Liberal Law Professor: Obama Clearly Broke the Law with Bergdahl Deal

[Mr. Mensch]

http://www.youtube.com/watch?v=gr6Thmlkc_4

[nathanbforrest45]

Law?? Law??? We doon need no stinkin law.

[Captain Obvious]

LMFAO!!!

Now liberals are suddenly credible in the wingosphere.

The hypocrisy is just overwhelming and the fact that these kooks can't see this is just mindnumbingly stunning. What a collective idiocy we've become.

No lynn - there is absolutely no fucking hope for mankind.

:biglaugh:

[nathanbforrest45]

Wow, right over your head wasn't it?

[Ivan88]

There is no law in the USA today, unless you want to call egoism, lies, covetousness, robbery, mayhem and slaughter to be law.
That professor is lost in the ivory growing over his tower.

[nathanbforrest45]

There is no law in the USA today, unless you want to call egoism, lies, covetousness, robbery, mayhem and slaughter to be law.
That professor is lost in the ivory growing over his tower.


Thats Ivy that would grow over towers. Ivory is a bone like material found on elephants and various sea creatures like whales and walruses

Ivory would not grow over a tower. Ivy, on the other hand would. One would LIVE in an Ivory Tower or gather in an Ivory Tower but nothing would grow over it particularly.

[momsapplepie]

Obumbles knew exactly what he was doing. He purposely neglected to tell congress because he knew they would have stopped the transfer. It was all done to get the VA scandal off the front pages. 5 years and he pulls this shit out of his ass just now? C'mon. Wake up people.

[Polecat]

Well you guys keep debating the semantics.....I am making a guillotine.

[Newpublius]

Obama did not break the law. He's the commander in chief vested with the constitutional authority to engage in such prisoner swaps. The Guantanamo Bay prisoners were just that....prisoners detained subject to the AUMF, as such they were essentially the equivalent of POWs and can be detained until the end of the war or for that matter unilaterally released or in this case, exchanged....much like Lincoln presided over a government that, prior to Grant, would routinely parole/exchange POWs.

Now of course the question, SHOULD he have done this? No. That's a completely different question from CAN he do this? The answer is unequivocvally YES.

[Redrose]

Obama did not break the law. He's the commander in chief vested with the constitutional authority to engage in such prisoner swaps. The Guantanamo Bay prisoners were just that....prisoners detained subject to the AUMF, as such they were essentially the equivalent of POWs and can be detained until the end of the war or for that matter unilaterally released or in this case, exchanged....much like Lincoln presided over a government that, prior to Grant, would routinely parole/exchange POWs.

Now of course the question, SHOULD he have done this? No. That's a completely different question from CAN he do this? The answer is unequivocvally YES.

Obama and all presidents have certain powers, that is very true. In this instance he over stepped his authority. There is a definite distinction between using Executive Power and releasing deadly terrorists back into the world, especially when Obama admits he knows they will kill again. With my knowledge of the law, that prior knowledge would implicate him in any terrorist act they perform. He's criminally negligent. He is aiding and abetting the enemy in during an on going conflict. There is very specific language in the Constitution prohibiting such action by the Commander in Chief.

[Common Sense]

Obama and all presidents have certain powers, that is very true. In this instance he over stepped his authority. There is a definite distinction between using Executive Power and releasing deadly terrorists back into the world, especially when Obama admits he knows they will kill again. With my knowledge of the law, that prior knowledge would implicate him in any terrorist act they perform. He's criminally negligent. He is aiding and abetting the enemy in during an on going conflict. There is very specific language in the Constitution prohibiting such action by the Commander in Chief.

LOL...he knows they will kill again??? How so?

Sure there is a chance. There have been hundreds of detainees released from GITMO. Over 500 under the last president.

[Mainecoons]

You're OT. It doesn't matter whether they kill again though I sure wouldn't want to bet against it.

There is a very clear violation of law here. That is what the OP is talking about. This is a chronic problem with this administration. If you doubt it, read up on all the fundamental unilateral changes that have been made to ObamaCare.

Our laws are very clear about this stuff, the legislature makes the laws, the Executive carries them out. The Executive does not have unlimited veto power or the power to rewrite legislation in a wholesale manner as this administration is doing.

Not that I think either modes of lawbreaking by the U.S. government are your concern but you might want to notice just how many legal cases are being filed and making their way through U.S courts on this very topic.

Liberals don't seem to understand that this sort of Executive lawbreaking is a two edged sword. The next POTUS could be a neocon and he could start making up a whole bunch of his own laws that AMERICAN liberals won't like much. Some very bad precedents are being set here. These are the kinds of precedents that lead to dictatorial powers.

This is another problem that Canada, with its strong provincial system, seems to have a great deal less of. The American federal government is out of control. It doesn't appear that you have the same problem with Ottawa.

[Bob]

Obumbles knew exactly what he was doing. He purposely neglected to tell congress because he knew they would have stopped the transfer. It was all done to get the VA scandal off the front pages. 5 years and he pulls this shit out of his ass just now? C'mon. Wake up people.


I am not clear that congress would have said no, but he removed their constitutional powers from Congress.

[Common Sense]

You're OT. It doesn't matter whether they kill again though I sure wouldn't want to bet against it.

There is a very clear violation of law here. That is what the OP is talking about. This is a chronic problem with this administration. If you doubt it, read up on all the fundamental unilateral changes that have been made to ObamaCare.

Not that I think either are your business but you might want to notice just how many legal cases are being filed and making their way through U.S courts on this very topic.

Liberals don't seem to understand that this sort of Executive lawbreaking is a two edged sword. The next POTUS could be a neocon and he could start making up a whole bunch of his own laws that AMERICAN liberals won't like much.

This is another problem that Canada, with its strong provincial system, seems to have a great deal less of. The American federal government is out of control. It doesn't appear that you have the same problem with Ottawa.

If you want to compare executive orders by president, we can do that. The precedent has been set.

The Canadian federal govt is pretty strong and influential. But yes, so are our provinces.

[Newpublius]

Obama and all presidents have certain powers, that is very true. In this instance he over stepped his
authority. There is a definite distinction between using Executive Power and releasing deadly terrorists back into the world, especially when Obama admits he knows they will kill again. With my knowledge of the law, that prior knowledge would implicate him in any terrorist act they perform. He's criminally negligent. He is aiding and abetting the enemy in during an on going conflict. There is very specific language in the Constitution prohibiting such action by the Commander in Chief.

And when Lincoln exchanged Confederate prisoners for Union prisoners they knew the confederate soldiers would take up arms again. There was a tiered system too, it wasn't just 1:1, officers could fetch more enlisted men.

More recently exchange of spies

The legality of the exchange is unquestionable.

[Redrose]

And when Lincoln exchanged Confederate prisoners for Union prisoners they knew the confederate soldiers would take up arms again. There was a tiered system too, it wasn't just 1:1, officers could fetch more enlisted men.

More recently exchange of spies

The legality of the exchange is unquestionable.

So do two wrongs make a right?

[Bob]

LOL...he knows they will kill again??? How so?

Sure there is a chance. There have been hundreds of detainees released from GITMO. Over 500 under the last president.

Yeah, but Bush released the non dangerous they believed as well as those who did not belong in Gitmo.


http://series.c-span.org/Journal/

See Charles Stimson

He worked for both and told the truth on both

[Bob]

And when Lincoln exchanged Confederate prisoners for Union prisoners they knew the confederate soldiers would take up arms again. There was a tiered system too, it wasn't just 1:1, officers could fetch more enlisted men.

More recently exchange of spies

The legality of the exchange is unquestionable.

Obama is in violation of a recent law. Outlaw Abe Lincoln had no such laws.

[Newpublius]

So do two wrongs make a right?

No, all instances described were legal. Prisoners exchanges are LEGAL in wartime. The wisdom of any given exchange is up to you, but Obama, as the President, has the authority to engage in prisoner exchanges. NOTHING NEW. It isn't just legal its UNQUESTIONABLY LEGAL based on existing law and international norms that go back THOUSANDS OF YEARS.

[momsapplepie]

Obama broke the law. He signed it last year. 30 day notice to Congress before the release of any Gitmo detainee. He even admits he didn't follow the law.

[Newpublius]

Obama is in violation of a recent law. Outlaw Abe Lincoln had no such laws.

No, he isn't....prisoner exchanges are specifically contemplated by the GC and are incorporated into US law by statute and the UCMJ.

[Redrose]

LOL...he knows they will kill again??? How so?

Sure there is a chance. There have been hundreds of detainees released from GITMO. Over 500 under the last president.

President Obama acknowledged Tuesday that his Taliban prisoner swap could blow up in his face — or somewhere else around the globe.
The five hardened terrorists sprung from Guantanamo Bay for suspected deserter Sgt. Bowe Bergdahl’s return could rejoin the jihad on America, the President conceded in defending his decision.
“Is there a possibility of some of them trying to return to activities that are detrimental to us? Absolutely,” Obama told a news conference in Warsaw.
“That’s been true of all the prisoners that were released from Guantanamo. There’s a certain recidivism rate that takes place.”
A top Middle Eastern official said officials in Qatar would do little to hinder the terrorists.
The unidentified official told Reuters that the Taliban leaders had already moved into a residential compound in the capital, Doha, and could “move around freely” within the nation. The source said the terrorists will not be treated like prisoners and U.S. officials will not be allowed to monitor them.
Mullah Salem Khan, a Taliban commander in Afghanistan, said the men were already bracing for battle. “As soon as they arrived in Qatar, they rejoined the Taliban,” he told The Daily Beast website. “We don’t care about U.S. conditions and obstacles.”




