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View Diary: Rumsfeld's Revenge: Army Field Manual to Allow Torture (217 comments)

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  •  You have clarified it (6+ / 0-)

    That's why I did say they should be covered under the civilian convention. I was relying on attorney Joseph Margulies, who writes that "unlawful combatants" and "unprivileged combatants," or "unprivileged belligerents" are really the same things. He argued Rasul v Bush before the Supreme Court, so who am I to disagree?

    The main point is that all prisoners not POWs would be civilians, as you note, covered by the Fourth Convention.

    I am correct that the term has some history. The Bushies relied on Ex parte Quinn, which says:

    Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

    Furthermore, the Military Commmissions Act has now written the label into U.S. law. -- I just want you to know where I got my understanding of the issue.

    But I don't think we really disagree on anything essential at all. As I wrote in the diary:

    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 [POW] Convention, [or] a civilian covered by the Fourth Convention.... There is no intermediate status; nobody in enemy hands can fall outside the law.

    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

    by Valtin on Sun Jan 25, 2009 at 04:04:14 PM PST

    [ Parent ]

    •  yes-thank you (6+ / 0-)

      Of course, Quinn, for all of its other difficulties, was decided before the elaboration of 1949 Geneva Conventions (and subsequent international humanitarian law) and modern human rights law.   The dominant international law view is that they should not be tried by any military jurisdiciton, but by ordinary civilian courts.
      The Military Commissions Act was one of the worst pieces of legislation ever!

      "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."- Franz Kafka, "Before the Law"

      by normal family on Sun Jan 25, 2009 at 04:29:13 PM PST

      [ Parent ]

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