About power:
It depends on the wants of people. Competition of evolution. Morality is ruled on simply by, what works properly. I would think Amoral behavior would be counterproductive to evolution, physics or life so ultimatey it is the losing side. Laws sometimes are referred to as religion as well.

I think we could have easily dealt with large militant groups (I am not going to bring up the 'terrorist' word since it's too watered down) outside of the Iraq since they didn't seem to be wholey there in the first place. I don't think the U.S.A., Great Britain, or even Germany and the U.N. could have done it but our cooperation together now like with Iran that is getting the job done with the help of smaller more nimble groups like the International Atomic Agency which has done a great job outside of the U.N. Maybe the problem was that people from all sides didn't give these groups as much a chance as they deserved or we were too mass kingdom-centric at the time.

About War. I am tending toward S.M. Stirling's side in that War is pretty straight forward with not allot of breathing room, but am not sure about his barbarism definition. If we start acting like the loosing side meaning cheap tactics and sadism, that never wins in the end overall it's the side that stabilizes and brings relative peace that doesn't do these things; ugliness and all. The most barbaric sides are the sides that usually lose or can't hold a stable government. You can be barbaric in your tactics but overall you have to be quite sane to hold a stable kingdom.
Hilter is a decent example of this as far as sane vs insane kingdom.
So usually we take the good vs evil out of this. The side that was destined to win and wants overall peace etc.
Usually in the end they look at least slightly better then the losing side. That's how gaming works. If a team looses usually most people find a reason that they did and it makes allot of logical sense. I don't by too much into the 'Any Given Sunday' theory but some of it's true but not overall.

I do believe in the rule of law but unfortunately it's hard to compete when everyone is fixated on just the U.S.A. and just the U.N.. They have the bigger guns sure but that's what's troublesome because they are so few. When the U.S.A. and a few other countries Law is the only law, that's dangerous. That's why I am ringing the non-profit bell lately so loud. They have websites and are gaining allot of power and there are thousands of them, it just seems a better system to me in a high tech world.
The states are to large and homogeneous. They need to be consolidated. Too many agencies too large.

--“But it's not a matter of breaking laws, it's a matter of being captured taking up arms against the US, as an unlawful combatant. “

Also depends on if allot of people agree with the U.S.'s idea of war. A terrorist hasn't been defined properly and it can't anyway, since it's such a broad stroke.

Andrew G:

I agree, maybe breakup the Politics topic subjects to, History and Philosophy.

Michael:

--“Well, I'm not a lawyer, thus by Steve's rules unqualified to express an opinion on American civics, but I had always understood that the courts decide the constitutionality of law, and that America is a government of law, not a personality cult. I don't think the President is supposed to be above the law. If he believes a law is unconstitutional, he should challenge it in court like anyone else. “

I agree that the other branches should have check, but alas it's not a perfect system and the President has many built in overriding powers. Maybe we can replace Bush and get a calmer person in there to remove more power from the government but the Terrorism issue for them still is important. How will they deal with it? Do you think a large bureaucracy can handle something like that. I would rather depend on open source software and a free Internet to do the job of protecting me online. We can still have police and local government I guess.

--"What's so special about States that they get a free pass to fight whoever they want?"

----“Because they can. To what higher authority are you appealing?”

The original concept of the King was power on loan from God.
I do think the concept of open standards is important though in limiting overall power

I just noticed the Addendum about the Denbeaux reports.

I consider them to be misleading. Yes, it's true that "Fifty-five percent of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies." Read the report and you'll see that many of them are in custody simply because they're members of al Qaeda, the Taliban, or an affiliate.

It's also true that "Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% have no definitive affiliation with either al Qaeda or the Taliban. Well, a bunch of them were members of other nasty groups.

The Denbeauxs released a second report where they were shocked -- shocked -- that some of those other groups were not even on the Homeland Security watch lists. That doesn't mean those other groups are nice guys.

There are a few detainees that we could legitimately argue should have been released. I don't think Denbeauxs' papers lend any support to that argument.

IANAL. Sometimes that's a caveat. Sometimes it's a badge of honor.

Randy: "Bush didn't invent that procedure. There's no reason he should move slower than his predecessors. If there's a problem with this then it should have been addressed in prior administrations."

Perhaps when a president declares the right to indefinitely imprison anybody without trial, people check out what else he's doing, and care more about it.