Read more: http://www.nydailynews.com/news/politics/obama-bergdahl-deal-circumstances-american-soldier-back-article-1.1814986#ixzz33ngmeTVl

[Alyosha]

No, all instances described were legal. Prisoners exchanges are LEGAL in wartime. The wisdom of any given exchange is up to you, but Obama, as the President, has the authority to engage in prisoner exchanges. NOTHING NEW. It isn't just legal its UNQUESTIONABLY LEGAL based on existing law and international norms that go back THOUSANDS OF YEARS.
@Newpublius (http://thepoliticalforums.com/member.php?u=685)

you're wrong, unfortunately: http://www.gpo.gov/fdsys/pkg/BILLS-113hr3304enr/pdf/BILLS-113hr3304enr.pdf

He had to give Congress a 30 day notice of movement of Gitmo prisoners. He even signed this into law, ironically.

[Newpublius]

@Newpublius (http://thepoliticalforums.com/member.php?u=685)

you're wrong, unfortunately: http://www.gpo.gov/fdsys/pkg/BILLS-113hr3304enr/pdf/BILLS-113hr3304enr.pdf

He had to give Congress a 30 day notice of movement of Gitmo prisoners. He even signed this into law, ironically.

And its a crap argument for a very simple reason, the statute under section 1035 permits 'transfers' under certain circumstances and then provides that 30 day notice be given to certain members of Congress. The statute is contemplating 'special rendition' not prisoner exchanges on top of which, frankly, what's the 'crime' exactly? Failure to provide 'notice', right? Well, what's the sanction? None, there is no prescribed sanction because its an administrative procedure at best making the exchange, AT WORST, unlawful or not in conformance with the statute because at the end of the day its a goddamn appropriations statute, Alyosha, "PROHIBITION ON THE USE OF FUNDS" on top of which there is no express prohibition on 'exchanges' and yes, the quibble matters because you're speaking of this as a 'crime' and criminal statutes need to be narrowly defined with specificity.

On top of which, frankly, he IS the President and he possesses constitutional authority to grant reprieves or pardons as he sees fit (a certain procedural has been established as a NORM, but not as a matter of constitutional authority, in point of fact his authority in that circumstance is completely unqualified to extent to any case except matters of Impeachment), no matter what Congress or the courts say. Unwise, perhaps, but he can release anybody at any time, for any reason because the statute doesn't modify his constitutional authority.

[Codename Section]

Obama already said he broke with the law though, he says, anyway and he's a Constitutional scholar.

[Matty]

Who picked the five who were released?

[Codename Section]

We actually, btw, aren't treating all GITMO prisoners are POWs. Just wanted to point out that distinction made by the Bush administration. Only some of them are subject to Geneva conventions. How they decide that within Gitmo, I don't know. It's sort of a joke.

I'd ask Pete if that's changed.

[Redrose]

Who picked the five who were released?

Fantastic question! The Taliban originally wanted 50 for Bergdahl. They settled on those five. The five most dangerous, high ranking terrorists.

I want to know who picked those five.

[Newpublius]

We actually, btw, aren't treating all GITMO prisoners are POWs. Just wanted to point out that distinction made by the Bush administration. Only some of them are subject to Geneva conventions. How they decide that within Gitmo, I don't know. It's sort of a joke.

I'd ask Pete if that's changed.

Well, they're POWs until tried and convicted. A combatant, any combatant, lawful or unlawful, can be held in non-punitive detention as a POW for the duration of the hostilities. They can be subject to punishment for crimes, either war crimes committed as an active belligerent or for crimes committed while a POW of course and then subjected to punitive detention or execution.


Obama already said he broke with the law though, he says, anyway and he's a Constitutional scholar.

No law, barring an Amendment, can change his constitutional authority though and he damn well knows he has constitutional authority to do what he did.

[Codename Section]

Well, they're POWs until tried and convicted. A combatant, any combatant, lawful or unlawful, can be held in non-punitive detention as a POW for the duration of the hostilities. They can be subject to punishment for crimes, either war crimes committed as an active belligerent or for crimes committed while a POW of course and then subjected to punitive detention or execution.


Actually, no, I'm telling you what we were told. Some were qualified as prisoners of war and some were not, those that were not we were told were not under the constraints of Geneva conventions.

Taliban, for example, in most cases were POWs. AQ was, in most cases, not.





No law, barring an Amendment, can change his constitutional authority though and he damn well knows he has constitutional authority to do what he did.

Dude, this is 2014. Do you know how much constitutional authority and protections are out the window? Maybe you think he has the right but the White House said that they should have given the 30 days or whatever it was but there were special circumstances.

My guess is that this is because they were AQ leaders and not Taliban.

[Newpublius]

Actually, no, I'm telling you what we were told. Some were qualified as prisoners of war and some were not, those that were not we were told were not under the constraints of Geneva conventions.

That's because in combat your hostilities carry with it an immunity from prosecution so long as you are engaged in LAWFUL belligerency. So if you're in combat and you shoot a member of the enemy and the enemy captures you, fully knowing you just killed one of their soldiers, the 'GC applies' and they are supposed to hold you as a POW and not hold that killing against you. Al-Qaida are NOT lawful belligerents so when they are captured, their hostilities are not privileged and don't carry with it the same immunity that you carry when you were engaged in belligerency. BUT you have to try them first, find them guilty and THEN the GC 'doesn't apply' {doesn't afford Al-Qaida immunity} and they can be subjected to punitive detention and obviously even execution.

But until then the belligerents 'guilt' is not presumed and his status as a belligerent alone carries with it the minimal protections of the GC in ensuring that you cannot subject them to summary execution.


https://www.youtube.com/watch?v=4iEY6WoGm6A

He summarily executed prisoners not dressed in uniform, who otherwise would not be entitled to protections under the GC, the result was a war crime, and I suppose a bit of victor's justice, but juxtapose with.


https://www.youtube.com/watch?v=VtAmk0Nrut0

They were given a court martial that was typically afforded at that time.

[Newpublius]

Dude, this is 2014. Do you know how much constitutional authority and protections are out the window? Maybe you think he has the right but the White House said that they should have given the 30 days or whatever it was but there were special circumstances.

Well, he possesses constitutional authority to release anybody in his custody anytime he wants, not just Al-Qaida. You can question the wisdom of it all day long, but this is nothing new. When Lincoln decided to fight the Confederacy he framed the question in terms of 'preserving the Union' -- the constitutional argument of supremacy in the face of state secession doesn't make a good 'equitable' argument and neither does 'I'm the President and possess unilateral authority' and so one hears in lieu "We don't leave anybody behind" and other equitable arguments, but the underlying constitutional authority in fact does exist.

[Alyosha]

And its a crap argument for a very simple reason, the statute under section 1035 permits 'transfers' under certain circumstances and then provides that 30 day notice be given to certain members of Congress. The statute is contemplating 'special rendition' not prisoner exchanges on top of which, frankly, what's the 'crime' exactly? Failure to provide 'notice', right? Well, what's the sanction? None, there is no prescribed sanction because its an administrative procedure at best making the exchange, AT WORST, unlawful or not in conformance with the statute because at the end of the day its a goddamn appropriations statute, Alyosha, "PROHIBITION ON THE USE OF FUNDS" on top of which there is no express prohibition on 'exchanges' and yes, the quibble matters because you're speaking of this as a 'crime' and criminal statutes need to be narrowly defined with specificity.

On top of which, frankly, he IS the President and he possesses constitutional authority to grant reprieves or pardons as he sees fit (a certain procedural has been established as a NORM, but not as a matter of constitutional authority, in point of fact his authority in that circumstance is completely unqualified to extent to any case except matters of Impeachment), no matter what Congress or the courts say. Unwise, perhaps, but he can release anybody at any time, for any reason because the statute doesn't modify his constitutional authority.

I don't know if I would use the word "crime" anymore because I don't think anyone in DC actually cares if they commit a crime or break their own laws as they are above it.

It is more of a protocol regarding the movement of detainees. Detainees, and I hope Peter1469 corrects me, are not all given soldier of war/POW status, which was why the Supreme court in I want to the Hamdan versus Rumsfeld upheld "detainee" as a term and therefore not all of the nice guys at Gitmo were given Geneva protections. However, I think that they were given limited protections, although they are not qualified as soldiers of war.

I hope that Pete corrects me as I'm trying to learn more about military law.

If you were talking about exchanging prisoners of war, then I think you'd be right. Since the SCOTUS upheld that they were not (and you can thank Roberts for that) I'm not sure that you are right.

Again, a lot of this is just Bush and Cheney getting away with tons of crap in the 00's that Obama is building upon now, but you can only exchange prisoners of war and I don't think we've qualified these guys as that.

But Peter1469 will correct me, I'm just a criminal lawyer, not a military lawyer.

[Alyosha]

Forgive the rambling...meds...

[momsapplepie]

Obama signed it into law. 30 days notice to congress for the release of Gitmo detainees. There is no getting around it. He intentionally broke the law he signed. He knows it and is making excuses, but he KNOWS he broke the law.

[Montoya]

Obama broke the law. He signed it last year. 30 day notice to Congress before the release of any Gitmo detainee. He even admits he didn't follow the law.

