The Washington Post hurts my brain

[Kuciwalker]

The point you are (repeatedly) missing, is that Blau argues that scenario is precisely what you are arguing, and is not a strawman; it is the logical consequence of your argument.

And he's incorrect. It's the logical consequence of my argument combined with a large number of suspect factual assumptions. My argument has no logical consequences beyond "we should actually consider this question", because it makes no factual claims. The reason his conclusions sound ridiculous is that his factual assumptions are ridiculous.

[Arrian]

How do we decide what's morally correct?

That's complicated.

I don't think one can possibly distill this down to a mathematical equation, where you solve for X and thereby decide whether or not to release the prisoners.

There are things here that are impossible to quantify*. Therefore, go with whichever course of action gives you the "warm fuzzies" as you put it.

-Arrian

* - will a given prisoner, if released, go kill people? Was said prisoner a terrorist/jihadi in the first place? What would the outcome of a trial be? Will releasing prisoners improve relations with other states and/or provide PR benifits (and to what extent?), will refusing to release them do the opposite and to what extent? And so on and so forth.

[Kuciwalker]

I've noted you mentioning that before but I either missed or you failed to cite actual litigation that backs up your statement, that the legal definition of jailed terrorists is in question. As I said, the GC is very clear on the rule of law wrt detainees.

Let's make a quick hop over to wiki. GC3 Article 4 defines POW. The problem is that there are combatants in Afghanistan that don't meet the definition. It's not obvious what you're supposed to do with someone who is for all practical purposes a captured soldier when he doesn't meet these provisions.

If your soldiers capture an enemy base and the enemy soldiers inside surrender, if they're wearing uniforms and such it's easy to argue that yeah, they really are part of the enemy army. If none of the soldiers have uniforms, and lots of them are guys from other countries who were just handed an AK-47 and told to shoot at the Americans, should we just give them the benefit of the doubt and let them go? Lots of times when you read an article on one of the guys in Gitmo, they'll lay doubt on the idea that the person was actually a Taliban fighter - because we don't have any proof that the guy wasn't just in the wrong place at the wrong time. But if we just release everyone we don't know is a Taliban fighter, a lot of them will probably just go back to the next hideout and pick up another rifle.

The Bush admin came up with the idea of 'unlawful combatants'* to cover these guys. If you read the wiki article I've linked, you get 'conclusive' arguments both for and against this construction.

* this is a lie, the idea predates the Bush admin, but I think they were the first to really use it

[Kuciwalker]

That's complicated.
I don't think one can possibly distill this down to a mathematical equation, where you solve for X and thereby decide whether or not to release the prisoners.

There are things here that are impossible to quantify*. Therefore, go with whichever course of action gives you the "warm fuzzies" as you put it.

-Arrian

* - will a given prisoner, if released, go kill people? Was said prisoner a terrorist/jihadi in the first place? What would the outcome of a trial be? Will releasing prisoners improve relations with other states and/or provide PR benifits (and to what extent?), will refusing to release them do the opposite and to what extent? And so on and so forth.

Thank you. This is exactly the kind of analysis the WaPo completely ignores.

[Blaupanzer]

Snoop's and my assumptions may well be ridiculous, but they are based on historically tested concepts.

I really feel that you are not the one listening now, Kuci. The issue within "we should actually consider this question," which is whether or not we are willing to accept the consequences of releasing dangerous men. I am saying, not as a strawman (see definition discussion below) that we do not have that liberty to consequentially discuss that. You and I can yak-yak if you'd like, but the decision about release can only consider dangerousness (however difficult that might be to define) IF anf only IF guilt is established. You saying well I apply it only to foreigners is a bit of a sham (strawman if you will) since that would require an amendment to the Constitution removing the treaties clause.

Sham=false; semantical=weak: therefore we have very close definitions for strawman.

[Theben]

The Bush admin came up with the idea of 'unlawful combatants'* to cover these guys. If you read the wiki article I've linked, you get 'conclusive' arguments both for and against this construction.

