikes constitute a violation of 42 USC 1983 per Graham v. Connor.
Logged
bigdog
Power User
***
Posts: 2165


« Reply #332 on: April 16, 2011, 02:00:08 PM »

"The fact that our enemies do not follow is no reason for us not to."

Why? This is chanted over and over again like it's a article of faith. There are pragmatic reasons to treat enemy prisons of war well when we are fighting a nation-state's military. There are also pragmatic reasons to not provide those same protections to those who are not honorable soldiers, such as al qaeda.

"And your relunctance to follow the Constitution except when you find it convenient is pretty damning to your stance." 

Al qaeda enjoys constitutional protections? Then Hellfire missile strikes constitute a violation of 42 USC 1983 per Graham v. Connor.

You refuse to argue the issue, GM.  The reason is because, as I've said, if we fight for freedom, liberty, the expansion of democracy and the like, then we have to be the world's exemplar.  If we fail to illustrate the benefits of freedom, etc. then there is no reason for us to fight.  And, if we are fighting without staying true to the tenets we claim to be fighting for, then we, as a free nation, are no longer fighting... we are just another country in the world.  Also, if we take issue with others mistreating our soldiers, and we do and SHOULD, then we should treat others well.  That pesky leading by example thing. 

As I've said, but you refuse to read, acknowledge, or understand, is that the Constitution binds and describes when it comes to war.  And, since the highest law of the land helps to limit the methods of fighting a war, then your argument that law and war don't mix is full of holes that an ICBM could fly through.
Logged
G M
Power User
***
Posts: 12042


« Reply #333 on: April 16, 2011, 03:37:35 PM »

Would you fight differently in a dojo with a fellow martial artist than you would in a life and death fight on the street? Would the need to "set an example" mandate that you fight by "friends at the end of the day" rules despite that your assailant/s is/are trying to stab you to death in a home invasion?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #334 on: April 16, 2011, 03:55:02 PM »

I like that you continue to refuse to stick to the subject at hand.  There are still laws that you are bound by in your examples, GM.  If there is a home invasion, there are still acceptable levels of force.  I couldn't subdue someone who entered my home with ill intent, put them in my basement and beat them daily for years.  I couldn't address the issue, and then go to their house and invade it.  I couldn't be so mad at them that I broke into someone's house in the their neighborhood. 

Why do you refuse to acknowledge that law binds actions in war?  Constitution, statute, Supreme Court opinions all do, have and were intended to impact the ways that wars are fought.  Stick to the subject, GM. 
Logged
G M
Power User
***
Posts: 12042


« Reply #335 on: April 16, 2011, 04:14:08 PM »

"As I've said, but you refuse to read, acknowledge, or understand, is that the Constitution binds and describes when it comes to war."

ARTICLE 1, SECTION 8
The Congress shall have Power:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;  

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;  

To provide and maintain a Navy;  

To make Rules for the Government and Regulation of the land and naval Forces;  

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;  

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....


ARTICLE 1, SECTION 9


The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

ARTICLE II, SECTION 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.

I don't see anything there that says that al qaeda gets constitutional protections.
Logged
bigdog
Power User
***
Posts: 2165


« Reply #336 on: April 16, 2011, 04:28:01 PM »

The Constitution is not the only document or law that relates to war, but it does... and I am so glad you found the relevent Articles and sections.  And, since you did that, it is clear that you now agree that war is impacted by law, which is what you alleged. From GM: "War is not a legal procedure."  But, war is EXACTLY a legal procedure.  Congress legally raises an army.  The president is legally the commander in chief.  ONLY Congress can legally suspend habeus corpus, and ONLY then in specific circumstances.  There is a legal process by which treaties are made.  That is the WHOLE point that I have been trying to get you to acknowledge.
Logged
G M
Power User
***
Posts: 12042


« Reply #337 on: April 16, 2011, 04:34:12 PM »

So, everyone in the world enjoys constitutional protections? Hawaiian police officers should have attempted to arrest Admiral Yamamoto for various felonies committed at Pearl Harbor?
Logged
G M
Power User
***
Posts: 12042


« Reply #338 on: April 16, 2011, 04:54:14 PM »

Does everyone in the world have habeus protections? Could German POWs have petitioned the courts during WWII to be released back to Germany? They were not criminally charged (the vast majority, at least).
Logged
bigdog
Power User
***
Posts: 2165


« Reply #339 on: April 16, 2011, 06:41:08 PM »

So, everyone in the world enjoys constitutional protections? Hawaiian police officers should have attempted to arrest Admiral Yamamoto for various felonies committed at Pearl Harbor?