So what? Nobody cares America by a 85% margin supports Obama in this.

[Peter1469]

In the beginning of our Afghan war we treated the Taliban as a legitimate government (although the US never recognized them as such), therefore they were afforded prisoner of war status. The US refused to create a clear status for al Qaeda. It was bewildering for me and every other JAG. They refused to even hold "Article 5" hearings- which is the method used to handle any captured person whose status is in doubt (civilian, combatant, etc). Eventually that changed and we started to hold Article 5 hearings, although the Army refused to call them that. Whatever.

Many of us were pushing the administration to fight for a new status to account for transnational terrorism- illegal combatant. Bush did push for it, but then dropped the issue for some reason. International law is behind the times. Now, you are either a combatant or a civilian. And al Qaeda does not fit the definition of combatant. So they are really civilians under the law.

Yes SCOTUS in Hamdan said that captured enemies who don't have the protections of combatants still have the "minimal protections" of Geneva Convention Common Article 3. Basically that means you still have to treat them nice until you charge them and try them for a crime. And SCOTUS is correct under the current state of the law domestically and internationally.
Alyosha



I don't know if I would use the word "crime" anymore because I don't think anyone in DC actually cares if they commit a crime or break their own laws as they are above it.

It is more of a protocol regarding the movement of detainees. Detainees, and I hope @Peter1469 (http://thepoliticalforums.com/member.php?u=10) corrects me, are not all given soldier of war/POW status, which was why the Supreme court in I want to the Hamdan versus Rumsfeld upheld "detainee" as a term and therefore not all of the nice guys at Gitmo were given Geneva protections. However, I think that they were given limited protections, although they are not qualified as soldiers of war.

I hope that Pete corrects me as I'm trying to learn more about military law.

If you were talking about exchanging prisoners of war, then I think you'd be right. Since the SCOTUS upheld that they were not (and you can thank Roberts for that) I'm not sure that you are right.

Again, a lot of this is just Bush and Cheney getting away with tons of crap in the 00's that Obama is building upon now, but you can only exchange prisoners of war and I don't think we've qualified these guys as that.

But @Peter1469 (http://thepoliticalforums.com/member.php?u=10) will correct me, I'm just a criminal lawyer, not a military lawyer.

[Peter1469]

So what? Nobody cares America by a 85% margin supports Obama in this.

Are you lying or stupid? It is 45% for and 47% against.

I vote both.

[Matty]

Post your link with the 85% approval source. Mr. Montoya. Will it take long?

[Matty]

Well well, he can't back it up. No surprise there. A man with no credibility what so ever. All mouth. No substance. A troll.

[Peter1469]

Well well, he can't back it up. No surprise there. A man with no credibility what so ever. All mouth. No substance. A troll.

Small probably.

[Newpublius]

Many of us were pushing the administration to fight for a new status to account for transnational terrorism- illegal combatant.

Bush used the term 'enemy combatant' - Obama likes the term unprilvleged. The concept exists and has existed for decades. Unlawful combatant, illegal combatant, enemy combatant, a rose is a rose by any other name.


Bush did push for it, but then dropped the issue for some reason. International law is behind the times. Now, you are either a combatant or a civilian. And al Qaeda does not fit the definition of combatant. So they are really civilians under the law.

Bush didn't 'drop it' necessarily. What happened was the Supreme Court become a bit hostile to the Bush administration. Bush's military tribunals, fully patterned after WWII tribunals, frankly they even afforded better process, were ruled to be insufficient. The result is that the Bush Administration's Military Commissions Act fell and in the transition, a new one came to be, the MCA of 2009. What they realized is why should they go through the hassle of trying and convicting unlawful combatants (enemy combatants) when they could just as well hold them for the duration of the conflict as LAWFUL combatants.

I really don't know where you come up with this stuff. You're either a combatant or a civilian alright, but combatants do come in two flavors: lawful and unlawful. You can saw 'unlawful combatant' / 'enemy combatant' / or more recently in the MCA of 2009 'unprivileged belligerents'

The specific terminology is irrelevant as to the unlawful nature of the belligerency. But the fact that they're combatants, generally, IS very important status for a very simple reason. Military force can be applied against combatants, lawful or otherwise; whereas military force cannot be applied against 'civilians' / non-combatants.


Yes SCOTUS in Hamdan said that captured enemies [combatants/belligerents] who don't have the protections of [LAWFUL] combatants still have the "minimal protections" of Geneva Convention Common Article 3. Basically that means you still have to treat them nice until you charge them and try them for a crime. [rendering their BELLIGERENCY UNLAWFUL, not making them a civilian]

"The Government asserted that Uthman was part of al Qaeda and therefore may be detained for the duration of the war against al Qaeda pursuant to the Authorization for Use of Military Force. See Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004); Bensayah v. Obama, 610 F.3d 718, 724–25 (D.C.Cir.2010) - See more at: http://caselaw.findlaw.com/us-dc-circuit/1561644.html#sthash.2vpa6l6P.dpuf"

[Peter1469]

Of course the concept exists. I was speaking of making it a legal category under the international laws of war. I thought that I made that clear. I guess not.

SCOTUS was hung up over the lack of a congressional declaration of war. As it should.

You are really confusing these issues. Yes, combatants who don't follow the laws of war are called criminals. What you are failing to see, is what to do with people who don't fit into the combatant box from the get go.

Stick with what you practice. Don't tell me about international law of war.


Bush used the term 'enemy combatant' - Obama likes the term unprilvleged. The concept exists and has existed for decades. Unlawful combatant, illegal combatant, enemy combatant, a rose is a rose by any other name.



Bush didn't 'drop it' necessarily. What happened was the Supreme Court become a bit hostile to the Bush administration. Bush's military tribunals, fully patterned after WWII tribunals, frankly they even afforded better process, were ruled to be insufficient. The result is that the Bush Administration's Military Commissions Act fell and in the transition, a new one came to be, the MCA of 2009. What they realized is why should they go through the hassle of trying and convicting unlawful combatants (enemy combatants) when they could just as well hold them for the duration of the conflict as LAWFUL combatants.

I really don't know where you come up with this stuff. You're either a combatant or a civilian alright, but combatants do come in two flavors: lawful and unlawful. You can saw 'unlawful combatant' / 'enemy combatant' / or more recently in the MCA of 2009 'unprivileged belligerents'

The specific terminology is irrelevant as to the unlawful nature of the belligerency. But the fact that they're combatants, generally, IS very important status for a very simple reason. Military force can be applied against combatants, lawful or otherwise; whereas military force cannot be applied against 'civilians' / non-combatants.

[1751_Texan]

Well you guys keep debating the semantics.....I am making a guillotine.

The fact is that all your hard work will have been in vain because the weakass Congress will never procecute. So in the end...you will be left with a pile of Home Depot lumber.

[Peter1469]

Does the forum need to make another rule about signature lines? What is wrong with you people. Do you really need to be micromanaged in every aspect of your life?

[Codename Section]

Of course the concept exists. I was speaking of making it a legal category under the international laws of war. I thought that I made that clear. I guess not.

SCOTUS was hung up over the lack of a congressional declaration of war. As it should.

You are really confusing these issues. Yes, combatants who don't follow the laws of war are called criminals. What you are failing to see, is what to do with people who don't fit into the combatant box from the get go.

Stick with what you practice. Don't tell me about international law of war.


Yeh, I don't practice law but I know that it was a running joke about who was what in Afghanistan. I'm not saying I would do this stuff, because I certainly wouldn't, but some people might have kicked AQ detainees who were captured in the ass because they weren't POWs or pissed on their dead bodies.

I would never do that, personally, I'm just saying that the only people called POWs were usually Taliban fighters and Afghan people and that some people felt you could get away with slapping AQ assholes in the head or kicking their legs out from under them.

Not me tho. I was by the book except for that one time but that was so long ago--hey, look a squirrel.

[Codename Section]

Does the forum need to make another rule about signature lines? What is wrong with you people. Do you really need to be micromanaged in every aspect of your life?

:)

[Newpublius]

Of course the concept exists. I was speaking of making it a legal category under the international laws of war. I thought that I made that clear. I guess not.

No, you were speaking out your ass again without citing to authority, as usual, in this regard.


SCOTUS was hung up over the lack of a congressional declaration of war. As it should.

No, they weren't and the fact that you're even writing this is eyebrow raising. I don't know what law school you went to but your constitutional law is really VERY weak. There is no magic words doctrine. With respect to the actual application of military force there is NO distinction between a DoW and the AUMF. They decided that back during the Vietnam War for christ's sake. The ONLY distinction has to do with certain aspects of the national economy that the President can command which is completely irrelevant for purposes of actually engaging the enemy and holding prisoners of war.


What you are failing to see, is what to do with people who don't fit into the combatant box from the get go.

This is what underscores your ignorance of this issue. Al-Qaida IS in the combatant box from the get go because the AUMF defines them as combatants/belligerents and authorizes the President to use military force against them. One can ONLY use military force against COMBATANTS. Its why the Haditha killings were illegal, why My Lai was illegal, because the targets were non-combatant/civilians.

Uthman was a member of Al-Qaida who the government is holding as a POW for the duration of the WAR {my emphasis} against Al-Qaida. It means he's a combatant because one can ONLY hold combatants as prisoners of war. His status as a lawful/unlawful combatant is for further review pursuant to Article 5, section 2 of the Third Convention: "The present Convention shall apply to the persons referred to in Article 4 [ lawful combatants ] from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [ lawful combatants ] , such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal (ie. the criminal nature of their belligerency)"


Stick with what you practice.