Correct. The Bush admin, like I said, is the entity responsible for 'muddying' the legal waters, so to speak. But in the same article, further down:

The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the interpretation of "unlawful combatants" by the George W. Bush administration. The assumption that such a category as unlawful combatant exists is not contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[2]

In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view." Jean Pictet (ed.)[3]

bold added, of course.

[Kuciwalker]

The issue within "we should actually consider this question," which is whether or not we are willing to accept the consequences of releasing dangerous men. I am saying, not as a strawman (see definition discussion below) that we do not have that liberty to consequentially discuss that.

Okay. Then I have a trivial counterexample: prisoners of war. That is, real POWs, the guys in uniform who surrendered to our guys in uniform. We're under no obligation to release them unless/until we sign a treaty with the enemy nation wrt prisoner exchange.

[Kuciwalker]

Tubbins: I saw that, but I also saw the next section:

Article 51.3 of the Commentary: IV Geneva Convention also covers this interpretation: "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.".^[4] In the words of the International Committee of the Red Cross, or ICRC "If civilians directly engage in hostilities, they are considered "unlawful" or "unprivileged" combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action. Both lawful and unlawful combatants may be interned in wartime, may be interrogated and may be prosecuted for war crimes. Both are entitled to humane treatment in the hands of the enemy."^[5]

So none of this is very clear.

And yes, I saw the part about prosecution, but the part about internment implies to me that they don't have to be prosecuted until the war is over.

IANAIL.

[Kuciwalker]

Also, these conventions were written before the kind of conflict we're engaged in was imagined. We want new law because we're in a novel situation.

[Theben]

Not so much. In your own quote:

They may be prosecuted under the domestic law of the detaining state for such action... Both[lawful and unlawful combatants] are entitled to humane treatment in the hands of the enemy.

and in my quote above, there is precedent set for treating such as civilians:

In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

Any attempt to make a legal issue of this is really stretching things.

[Theben]

Also, these conventions were written before the kind of conflict we're engaged in was imagined. We want new law because we're in a novel situation.

Even if we did set a new law, the current crop of prisoners would either be grandfathered under the old laws, or accorded more freedoms under new law if present, as is custom.

[Kuciwalker]

Does that mean if I'm invading Bum****istan, all they have to do is have their soldiers remove their uniforms, and I have to try each of them individually if I don't want to release them?

xpost

[Blaupanzer]

No war has been declared. We are not at war with any nation. Thus, arguments about US rights re foreign citizens in wartime is a sham argument, a strawman. No one lives in or can go to Taliban or Al Qaeda. Thus those groups have members, but they are also citizens of some state. You cannot intern foreigners unless you are at war with their nation (which was Snoop's point awhile ago).

[Ramo]

That's complicated.

I don't think one can possibly distill this down to a mathematical equation, where you solve for X and thereby decide whether or not to release the prisoners.

There are things here that are impossible to quantify*. Therefore, go with whichever course of action gives you the "warm fuzzies" as you put it.

-Arrian

* - will a given prisoner, if released, go kill people? Was said prisoner a terrorist/jihadi in the first place? What would the outcome of a trial be? Will releasing prisoners improve relations with other states and/or provide PR benifits (and to what extent?), will refusing to release them do the opposite and to what extent? And so on and so forth.

The issue is that leaving detention up to executive discretion leads to very bad things. Rules constraining the use of force stop us from going off the deep end (see i.e. the Milgram experiment). What we customarily have done is adjudicate status disputes in a competent tribunal (as called for by Article 5 of the Geneva Conventions) where the suspects are given something short of full legal rights. The Bush Admin broke from this custom - which was suiting us perfectly well, creating sham "CSRTs" to rubber stamp detentions.

[Jon Miller]

Also, these conventions were written before the kind of conflict we're engaged in was imagined. We want new law because we're in a novel situation.

This is false. People have been fighting those who are without a nation and who could be legally a non-combatant throughout history. The only difference is that now planes/etc exist.

JM