Everyone in the federal government is bound by the Constitution.  I think you are aware that there is a different beween the federal and state governements.  Can you illustrate to me Hawaiian police have federal jurisdiction, or is this yet another straw man question in a long line of them?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #340 on: April 16, 2011, 06:44:27 PM »

Does everyone in the world have habeus protections? Could German POWs have petitioned the courts during WWII to be released back to Germany? They were not criminally charged (the vast majority, at least).

You showed me the relevent places in the Constitution, GM.  Are you trying to backtrack?  Your statement was that war is not a legal procedure.  I've illustrated otherwise.  Deal with it. 
Logged
G M
Power User
***
Posts: 12042


« Reply #341 on: April 16, 2011, 06:45:40 PM »

Are you moving the goal posts because you cannot defend your position or do you not understand my point?
Logged
G M
Power User
***
Posts: 12042


« Reply #342 on: April 16, 2011, 06:47:51 PM »

The declaration of war may be a legal procedure, but the fighting of the war is not. Or is a USMC sniper shooting enemy troops that have not fired at him murdering innocent victims?
« Last Edit: April 16, 2011, 07:23:53 PM by G M » Logged
G M
Power User
***
Posts: 12042


« Reply #343 on: April 16, 2011, 07:24:58 PM »


http://www.mikelief.com/archives/001342.html

August 31, 2007

Our GIs fear lawyers more than death

The rules of engagement under which our troops fight represent the unrealistic -- some might say insane -- belief that wars can be fought in a surgical, antiseptic fashion. This expectation is risible, propounded only by politicans who have never served in harm's way and academics who have never studied military history.

Blogger Herschel Smith puts the current dysfuntional rules in historical prespective, before turning to a real-world example of how bad things have become for our fighting men.


A recent Washington Times commentary gives us food for thought concerning application of rules of engagement in combat action in Afghanistan.


Now that Marcus Luttrell’s book “Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of Seal Team 10″ is a national bestseller, maybe Americans are ready to start discussing the core issue his story brings to light: the inverted morality, even insanity, of the American military’s rules of engagement (ROE).

On a stark mountaintop in Afghanistan in 2005, Leading Petty Officer Luttrell and three Navy SEAL teammates found themselves having just such a discussion. Dropped behind enemy lines to kill or capture a Taliban kingpin who commanded between 150-200 fighters, the SEAL team was unexpectedly discovered in the early stages of a mission whose success, of course, depended on secrecy. Three unarmed Afghan goatherds, one a teenager, had stumbled across the Americans’ position.

This presented the soldiers with an urgent dilemma: What should they do? If they let the Afghans go, they would probably alert the Taliban to the their whereabouts. This would mean a battle in which the Americans were outnumbered by at least 35 to 1. “Little Big Horn in turbans,” as Marcus Luttrell would describe it. If the Americans didn’t let the goatherds go — if they killed them, there being no way to hold them — the Americans would avoid detection and, most likely, leave the area safely. On a treeless mountainscape far from home, four of our bravest patriots came to the ghastly conclusion that the only way to save themselves was forbidden by the rules of engagement. Such an action would set off a media firestorm, and lead to murder charges for all.

It is agonizing to read their tense debate as Mr. Luttrell recounts it, the “lone survivor” of the disastrous mission. Each of the SEALs was aware of “the strictly correct military decision” — namely, that it would be suicide to let the goatherds live. But they were also aware that their own country, for which they were fighting, would ultimately turn on them if they made that decision. It was as if committing suicide had become the only politically correct option. For fighting men ordered behind enemy lines, such rules are not only insane. They’re immoral.