I do. That's why I know so much about it. Why I'm capable of actually CITING TO AUTHORITY.


Don't tell me about international law of war.

Somebody needs to because frankly your knowledge here is very weak as well. In legal circles, Al-Qaida's status as 'active belligerents' capable of being tagetted with military force and then detained as prisoners of war for the duration of the war is the accepted doctrine of all three branches of government and both political parties. The ONLY murky issue is the quantum of Due Process necessary to convict them of the equivalent of war crimes/unlawful belligerency. The fact that Al-Qaida's belligerency is unlawful, ab initio, is itself also not debated.


Now, you are either a combatant or a civilian. And al Qaeda does not fit the definition of combatant. So they are really civilians under the law.

That's ignorant. They're not civilians.

[Ransom]

Obama did not break the law. He's the commander in chief vested with the constitutional authority to engage in such prisoner swaps. The Guantanamo Bay prisoners were just that....prisoners detained subject to the AUMF, as such they were essentially the equivalent of POWs and can be detained until the end of the war or for that matter unilaterally released or in this case, exchanged....much like Lincoln presided over a government that, prior to Grant, would routinely parole/exchange POWs.

Now of course the question, SHOULD he have done this? No. That's a completely different question from CAN he do this? The answer is unequivocvally YES.

Well said..should he have?

[Ransom]

So what? Nobody cares America by a 85% margin supports Obama in this.

Oh look, a liberal quoting a poll. Been a while.

:biglaugh:

[Newpublius]

Well said..should he have?

Right now what I'm reading in the news, his fellow soldiers are not exactly rallying to his cause. If we traded five potentially dangerous prisoners to get back a deserter or even potentially, a traitor, then that would appear to be a 'bad' deal, no? That being said, its not somethinig that should be prejudged either, let's face it, combat can throw people into mental loops, couple that with things like Stockholm syndrome, the will to survive....

[Codename Section]

No, you were speaking out your ass again without citing to authority, as usual, in this regard.


One question, when has the law ever mattered in theory?

It matters in practice only. We know how the military practices this set of "laws" and I'm telling you right now if someone is not classified as POW, and this will probably bother you as I can see from your angry post, but they aren't treated with the, ummm, ummmm, same level of "care" as someone who is.

No one calls them 'active belligerants' and no one calls AQ members POWs. They just don't.

I think you feel strongly enough that you should sue the government over this and make justice reign because seriously those AQ guys are getting shit on royally because they're just fucking plain old detainees. Seriously, sue the government because they're not following those rules you're talking about in all your posts on this.

I got your back, yo!

[Codename Section]

Oh, and while you're at it you should work on straightening out military terminology on this subject because right now we call them "assholes". I think time is of the essence here because for the last decade we haven't treated them like POWs at all, or honored guests as the Taliban put it. AQ are treated like criminals/civilians where as the Taliban and NA get "special" treatment over them, so you need to get that constitutional lawyering shit going because Pete is right in how they're treated versus what the law says.

You could be all famous and shit for breaking this racket open and getting justice for those assholes, I mean, AQ prisoners of war.

[Newpublius]

One question, when has the law ever mattered in theory?

Because the theory of law transcends the political limitations on the application of law. The practice and reality of the paperwork nightmare that is the practice of law still belies a genuine love of the law in the abstract. Ultimately either one believe that life has a purpose, or not, I'll leave that up to you, I don't claim any divine revelation or Godly memos in my fax machine, but I choose to live my life that way and part of that, and this is ingrained in virtually every lawyer, is the importance of the 'rule of law' and in point of fact the history of law, the history of our country is part of a fabric which in and of itself is an interesting story -- even this specific topic which has historical antecedents in spies, saboteurs, pirates, obviously war criminals during WWII....


It matters in practice only. We know how the military practices this set of "laws" and I'm telling you right now if someone is not classified as POW, and this will probably bother you as I can see from your angry post, but they aren't treated with the, ummm, ummmm, same level of "care" as someone who is.

Well, it does matter in practice. Consider the German IX Army trapped in East Germany in the last days of WWII, encircled by the Red Army and during the Battle of the Halbe, FOUGHT FOR THE PRIVILEGE OF SURRENDERING TO THE WESTERN ALLIES, think about that. The Red Army lost many people fighting the fanatical remains of the German Army who were very fearful of entering Soviet captivity (and for good reason, the Germans did a number on the Russians, didn't they?). But the GENERAL reputation of how a nation treats its prisoners precedes it


No one calls them 'active belligerants' and no one calls AQ members POWs. They just don't.

Hey, I don't care what you call them, as long as you don't call them non-combatant civilians. Just because the language is legal jargon doesn't change anything. If you engaged people, you were engaging 'active belligerents' - ie. combatants. And if you weren't, then you would've been committing a war crime, engaging non-combatant civilians.


I think you feel strongly enough that you should sue the government over this and make justice reign because seriously those AQ guys are getting shit on royally because they're just fucking plain old detainees. Seriously, sue the government because they're not following those rules you're talking about in all your posts on this.

I'm not against the government's position on this one. Its about the doctrine of the application of military force which by the way is a completely separate question from whether, as a society, we should decide to utilize military force to begin with.

[Newpublius]

Oh, and while you're at it you should work on straightening out military terminology on this subject because right now we call them "assholes". I think time is of the essence here because for the last decade we haven't treated them like POWs at all, or honored guests as the Taliban put it. AQ are treated like criminals/civilians where as the Taliban and NA get "special" treatment over them, so you need to get that constitutional lawyering shit going because Pete is right in how they're treated versus what the law says.

No, read back and read what Pete writes about 'civilians' -- Civilians aren't supposed to be treated like 'assholes' and historically a dichotomy of prisoner treatment existed, DE FACTO, ie as between the Wehrmacht and SS for instance.


You could be all famous and shit for breaking this racket open and getting justice for those assholes, I mean, AQ prisoners of war.

I'm saying keep them under lock and key, I don't give a rat's ass if you spit in their soup, but if you classify them as civilians, you have to let them go. And this is an important point, civilian/combatant, neither classification excuses the mistreatment of either class of prisoner. Its not like the "Geneva Convention doesn't apply" and we now have a free hand to rough the guy up; there's no law free zone here and while the fact that it happens is welll understood, fact is, people will only turn a blind eye for so long and if you kick somebody in the ass, smack him upside the head, spit in his face or otherwise subject him to relatively minor abuses and humiliations you'll get away with that for a while, but there were lines: http://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisoner_abuse -- and the law against it is crystal clear.

[Codename Section]

No, read back and read what Pete writes about 'civilians' -- Civilians aren't supposed to be treated like 'assholes' and historically a dichotomy of prisoner treatment existed, DE FACTO, ie as between the Wehrmacht and SS for instance.



They aren't in theory, but they are in practice. No one does what you're saying we're doing. That's kinda my point. It just doesn't pan out like that.




I'm saying keep them under lock and key, I don't give a rat's ass if you spit in their soup, but if you classify them as civilians, you have to let them go.

But we don't.

[Cigar]

Guess what will change tomorrow ... ? :laugh:

[Codename Section]

Because the theory of law transcends the political limitations on the application of law.

Ok but its kinda religious mumbo-jumbo at this point since no one is following it.




Well, it does matter in practice. Consider the German IX Army trapped in East Germany in the last days of WWII, encircled by the Red Army and during the Battle of the Halbe, FOUGHT FOR THE PRIVILEGE OF SURRENDERING TO THE WESTERN ALLIES, think about that. The Red Army lost many people fighting the fanatical remains of the German Army who were very fearful of entering Soviet captivity (and for good reason, the Germans did a number on the Russians, didn't they?). But the GENERAL reputation of how a nation treats its prisoners precedes it


That was then. This is now.



\
Hey, I don't care what you call them, as long as you don't call them non-combatant civilians. Just because the language is legal jargon doesn't change anything. If you engaged people, you were engaging 'active belligerents' - ie. combatants. And if you weren't, then you would've been committing a war crime, engaging non-combatant civilians.


So why isn't everyone being charged then?





I'm not against the government's position on this one. Its about the doctrine of the application of military force which by the way is a completely separate question from whether, as a society, we should decide to utilize military force to begin with.

Yeh, but...we're not doing it like you're saying we are, so who if not you is going to take it to the courts?

[Cigar]

I guess this is good Therapy for Haters :laugh:

Let it all out boys :grin: 2 1/2 more years, then Hillary

[Newpublius]

They aren't in theory, but they are in practice. No one does what you're saying we're doing. That's kinda my point. It just doesn't pan out like that.

They aren't civilians in theory or practice. They are engaged in belligerency as specifically contemplated by the GC. Are you disputing that we engage them with military force? Well, if they're civilians, you can't do that and that's why the people who were involved with the killings at Haditha were in trouble. All you've told me is the obvious, that Al-Qaida prisoners have been subjected to physical abuse. That doesn't change their legal status, it doesn't make them civilians.


But we don't.

We don't what? Let them go or classify them as civilians? Doesn't matter, we don't classify them as civilians and as a result we don't let them go because as the courts have ruled their subject to detention for the duration of the war against Al-Qaida...ie. they're not civilians.

[Peter1469]

Sigh. If I slip and fall in New Jersey I will give you a call.

