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Friday, June 30, 2006

Hamden's Aftermath

Via the Adventures of Chester we get some interesting questions:

The Geneva Convention for a Non-State Entity

Today's Supreme Court ruling seems to me a remarkable point in the development of a kind of quasi-sovereignty for non-state organizations.

Were there to develop an Anti-Qaeda force, a private military to pursue Al Qaeda and win the war on its own terms, then their members would also have the Geneva Conventions apply to them, were they ever to be apprehended or detained by the US, yes? In other words, if the Geneva Convention now applies to a non-state that is a non-signatory in the eyes of the US, does it not then apply to ALL non-states that are non-signatories?

This is quite a large new degree of sovereignty that has been granted to non-state organizations. How will the concept of citizenship evolve with decisions like these?

If protections that normally accrue to states after debate and ratification can now be given over to non-states which have no mechanism for ratification, let alone debate, one can easily imagine a scenario in which non-state organizations form themselves and immediately possess the rights of a state, with no corresponding need to adhere to any laws in their own activities.

If this is the case, then we have the answer to the war: it will be privatized, and its ultimate victories won by uninhibited private military actors, not the hamstrung citizen militaries of nation-states.

Any legal minds out there are welcome to comment.

From The Belmont Club:

I certainly do hope that legal minds chime in. From a layman's point of view the answer to Chester's rhetorical 'if al-Qaeda is protected doesn't that mean any privately organized violent effort is similarly protected' must logically be "yes". Some time ago I conjectured that al-Qaeda's asymmetrical advantages were in retrospect evanescent because any anti-Muslim organization could emulate them.

Long before a faculty lounge in Islamabad or Riyadh realizes it can build a bomb alone and secretly, the same thought will have occurred to individuals in Tel Aviv, New Delhi or Palo Alto. Any Islamic group that believes it can attack New York deniably should convince itself that no similar group can nuke Mecca at the height of the pilgrim season. In fact, the whole problem that Coll describes should be generalized. The only thing worse than discovering that New York has been destroyed by persons unknown is to find that Islamabad has been vaporized by a group we've never heard of.

Any environment capable of producing terrorism on a scale which could destroy America would be sufficiently powerful to destroy Islam -- and destroy it first many times over. Any weapon that AQ Khan can make can be bought by believers and infidels alike. The theorists of asymmetrical terrorist warfare forgot that its military effectiveness depends on the very restraints that it, itself, dissolves. ...


Anonymous said...

This is incorrect. Please actually read the decision before posting.

As for the rediciulous holding of the court, they held that the Geneva Convention applied because the Tribunal was going to apply the "Laws of War." It did NOT independantly state that the Geneva Convention applied to everybody. THe court simply held that the Geneva Convention is a part of the "Laws of War." Thus, if a court may enforce the "laws of war" upon a detainee/defendant, the Geneva may apply.

That being said, this decision was stupid.

Congress CLEARLY suspended the Writ of Habeas Corpus (for combat detainees) when it passed the DTA. Specifically, Congress REMOVED jurisdiction from any court, and seeded jurisdiction to the D.C. COurt. Although they did not explicitly say "we suspend the writ of Habeas Corpus in the Offshore non-us territory of Guantanamo Bay," they implicitly did this by REMOVING jurisdiction from ALL US Federal COURTS. (As the constitution allows them to do)

Read Scalia's dissent.

The court shouldn't even be hearing the case because:
1. they have no jurisdiction because it was removed by congress.
2. Even if they have jurisdiction, they shouldn't hear the case until the tribunal makes a ruling and it goes through the appeals process in the D.C. Circuit. (As is the LONG PRECIDENT OF THE COURT)
3. Even if this "Habeas Petition" applies to enemy combatants, the interests of international comity, the powers of the President to Wage war, and the national security of the US should prevent the court from hearing the Case. (IE, we can't give habeas protections to enemies shooting at our troops in Afghanastan. This case effectively does this. From now on, we should take no prisoners of war because they will fall under the newly created super "habeas jurisdiction" of the Supreme court, even if they are held outside of the country just after shooting at our troops. Instead, our soilders should shoot to kill and take no prisoners. Otherwise, the Supreme Court will order these "enemy combatants" to go free.)

The end result of this case:
1. Either we will kill everybody on the battle field and leave nobody alive OR:
2. After we catch terrorists/enemy combatants who are shooting at us on the battlefield, the Supreme Court will interviene with their "Habeas Jurisdiction" and demand that the military let the terrorist go.

Does the Terrorist get his missles, Gernades, and IED's back too that were confiscated on the battle field?

I hope you realize how stupid this is.

The Majority in the Supreme Court in this case have authorized continued terrorist attacks on the US by those it grants its "habeas protections" too.

1 soon to be dead from a released terrorist American

Moneyrunner said...

What is incorrect? I happen to agree with your comments, by the way.