One problem I find with the idea of a War on Terror is that "Terror" isn't an entity. As a rhetorical device, as our cultural analogue of jihad, in the same general sense of a struggle against something, sanctioned ethical framework, it makes sense. But it's not the sort of war which governments are fighting on our behalf.

The US Government is applying the legal forms of a war between state-like entities with one breath, taking away the legal structures of criminality, and then declasres that its enemies, because they are not the soldiers of a state-like entity, denies them the legal structures surrounding war.

And the Geneva Conventions, while they don't define legal precedures, do lay out the basic process of how a person shopuld be judged. And a large part is a reaction to the events of WW2, and the behaviour of the defeated Axis powers in occupied territories. It's a reaction to Hitler's "commando order", which led to the murder of uniformed soldiers. It's a reaction to the dirty war against partisans.

It's not about protecting unlawful combatants, it's about protecting everyone else from being mis-classified.

The Generva Conventions don't tell you how to run your criminal justice system, or how to run your prisons, but you can't treat the enemy worse than you do your own people.

It took American tanks in Munich, Britsh tanks in Hamburg, Russian tanks iN berlin, before the German war criminals could be tried.

I don't know if Bush, or Rear Admiral Harris, is guilty of war crimes, but whose tanks will need to be on the White House lawn before any trial?

Dave,

One thing that struck me when going through the Geneva Conventions is how it's phrased specifically for the nations to respect each other while not respecting pirates at all. In that light it's difficult to see how they would have wanted Geneva to apply. But that doesn't mean it automatically defaults back to civilian law.

Oddly enough, I knew Rear Admiral Harris when I was in the Navy. I didn't know him that well, but I do remember him as a serious officer who went by the book. GTMO is lucky to have him, and anyone who truly cares about human rights should rest easier knowing he's there. He's not doing anything illegal, and he'd get that trial you speak of only if somehow the fascists win.


Barry,

A president's war-time powers are considerable. Lincoln had no legal authority whatsoever to free the slaves in peacetime. At war, he did.

Keeping an eye on politicians is something we can both agree on.

Randy, I think the key area is the status of civilians in occupied territories, a category which seems to cover many people who ended up in Gitmo.

It's how you get from the default status of being entitled to protection, either as a civilian or as a soldier, that matters.

There's no doubt in my mind that the 9/11 hijackers were pirates--that's established international law on hijacking aircraft, which allows all nations the jurisdiction to try them. Extending that to terrorists in general isn't a huge leap. Likewise, the idea of a terrorist being classed as an "unlawful combatant" isn't really new. As a label, it has some meaning.

But BushCo seems to have come up with a new category and a new lack or procedure that completely bypasses the fundamental idea of the Geneva Conventions and the rest.

Why wasn't the idea of a trial, or trial-like process, on the table from the very first day?

Edited by author 06-14-2006 07:13 AM
Dave,

There was a process of sorts. Keep in mind that thousands were captured in Afghanistan. Only some of them were taken to GTMO. The rest were locked up and then transferred into the new Afghan government's custody. Most (if not all) were eventually released.

I think the key quote from GC4 is this: "...shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties..." If you remember the recent Dubai ports controversy, one of the complaints made by Bush's detractors was that Dubai (as part of the UAE) was one of the few countries that recognized the Taliban. So it wasn't a "High Contracting Party" by most standards and this wasn't a conflict between two of them.

I've read that some claim article 3 (which is common to all four) should apply. But it says, "occurring in the territory of one of the High Contracting Parties". Again, that doesn't include Afghanistan.

As I said, they put all that fine print in there for a reason. Bush didn't invent it. Still, the Supreme Court could read it differently. It wouldn't be the first time.

The whole of Article 1 is "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.".

I think that definitely puts some limits on how much you can ignore the Convention if Al Qaeda or Afghanistan are not "High Contracting Parties".

It's the same as in the Third Geneva Convention, which covers prisoners of war. And that one requires a competent tribunal to detwermine status if there is "doubt". Not "reasonable doubt". Since the list of persons entitled to POW status includes civilians who spontaneously take up arms, I would argue that "unlawful combatant" status cannot be applied until there has been a "competent tribunal".

Now, does that mean a Captain's Mast or a Court Martial? Or something else?

I seriously doubt it. To interpret it that way would mean that it includes, not only civil wars, but various rebels right down to people like Timothy McVeigh. Every lawyer who ever represented someone on death row would looked into the Geneva Conventions, and one of them would have brought it to the Supreme Court years ago.