I have briefed generals and congress critters on laws of war.


No, you were speaking out your ass again without citing to authority, as usual, in this regard.



No, they weren't and the fact that you're even writing this is eyebrow raising. I don't know what law school you went to but your constitutional law is really VERY weak. There is no magic words doctrine. With respect to the actual application of military force there is NO distinction between a DoW and the AUMF. They decided that back during the Vietnam War for christ's sake. The ONLY distinction has to do with certain aspects of the national economy that the President can command which is completely irrelevant for purposes of actually engaging the enemy and holding prisoners of war.



This is what underscores your ignorance of this issue. Al-Qaida IS in the combatant box from the get go because the AUMF defines them as combatants/belligerents and authorizes the President to use military force against them. One can ONLY use military force against COMBATANTS. Its why the Haditha killings were illegal, why My Lai was illegal, because the targets were non-combatant/civilians.

Uthman was a member of Al-Qaida who the government is holding as a POW for the duration of the WAR {my emphasis} against Al-Qaida. It means he's a combatant because one can ONLY hold combatants as prisoners of war. His status as a lawful/unlawful combatant is for further review pursuant to Article 5, section 2 of the Third Convention: "The present Convention shall apply to the persons referred to in Article 4 [ lawful combatants ] from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [ lawful combatants ] , such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal (ie. the criminal nature of their belligerency)"



I do. That's why I know so much about it. Why I'm capable of actually CITING TO AUTHORITY.



Somebody needs to because frankly your knowledge here is very weak as well. In legal circles, Al-Qaida's status as 'active belligerents' capable of being tagetted with military force and then detained as prisoners of war for the duration of the war is the accepted doctrine of all three branches of government and both political parties. The ONLY murky issue is the quantum of Due Process necessary to convict them of the equivalent of war crimes/unlawful belligerency. The fact that Al-Qaida's belligerency is unlawful, ab initio, is itself also not debated.



That's ignorant. They're not civilians.

[Newpublius]

Ok but its kinda religious mumbo-jumbo at this point since no one is following it.

We are though, we're engaging Al-Qaida with military force, we capture them and hold them as prisoners of war 'for the duration of the conflict' and all you're telling me is that the US military has a low opinion of them and subjects them to physical abuse which is a completely separate issue. It has no impact on their status whatsoever.


That was then. This is now.

Well, the law against the mistreatment of prisoners is well understood. The public policy in times of war is also well understood and frankly this isn't a 'torture' or 'abuse' thread.


So why isn't everyone being charged then?

For what? The abuse? Gee, I wonder why. Not everyone gets a ticket for speeding either, but there are instances where more severe forms of prisoner abuse has been prosecuted.


Yeh, but...we're not doing it like you're saying we are, so who if not you is going to take it to the courts?

Prisoners of war aren't supposed to be subjected to abuse of course, but neither are civilians, my point is clear. Al-Qaida should not be classified as 'civilians' and from what you're telling me they're not treated like civilians at all. If they were you'd arrest them, arraign them, indict them, try them, convict them......in civilian courts....don't lose the forest for the trees. Got it, some soldiers enjoy taking pot shots at them in captivity.

[Peter1469]

Right. Now we need international law to evolve to recognize this.


We are though, we're engaging Al-Qaida with military force, we capture them and hold them as prisoners of war 'for the duration of the conflict' and all you're telling me is that the US military has a low opinion of them and subjects them to physical abuse which is a completely separate issue. It has no impact on their status whatsoever.



Well, the law against the mistreatment of prisoners is well understood. The public policy in times of war is also well understood and frankly this isn't a 'torture' or 'abuse' thread.



For what? The abuse? Gee, I wonder why. Not everyone gets a ticket for speeding either, but there are instances where more severe forms of prisoner abuse has been prosecuted.



Prisoners of war aren't supposed to be subjected to abuse of course, but neither are civilians, my point is clear. Al-Qaida should not be classified as 'civilians' and from what you're telling me they're not treated like civilians at all.

[Newpublius]

Sigh. If I slip and fall in New Jersey I will give you a call.

I have briefed generals and congress critters on laws of war.

Well you shouldn't be. If you're calling Al-Qaida 'civilians' you obviously don't know what you're talking about.

NOW WHY DON'T YOU CITE A FUCKING CASE FOR ONCE.



Because you're making specific assertions and aside from trying to bootstrap your own expertise with unverifiable credentials as opposed to backing up your statements, you know....with FACTS AND LAW and bottom line is, you can't support that position. Nobody classifies them as civilians EXCEPT YOU.

[Peter1469]

I am not calling al Qaeda civilians. You need to learn to listen.

International law of war has two categories (for this conversation, I could go on, but you don't get the basics, so we will stick with the basics).

Combatant. Civilian. To be a combatant you have to meet certain requirements. Transnational terrorists don't meet those requirements.

Now we get to real life. Of course nobody believes transnational terrorists are just civilians. So we are in a transitional phase where nations are operating in ways that do not comport with treaties. International law can change via custom. That is what we see today.

Citation- my brain.


Well you shouldn't be. If you're calling Al-Qaida 'civilians' you obviously don't know what you're talking about.

[Newpublius]

I am not calling al Qaeda civilians. You need to learn to listen.

Bullshit, "So they are really civilians under the law."


To be a combatant you have to meet certain requirements.

To be a LAWFUL combatant subject to IMMUNITY you need to meet those requirements, but if you don't you don't revert to civilian as Article 5, section 2 which I cited above.


Citation- my brain.

"The present Convention shall apply to the persons referred to in Article 4 [ lawful combatants ] from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [ lawful combatants ] , such persons shall enjoy the protection of the present Convention {as lawful combatants} until such time as their status has been determined by a competent tribunal (ie. the criminal nature of their belligerency)"

One is presumed to be a combatant, UNTIL that modicum of Due Process is met, at which point, they're not civilians, they're combatants NOT entitled to protecetion under the GC -- subject to punishment. That's the actual paradigm in effect and its backed up by caselaw as opposed to the cobwebs in your brain.

[Codename Section]

They aren't civilians in theory or practice. They are engaged in belligerency as specifically contemplated by the GC. Are you disputing that we engage them with military force? Well, if they're civilians, you can't do that and that's why the people who were involved with the killings at Haditha were in trouble. All you've told me is the obvious, that Al-Qaida prisoners have been subjected to physical abuse. That doesn't change their legal status, it doesn't make them civilians.

Yes, it does. The US military is under guidance by the CIC and his legal staff, and we do not treat them like military personnel or official "soldiers". We treat them like criminals, or "civilians". Now, if this is truly illegal you should take this up with the CIC and Congress and the SCOTUS because we've been doing it all wrong for the last decade.

Maybe you can sue Obama? Cigar would love that. Not really but it would be fun to see him cry over it.




We don't what? Let them go or classify them as civilians? Doesn't matter, we don't classify them as civilians and as a result we don't let them go because as the courts have ruled their subject to detention for the duration of the war against Al-Qaida...ie. they're not civilians.

We're not at war with Al Qaeda we're in the pseudo territory of situational use of force. They are not considered official combatants or soldiers for multiple reasons, one to show contempt for their methodology and two to be able to piss on them when we capture them.

I kid I kid sort of.

[Codename Section]

We are though, we're engaging Al-Qaida with military force, we capture them and hold them as prisoners of war 'for the duration of the conflict' and all you're telling me is that the US military has a low opinion of them and subjects them to physical abuse which is a completely separate issue. It has no impact on their status whatsoever.

Dude, for the last fucking time, the reality is that AL QAEDA is not treated like prisoners of war! The members of the Iraqi army when captured were treated as prisoners of war. They were given rights under the GC afforded to legal combatants. AQ is nation-less. They are not an official military who subject themselves to the Geneva Conventions. They are not treated like a prisoner of war when we catch them.

Now you can cite your view of the law, but I assure you the military has lawyers and it is now all of their opinions versus yours and given that they do this daily and they get this from the Commander in Chief's staff of legal eagles, I'm guessing they have a better handle on it.

If they don't you can prove it by taking the US government to court and winning.




Well, the law against the mistreatment of prisoners is well understood. The public policy in times of war is also well understood and frankly this isn't a 'torture' or 'abuse' thread.


No, it's a thread on criminals who were taken to Gitmo and now considered "assets" by the Congress and why they're pissed Obama for breaking the deal of asset management he signed into law himself.





For what? The abuse? Gee, I wonder why. Not everyone gets a ticket for speeding either, but there are instances where more severe forms of prisoner abuse has been prosecuted.


Yes, Haditha would be an example. Iraqi fighters were prisoners of war and our mistreatment of them was prosecuted as a war crime.





Prisoners of war aren't supposed to be subjected to abuse of course, but neither are civilians, my point is clear. Al-Qaida should not be classified as 'civilians' and from what you're telling me they're not treated like civilians at all. If they were you'd arrest them, arraign them, indict them, try them, convict them......in civilian courts....don't lose the forest for the trees. Got it, some soldiers enjoy taking pot shots at them in captivity.

It's systemic. No one treats AQ like military. Take it up with the CIC if you don't like it. It's on his watch.

[Newpublius]

Yes, it does. The US military is under guidance by the CIC and his legal staff, and we do not treat them like military personnel or official "soldiers".