The SEALs sent the goatherds on their way. One hour later, a sizeable Taliban force attacked, beginning a horrendous battle that resulted not only in the deaths of Mr. Luttrell’s three SEAL teammates, but also the deaths of 16 would-be rescuers — eight additional SEALS and eight Army special operations soldiers whose helicopter was shot down by a Taliban rocket-propelled grenade.

“Look at me right now in my story,” Mr. Luttrell writes. “Helpless, tortured, shot, blown up, my best buddies all dead, and all because we were afraid of the liberals back home, afraid to do what was necessary to save our own lives. Afraid of American civilian lawyers. I have only one piece of advice for what it’s worth: If you don’t want to get into a war where things go wrong, where the wrong people sometimes get killed, where innocent people sometimes have to die, then stay the hell out of it in the first place.”

It might have been that firing on the goatherds would have divulged their position to the enemy. But assuming the accuracy of the scenario given to us above, i.e., it is possible for Luttrell and his team to have killed the goatherds and avoided the combat caused by divulging their position, then a different choice should have been made in this instance.

Another complicating factor is that the Luttrells’s team could only surmise that the goatherds would give away their position. They could not know with absolute certainty. In the end, they were right in their suspicion, but either way, the moral of the story is that in such situations certainty is not possible and thus should not be required.

[N]o one wants to see teams of U.S. forces hamstrung by rules that are made out to be rigid and inflexible when taught to them, but which cannot possibly be applied that way in a broken and complex world. Latitude and professional judgment should be the order of the day.

Unfortunately, politicians and lawyers have forced the troops into the unbelievable position of choosing death and defeat over survival and victory. Because death in battle is preferable to dishonor in a court of law.
Logged
bigdog
Power User
***
Posts: 2165


« Reply #344 on: April 16, 2011, 09:42:07 PM »

Are you moving the goal posts because you cannot defend your position or do you not understand my point?

That's what I've been asking you GM.  You can't simply admit that what you said was wrong. 
Logged
G M
Power User
***
Posts: 12042


« Reply #345 on: April 16, 2011, 09:48:40 PM »

Perhaps I misunderstand, because congress and the president have constitutional authority related to war, then the battlefield is a legal process? Do enemy combatants have due process rights to not have an air strike called upon them?
Logged
bigdog
Power User
***
Posts: 2165


« Reply #346 on: April 16, 2011, 09:50:06 PM »

The declaration of war may be a legal procedure, but the fighting of the war is not. Or is a USMC sniper shooting enemy troops that have not fired at him murdering innocent victims?

If fighting the war is not a legal procedure then explain Rules of Engagement, the Uniform Military Code of Justice, the legality (or not) of the draft, the constitutional questions that arose from fighting the Barbary pirates (or the Mexican American War; or the Civil War; or the..........................................................).  Legal questions have abounded during US wars from the time of the founding, based on questions of constitutionality and legality.

And the USMC sniper is bound by law.  And you know that.
Logged
G M
Power User
***
Posts: 12042


« Reply #347 on: April 16, 2011, 10:19:43 PM »

Do those enemy combatants have due process rights?
"And the USMC sniper is bound by law.  And you know that."

Earlier on, I posted the orders the Union troops were given from Pres. Lincoln regarding their conduct in the civil war, remember? Where illegal combatants could be treated as pirates if captured by Union forces. That means executed without due process/POW status.
Logged
G M
Power User
***
Posts: 12042


« Reply #348 on: April 16, 2011, 10:21:42 PM »

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office, 1863, Washington 1898: Government Printing Office.

http://avalon.law.yale.edu/19th_century/lieber.asp#sec4

SECTION IV
Partisans - Armed enemies not belonging to the hostile army - Scouts - Armed prowlers - War-rebels
Art. 81.
Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.

Art. 82.
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.


Art. 83.
Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

Art. 84.
Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

Art. 85.
War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 31260


« Reply #349 on: April 17, 2011, 12:42:53 AM »

I am enjoying being a fly on the wall for this one smiley
Logged
Pages: 1 ... 5 6 [7] 8 9 10 Print 
« previous next »
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.19 | SMF © 2013, Simple Machines Valid XHTML 1.0! Valid CSS!