You'd have to explain why articles 2 and 3 would even be necessary. Opponents of the current policy wouldn't then need to cite article 3 as they're doing now.

I'd also have to ask what makes you think the U.S. would ever have signed onto it. IMHO, this is the biggest stumbling block to all these arguments. I don't think that many responsible countries would have gone along with it. They like that phrase "High Contracting Parties" quite a bit.

If you could get around that, then yes, the rest of it makes sense. But as others have brought up, the nations of the world did want a monopoly on warfare. And if that's the case, then the GC's phrase "competent tribunal" becomes irrelevant in Afghanistan.

TerryF: "why won't your government try him in a court of law"

-- why should we? To begin with, since he was taken in arms fighting us, we have every right to keep him locked in an iron cage until the war is over. Which it ain't.

Again, Terry, this is not a police investigation and we're not arresting people for trial.

Is this concept too complex to grasp?

TerryF: By the way, I'm hardly keeping company with Hicks.

-- there's a concept called "metaphor" which often crops up in these circumstances... for example, "keeping company" may meen either physical proximity with a person, or identifying/sympathizing with him.

Dave Bell: "I've been checking a few sources on the whole business of US soldiers killing prisoners in WW2, and I find that there are two distinct classes of event involved."

-- the way my father-in-law's outfit (he was a dogface in the 2nd Infantry) managed things was fairly typical. They had two sets of orders for prisoners -- again, this means small numbers or individuals, not formed units surrendering formally, who were usually pretty safe giving up to our side.

One set of orders was "take them back to the trucks", which meant what it said, for use when there was time and resources to spare.

The other was "take them down to the end of the road" which was used when there wasn't anything to spare without endangering members of the unit or the mission.

That one had an unspoken addition: "and shoot them". Since my father-in-law was the BAR gunner in his squad and had an automatic weapon, he got stuck with it.

The point being that war is -- again -- not like police work. It's a brutal, virtually unrestrained battle with life and death as the stakes, a cruel struggle for dominance in its rawest, crudest form. There are a few rules, but they easily fall by the wayside when the bullet hits the bone.

Michael :Dunno. Why do you then assume the Bush administration is doing anything right?

-- because any administration would be doing _some_ of the same things? Hillary, you may note, is if anything more hawkish on the war issue than Bush. Avoid the fetishism of small differences. Democrats are not commies; Republicans are not Nazis. They agree on more things than they disagree on; the differences are ones of nuance. American society has a broad degree of consensus on the basics.

"regarding your nonchalance with respect to competence."

-- actually, yeah, I did. In essence, I said that I have modest expectations regarding the actions of large bureaucracies. There are reasons SNAFU and FUBAR are venerable military acronyms.

"it seems that was more a rhetorical ploy than anything [your WWII reference]"

-- if you're going to use a fact to support an argument (including by analogy) then you'd better check the fact.

"Oh, by the way -- you're right, I didn't read the Draka series. I liked the Nantucket Republic series. Apparently you disavow that one."

-- no, I was merely pointing out that you knew less about my books, and about me, than you apparently thought you did.

Andrew: Now, I do have some issues with the concept of an unlawful combatant. Giving states a monopoly on warfare is a bad idea.

-- actually, it's a very _good_ idea, since it avoids the brutish continual war of all against all which is characteristic of pre-State levels of social organization.

Even a Russian or German of this century was far less likely to die in war than the _typical_ neolithic villager, where 25% of males were killed in fighting, generation after generation.

cf. Keeley, "War Before Civilization" and LeBlanc & Register, "Constant Battles"

TerryF: finds Hicks fighting there for the Taliban and because he's not Afghani, they take him halfway across the planet with a sedative suppository up his arse and put him in gaol for four years without trial.

-- uh... Terry... do you think we put German or Japanese prisoners of war on trial in 1944? Or Confederates in 1864?

Again (how many times do I have to point this out?) when you capture an enemy combatant in wartime, you keep them imprisoned until the war is over, or you decide (unilaterally, and at your own discretion) that you can safely release them.

Mark Pontin: You do understand that almost any historian will tell you that the primary reason for the development of the 'state' in the first place was -- explicitly and precisely -- so that there would be a civil entity that would have a monopoly on violence, both against criminals and non-territorial aggressors?

-- well, that's one way of putting it. The other is that the State was more _effective_ at waging war.

State-level warfare _is_ less destructive, over time, than the alternatives. That is, warfare is more intensive when it happens, but happens less often.