Yes, we do, the fact that you're abusing the shit out of them is beside the point. Its the government's position, upheld by the courts, that we are at war with Al-Qaida authorized by the AUMF and that the resulting prisoners can be held for the 'duration of the conflict' just like any other POW and that FURTHER we actually can treat them like criminals TOO, ie. what's in dispute is the modicum of Due Process necessary under the Geneva Conventions to try and convict them, ie. that's the stick point.


We treat them like criminals, or "civilians".

No, we don't. Nothing we're doing remotely resembles the paradigm of civilian law enforcement.


Now, if this is truly illegal you should take this up with the CIC and Congress and the SCOTUS because we've been doing it all wrong for the last decade.

The abuse detailed is illegal, the rest of what we've been doing is fine. Holding them 'for the duration of the conflict' - we've been doing that and we're allowed to do that.

[Newpublius]

Dude, for the last fucking time, the reality is that AL QAEDA is not treated like prisoners of war! Then you have to let them go. Detention for the 'duration of the conflict' is treatment as a POW. The fact you're sticking night sticks up their ass is an incidental issue.


You can then treat them like criminals and try and convict them and then subject them to JUDICIAL PUNISHMENT, again, not the random abuses of guards, but until then they're subject to detention 'for the duration of the conflict'

[Codename Section]

Yes, we do, the fact that you're abusing the shit out of them is beside the point. Its the government's position, upheld by the courts, that we are at war with Al-Qaida authorized by the AUMF and that the resulting prisoners can be held for the 'duration of the conflict' just like any other POW and that FURTHER we actually can treat them like criminals TOO, ie. what's in dispute is the modicum of Due Process necessary under the Geneva Conventions to try and convict them, ie. that's the stick point.

We are not "at war" with Al Qaeda. Now, I'm questioning you because even this dumbass marine knows that. We have what's called an "authorization for use of force", that is not an official declaration of war.

Look it up.

To call it an official war recognizes Al Qaeda as a legitimate nation/military and we refuse to do that.

This is not about the right to abuse anyone. They aren't actually tortured or treated like shit like they do to our guys, seeing as how they are not a military or bound by GC. It is about the fact that they don't meet criteria under US or International Law and they are not a country.

[Codename Section]

Then you have to let them go. Detention for the 'duration of the conflict' is treatment as a POW. The fact you're sticking night sticks up their ass is an incidental issue.



Jesus Christ you're like so full of shit today. This is not about doing to them what they do to us. Unlike those fucks who take out the eyeballs of people they bag or use irons and shock on them, we just put them in a cell and make them wear orange OR at worst waterboard them.

The global war on terror is a propaganda line, the official documentation is "authorization of use of force". If I caught someone stealing when acting in a police capacity they were treated the same as AQ. Are you getting it now?

They were not official military and we didn't have an official declaration of war on Al Qaeda like we did for Iraq in the Iraq Resolution.




You can then treat them like criminals and try and convict them and then subject them to JUDICIAL PUNISHMENT, again, not the random abuses of guards, but until then they're subject to detention 'for the duration of the conflict'


Again tell it to Obama and sue the shit out of the government because none of what you say is actual practice and hasn't been for 10 years.

[Cigar]

The People we're at War with don't have an Air-Force or Navy ... therefore, if America doeasn't allow them to Fly in or Float in, we can just pick them off in an open desert or mountan at our leisure.

[Codename Section]

The People we're at War with don't have an Air-Force or Navy ... therefore, if America doeasn't allow them to Fly in or Float in, we can just pick them off in an open desert or mountan at our leisure.

They have ships now and planes.

[Cigar]

Jesus Christ you're like so full of shit today. This is not about doing to them what they do to us. Unlike those fucks who take out the eyeballs of people they bag or use irons and shock on them, we just put them in a cell and make them wear orange OR at worst waterboard them.

The global war on terror is a propaganda line, the official documentation is "authorization of use of force". If I caught someone stealing when acting in a police capacity they were treated the same as AQ. Are you getting it now?

They were not official military and we didn't have an official declaration of war on Al Qaeda like we did for Iraq in the Iraq Resolution.



Again tell it to Obama and sue the shit out of the government because none of what you say is actual practice and hasn't been for 10 years.


Then let's Pack our Shit and come Home ...

[Newpublius]

We are not "at war" with Al Qaeda. Now, I'm questioning you because even this dumbass knows that. We have what's called an "authorization for use of force", that is not an official declaration of war.

Look it up.

Why don't you look it up, smart guy? I went to law school, I learned this already. The issue was already litigated during the Vietnam War, the drafted soldier went to court and the basic argument was that Vietnam wasn't a 'Declaration of War' -- there is no 'magic words' doctrine where if Congress doesn't utilize a specific set of words that it is somehow not utilizing its 'War Power'

In point of fact the AUMF is Congress utilizing that War Power.

An AUMF or a DoW result in the same thing, it enabled the Executive Branch to utilize military force.

The 'war' / 'military force' distinction that you're attempting to make is farcical. In Hamdi v Rumsfeld, when determining if the President could take prisoners, the court opined, " In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here."

Therein you can see the synonymous nature of the terms.


To call it an official war recognizes Al Qaeda as a legitimate nation/military and we refuse to do that.

No, it doesn't. What's your authority for that? Congress' 'War Power' is unqualified, there's no law that says we can't be at 'war' with a sub-state actor. We've engaged in MANY military conflicts with less than state actors, that's not a 'thing' that a Declaration of War acts to 'recognize' the legitimacy of the belligerency. It just doesn't do that.


It is about the fact that they don't meet criteria under US or International Law and they are not a country.

International law and US law specifically notes the ability of less than state actors to engage in violence rising to the level of belligerency. It was Congress' determination that the force used constituted a sufficient threat to warrant the use of military force. Congress utilized its "War Power" and whether you want to call it a 'war' or the 'use of military force' it just isn't a distinction that makes a difference.

[Codename Section]

Then let's Pack our Shit and come Home ...

Ok! I'm with you. I've kept my mouth shut because of clearances, but I will say this many of the training accidents would have resulted in bodies being brought home missing eyes, heads, or burned alive.

If we were going in, we should have gone in hard, fast, decisively and not two fronted.

[Cigar]

They have ships now and planes.


We have Satellites, Nuclear Subs, Drones and Smart Weaponry :laugh: to pick them off before they board a ship or before a plane lifts off.

NEXT!

[Codename Section]

Why don't you look it up, smart guy? I went to law school, I learned this already.



Oh you learned it in law school. Silly me. Oh well, forget how we've been doing it for 10 years. Law schools have spoken! All of us are just imagining the last decade, I'm sure.

I can't wait til those law schools start enforcing this stuff. When do you think that will happen do you suppose?

[Codename Section]

We have Satellites, Nuclear Subs, Drones and Smart Weaponry :laugh: to pick them off before they board a ship or before a plane lifts off.

NEXT!

Yeh? Can you explain why Al Qaeda still exists then if its this easy?

[Cigar]

The purpose of spending Billions and Billions of American Tax Dollar on Smart Weaponry is so we don't have to endanger Americans and occupy countries.

So lets bring home all the troops and start using smart weapons for what they were invented for.

That's what Obama whats to do.

[Newpublius]

If I caught someone stealing when acting in a police capacity they were treated the same as AQ. Are you getting it now?

And the police would arrest the person, bring them 'downtown' and place them in jail, charge them (and depending on the severity of the offense probably release them), or perhaps arraign them, indict them....etc.....the fact that you're throwing them into orange jumpsuits and going through the machinations of a 'jail like' incarceration doesn't mean that you're not holding them as prisoners of war.

It doesn't have to look like a German Stalag. Its allowed to 'look like' jail as long as the incarceration isn't otherwise not in conformance with the GC.......

[Cigar]

Yeh? Can you explain why Al Qaeda still exists then if its this easy?


Al Qaeda don't exist in Illinois ... and that's good enough for me.

[Codename Section]

The purpose of spending Billions and Billions of American Tax Dollar on Smart Weaponry is so we don't have to endanger Americans and occupy countries.

So lets bring home all the troops and start using smart weapons for what they were invented for.

That's what Obama whats to do.


Dude, tell it to someone else with this is what he wants to do. He's the commander in chief, if he says come home, we come home.

[Codename Section]

And the police would arrest the person, bring them 'downtown' and place them in jail, charge them (and depending on the severity of the offense probably release them), or perhaps arraign them, indict them....etc.....the fact that you're throwing them into orange jumpsuits and going through the machinations of a 'jail like' incarceration doesn't mean that you're not holding them as prisoners of war.

It doesn't have to look like a German Stalag. Its allowed to 'look like' jail as long as the incarceration isn't otherwise not in conformance with the GC.......


I'm saying that if I picked up a surrendered member of the Iraqi army he was treated like a prisoner of war. If I picked up a member of AQ he got the same treatment as we gave looters while policing. They are not formal military in support of a nation.

The rules governing this have not caught up with the times.

But "law school" therefore I was imagining the last decade, I know....I know.

[Codename Section]

Al Qaeda don't exist in Illinois ... and that's good enough for me.

That's what you think.

[Newpublius]

Oh you learned it in law school. Silly me. Oh well, forget how we've been doing it for 10 years. Law schools have spoken! All of us are just imagining the last decade, I'm sure.

Well you're saying that a DoW and an AUMF are different in some way? In what way would it make a difference then. In both instances, whether the words utilized were 'declaration of war against al-qaida' or 'president is authorized to utilize military force against al-qaida' we'd be applying military force against al-qaida and when captured we'd be treating the captives as POWs until tried and convicted.

"Not every use of American military force has been conducted underthe aegis of a declaration of war. Far from it. Out of the more than 200 usesof force, war has only been declared by the U.S. Congress five times: theWar of 1812; the Mexican-American War; the Spanish-American War;World War I; and World War II.

However, while no conflict involving U.S. soldiers has involved casualties like those in World War I or II (126,000 dead and 234,300 wounded, and 407,289 dead and 671,846wounded, respectively), several have approached, if not surpassed, the world wars in terms of length (the Korean and Vietnam Wars, lasting three and nine [counting from the Gulf of Tonkin resolution until the withdrawal of U.S. troops] years, respectively).

Furthermore, while many of the more than 200 uses of force are fairly small-scale instances in terms of relevant measures such as intensity, scope, troops involved, and casualties, ranging from the use of U.S. air assets to strike at Libyan leader Moammar Qadaffito the invasions of Panama and Grenada, several others have involved largetroop deployments that strike most observers as “wars,” such as the first and second Persian Gulf wars. And yet, none of these conflicts was a war in the legal sense.

The key to understanding the necessity of a declaration of war is the scale and scope of the conflict. Under the framework developed in the previous section, the difference between a state of “war” and “not war” is the degree to which the President has been given power by Congress to actin a legislative manner in the domestic arena. Only in conflicts in whichsuch powers would be necessary for the prosecution of the fight would a declaration of war be needed."

It has no impact on the 'application of military force' paradigm

[Cigar]

Dude, tell it to someone else with this is what he wants to do. He's the commander in chief, if he says come home, we come home.


But But But ... these three cry babies will cry Cut-n-Run

http://www.secretsofthefed.com/wp-content/uploads/2013/04/mccain_graham.jpg (http://www.secretsofthefed.com/mccain-and-graham-suspect-dzhokhar-has-no-rights-and-should-be-enemy-combatant/)

[Cigar]

That's what you think.


I don't live in Fear ... I selectivly hand it out. :wink:

[Codename Section]

But But But ... these three cry babies will cry Cut-n-Run



So Obama is afraid of what a bunch of old white guys cry about? I thought he was a second term president with "back to back" wins as you tell us all the time.

You know, people do lie. The good ones lie and you believe their excuses. I told this girl in high school I loved her so she'd have sex with me.

Yeh.

[Newpublius]

I'm saying that if I picked up a surrendered member of the Iraqi army he was treated like a prisoner of war. If I picked up a member of AQ he got the same treatment as we gave looters while policing.

And apples aren't oranges, but in a BROADER sense they're both fruit, Codename. You don't need to treat the both THE SAME, you just need to treat both in accordance with the GC -- again, until you try and convict the member of Al-Qaida.

[Codename Section]

I don't live in Fear ... I selectivly hand it out. :wink:

Yeh, I dunno. You keep saying you're a software nerd. That doesn't really keep me awake at night like a guy who spent a year in some 3rd world shithole learning how to kill members of my family.

[nathanbforrest45]

Well well, he can't back it up. No surprise there. A man with no credibility what so ever. All mouth. No substance. A troll.


Everyone should know that by now. He just makes shit up and pretends he knows what he is talking about. I don't know why anyone would ever respond to him. Just as you can't argue with a two year old you can't really argue with someone who's only goal is to draw attention to itself.

[Codename Section]

And apples aren't oranges, but in a BROADER sense they're both fruit, Codename. You don't need to treat the both THE SAME, you just need to treat both in accordance with the GC -- again, until you try and convict the member of Al-Qaida.

Uh huh, so why haven't we for the last 12 years then? I mean, if you are right and I am wrong, then why hasn't the US government acted like you say they're supposed to act?

Don't tell me what you learned in law school, tell me why no one has forced any of this to end in the last 12 years. Why don't they have FULL Geneva protections in reality?

[Archer0915]

Obama did not break the law. He's the commander in chief vested with the constitutional authority to engage in such prisoner swaps. The Guantanamo Bay prisoners were just that....prisoners detained subject to the AUMF, as such they were essentially the equivalent of POWs and can be detained until the end of the war or for that matter unilaterally released or in this case, exchanged....much like Lincoln presided over a government that, prior to Grant, would routinely parole/exchange POWs.

Now of course the question, SHOULD he have done this? No. That's a completely different question from CAN he do this? The answer is unequivocvally YES.

Actually he did break the law. We have three branches of government for a reason and he went outside of his authority. It is in black and white!

[Newpublius]

Uh huh, so why haven't we for the last 12 years then? I mean, if you are right and I am wrong, then why hasn't the US government acted like you say they're supposed to act?

Because you're envisioning a 'POW' camp and aren't following that those 'camps' can take a variety of forms, even forms that don't normally resemble 'prisoner of war' camps. Aside from the abuse which we all know isn't in conformance with the GC, you're saying that Iraqi Army was treated one way, ie. presumably in accordance with your preconceived notions of a POW camp, and Al-Qaida another, ie. as you said like a thief or a looter; but the question that looms is, in what way is that NOT in conformance with the GC? Its different, yes, but nothing about it violates the GC -- except of course the actual abuse.


Why don't they have FULL Geneva protections in reality?

And yet the whole conundrum is that the Supreme Court stepped in the way to ensure that the Due Process given be in accordance with the Geneva Convention, finding the process being offered to be insufficient. Again, if you're just subjecting them to abuse, then you're subjecting them to abuse. You said it wasn't about summary abuse inflicted by guards, but rather disparate treatment, right? Disparate treatment is allowed. You're allowed to treat prisoners of war in different ways, just as long as those ways are in conformance with the GC....

[Newpublius]

Actually he did break the law. We have three branches of government for a reason and he went outside of his authority. It is in black and white!

Congress has the power to declare war, and to finance it; but because the President is the CinC of the armed forces, the conducting of the war is left in his hands, and may not be infringed upon by Congress. Not just prisoner exchanges, though they are of course included, but any conduct of the war is outside the hands of Congress. And since the President is, like you say, possessed of unilateral and uncheckable power to issue total reprieves and pardons, that constitutional power precludes any Congressional legislation to the contrary in this particular area.

[Alyosha]

So I looked this up and I'll ask Peter1469 for his opinion on it.

We have declared Al Qaeda unlawful enemy combatants, as opposed to enemy combatants (although Obama no longer uses the term). Lawful enemy combatants have habeas corpus rights since 2008, hence the release by Bush of 500 prisoners. Lawful enemy combatants receive full Geneva Convention statutes and would not be considered assets and would be eligible for exchanges of the type that Obama made. Because Al Qaeda are "non-state" actor terrorist groups the US SCOTUS did not include them for full eligibility and are therefore still bound under the 2006 Military Commissions Act of 2006 that states, "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights."

In 2009 changes were made for lawful combatants to include guaranteeing them some of our rights such as the right to a non-coerced testimony, appropriate legal representation, and the ability to call witnesses even in classified matters.

So, not knowing which these guys are (Obama as CIC is actually the one to declare them lawful or unlawful) my guess is that when he said he was wrong to not inform Congress, he is saying they were AQ and unlawful combatants who are considered "assets" of the state and not prisoners of war.

The Center for Constitutional Rights www.ccrjustice.org thinks Obama is in the wrong and agrees with NewPublius, but at the same time its an opinion. Lawyers can argue opinions and we're always right.

I'm correct that Obama should be impeached for his use of a drone to kill a 16 year old US citizen in Yemen because it is clearly unconstitutional although we have legislation which says that he can.

At the end of the day this is why I no longer have faith in the law because it is worthless without force and force happens with or without law.

The law is a security blanket that lets us sleep at night.

[Alyosha]

Because you're envisioning a 'POW' camp and aren't following that those 'camps' can take a variety of forms, even forms that don't normally resemble 'prisoner of war' camps.

Newpub,

he's telling you how things are as opposed to how you think they should be. I can tell you that we have the right to walk the streets without a cop asking us for ID but the fact is it happens every day and some court will allow it.

So you and I and Pete can have lovely arguments all day about legality and constitutionality and facets of international law but they really don't mean anything. We are now debating how many angels can dance on the head of a pin.

[Mainecoons]

Interestingly, Krauthammer supports Obama in making the deal while lambasting him for it.

http://www.washingtonpost.com/opinions/charles-krauthammer-free-bowe-bergdahl-then-try-him/2014/06/05/6aae0e50-ecd4-11e3-9f5c-9075d5508f0a_story.html


1. America doesn’t negotiate with terrorists.Nonsense. Of course we do. Everyone does, while pretending not to. The Israelis, by necessity the toughest of all anti-terror fighters, in 2011 gave up 1,027 prisoners (http://www.washingtonpost.com/world/national-security/bergdahls-unit-comrades-recount-his-disappearance/2014/06/03/7c30e53e-eb59-11e3-b10e-5090cf3b5958_story.html), some with blood on their hands, for one captured staff sergeant.
2. The administration did not give Congress 30-day notice as required by law.
Of all the jurisdictional disputes between president and Congress, the president stands on the firmest ground as commander in chief. And commanders have the power to negotiate prisoner exchanges.
Moreover, from where did this sudden assertion of congressional prerogative spring? After five years of supine acquiescence to President Obama’s multiple usurpations, Congress suddenly becomes exercised over a war power — where its claim is weakest. Congress does nothing in the face of 23 executive alterations (http://www.galen.org/newsletters/changes-to-obamacare-so-far/) of the president’s own Affordable Care Act. It does nothing when Obama essentially enacts (http://www.washingtonpost.com/politics/us-will-stop-deporting-some-illegal-immigrants-who-came-here-as-children/2012/06/15/gJQANBbseV_story.html) by executive order the Dream Act, which Congress had refused to enact. It does nothing when the Justice Departmentunilaterally rewrites drug laws (http://www.washingtonpost.com/opinions/charles-krauthammer-can-obama-write-his-own-laws/2013/08/15/81920842-05df-11e3-9259-e2aafe5a5f84_story.html). And now it rises indignantly on its hind legs because it didn’t get 30 days’ notice of a prisoner swap (http://www.washingtonpost.com/politics/debate-stirs-over-us-taliban-captive-swap/2014/06/02/cf276c70-ea25-11e3-b10e-5090cf3b5958_story.html)?

[Newpublius]

Interestingly, Krauthammer supports Obama in making the deal while lambasting him for it.

http://www.washingtonpost.com/opinions/charles-krauthammer-free-bowe-bergdahl-then-try-him/2014/06/05/6aae0e50-ecd4-11e3-9f5c-9075d5508f0a_story.html

[/FONT][/COLOR]

ie. he has the constitutional authority to be a 'bad' President. His Congressional "acquiescence" meme is drivel though.

[Codename Section]

Interestingly, Krauthammer supports Obama in making the deal while lambasting him for it.

http://www.washingtonpost.com/opinions/charles-krauthammer-free-bowe-bergdahl-then-try-him/2014/06/05/6aae0e50-ecd4-11e3-9f5c-9075d5508f0a_story.html

[/FONT][/COLOR]


That's because it's the Israelis, no conservative will ever disagree with them. :)

I noticed Pub rep'd you and wonder if he read the part where Krauthammer says it was an unlawful prisoner swap because he didn't give Congress the 30 days required by law. :rollseyes:


Personally? I'd swap 1000 of those assholes for the marine in Mexico, but not this fuck.

[Newpublius]

he's telling you how things are as opposed to how you think they should be.

No, he's stating a difference, but not noting how that difference actually doesn't conform with the GC. He's saying their detention resembles looters/thieves, ignoring the physical abuse, as opposed to a camp that looks like a German POW camp in WWII out of the Great Escape. Both can conform to the GC, the only real footnote IS the abuse which clearly doesn't conform to the GC, while the GC are lengthy, its that abuse which is the true mark of detention that either conforms with the GC...or doesn't.

[Peter1469]

International law is not like domestic law. It is based on treaty. But custom becomes even more important. We are dealing with sovereigns here.

Formal treaty law (GCs) recognizes two groups: civilians and combatants. Combatants have combatant immunity- they can kill people without penalty so long as they follow the laws of war. But to be a combatant you have to meet all of the check list. Formal international law doesn't deal with illegal combatants. They toss them into the civilian pile and then local nations deal with them accordingly.

That is changing via custom. Treaties are fine. But they don't mean much. How sovereign nation states act on a consistent basis is much more important. We are seeing nations recognizing this transnational threat and realizing it isn't a law enforcement matter. It is war. We are seeing the creation of a third class of people: unlawful combatants. I am not sure that it will ever be codified in the GCs but it certainly will become customary international law.


So I looked this up and I'll ask @Peter1469 (http://thepoliticalforums.com/member.php?u=10) for his opinion on it.

We have declared Al Qaeda unlawful enemy combatants, as opposed to enemy combatants (although Obama no longer uses the term). Lawful enemy combatants have habeas corpus rights since 2008, hence the release by Bush of 500 prisoners. Lawful enemy combatants receive full Geneva Convention statutes and would not be considered assets and would be eligible for exchanges of the type that Obama made. Because Al Qaeda are "non-state" actor terrorist groups the US SCOTUS did not include them for full eligibility and are therefore still bound under the 2006 Military Commissions Act of 2006 that states, "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights."

In 2009 changes were made for lawful combatants to include guaranteeing them some of our rights such as the right to a non-coerced testimony, appropriate legal representation, and the ability to call witnesses even in classified matters.

So, not knowing which these guys are (Obama as CIC is actually the one to declare them lawful or unlawful) my guess is that when he said he was wrong to not inform Congress, he is saying they were AQ and unlawful combatants who are considered "assets" of the state and not prisoners of war.

The Center for Constitutional Rights www.ccrjustice.org (http://www.ccrjustice.org) thinks Obama is in the wrong and agrees with NewPublius, but at the same time its an opinion. Lawyers can argue opinions and we're always right.

I'm correct that Obama should be impeached for his use of a drone to kill a 16 year old US citizen in Yemen because it is clearly unconstitutional although we have legislation which says that he can.

At the end of the day this is why I no longer have faith in the law because it is worthless without force and force happens with or without law.

The law is a security blanket that lets us sleep at night.

[Newpublius]

I noticed Pub rep'd you and wonder if he read the part where Krauthammer says it was an unlawful prisoner swap because he didn't give Congress the 30 days required by law. :rollseyes:


Dude, seriously, you need to read before writing.

He's arguing AGAINST that assertion:

"If he had served with honor and distinction, there would be no national uproar over his ransom and some of the widely aired objections to the deal would be as muted as they are flimsy. For example:"

"2. The administration did not give Congress 30-day notice as required by law.

Of all the jurisdictional disputes between president and Congress, the president stands on the firmest ground as commander in chief. And commanders have the power to negotiate prisoner exchanges.

Moreover, from where did this sudden assertion of congressional prerogative spring? After five years of supine acquiescence to President Obama’s multiple usurpations, Congress suddenly becomes exercised over a war power — where its claim is weakest. Congress does nothing in the face of 23 executive alterations (http://www.galen.org/newsletters/changes-to-obamacare-so-far/) of the president’s own Affordable Care Act. It does nothing when Obama essentially enacts (http://www.washingtonpost.com/politics/us-will-stop-deporting-some-illegal-immigrants-who-came-here-as-children/2012/06/15/gJQANBbseV_story.html) by executive order the Dream Act, which Congress had refused to enact. It does nothing when the Justice Department unilaterally rewrites drug laws (http://www.washingtonpost.com/opinions/charles-krauthammer-can-obama-write-his-own-laws/2013/08/15/81920842-05df-11e3-9259-e2aafe5a5f84_story.html). And now it rises indignantly on its hind legs because it didn’t get 30 days’ notice of a prisoner swap (http://www.washingtonpost.com/politics/debate-stirs-over-us-taliban-captive-swap/2014/06/02/cf276c70-ea25-11e3-b10e-5090cf3b5958_story.html)? "


"The administration did not give Congress 30-day notice as required by law."

A widely aired objection Krauthammer is arguing against.

[Codename Section]

No, he's stating a difference, but not noting how that difference actually doesn't conform with the GC. He's saying their detention resembles looters/thieves, ignoring the physical abuse, as opposed to a camp that looks like a German POW camp in WWII out of the Great Escape. Both can conform to the GC, the only real footnote IS the abuse which clearly doesn't conform to the GC, while the GC are lengthy, its that abuse which is the true mark of detention that either conforms with the GC...or doesn't.

No, I'm pretty much saying that AQ is not given GC because a) they are nation-less and b) they chop off heads and eat hearts. They are unlawful combatants...unlike the Taliban or Iraqi troops were.

[Newpublius]

They toss them into the civilian pile and then local nations deal with them accordingly.

No, it doesn't. It specifically doesn't do that, it does the EXACT opposite actually, it holds them IN combatant status until 'local nations deal with them accordingly'

[Codename Section]

Dude, seriously, you need to read before writing.

He's arguing AGAINST that assertion:

"If he had served with honor and distinction, there would be no national uproar over his ransom and some of the widely aired objections to the deal would be as muted as they are flimsy. For example:"

"2. The administration did not give Congress 30-day notice as required by law.

Of all the jurisdictional disputes between president and Congress, the president stands on the firmest ground as commander in chief. And commanders have the power to negotiate prisoner exchanges.

Moreover, from where did this sudden assertion of congressional prerogative spring? After five years of supine acquiescence to President Obama’s multiple usurpations, Congress suddenly becomes exercised over a war power — where its claim is weakest. Congress does nothing in the face of 23 executive alterations (http://www.galen.org/newsletters/changes-to-obamacare-so-far/) of the president’s own Affordable Care Act. It does nothing when Obama essentially enacts (http://www.washingtonpost.com/politics/us-will-stop-deporting-some-illegal-immigrants-who-came-here-as-children/2012/06/15/gJQANBbseV_story.html) by executive order the Dream Act, which Congress had refused to enact. It does nothing when the Justice Department unilaterally rewrites drug laws (http://www.washingtonpost.com/opinions/charles-krauthammer-can-obama-write-his-own-laws/2013/08/15/81920842-05df-11e3-9259-e2aafe5a5f84_story.html). And now it rises indignantly on its hind legs because it didn’t get 30 days’ notice of a prisoner swap (http://www.washingtonpost.com/politics/debate-stirs-over-us-taliban-captive-swap/2014/06/02/cf276c70-ea25-11e3-b10e-5090cf3b5958_story.html)? "


"The administration did not give Congress 30-day notice as required by law."

A widely aired objection Krauthammer is arguing against.


Uh huh, so why then if this is completely true did Obama apologize and say he wouldn't have done it but it was an emergency? Why not say: fuck off?

That's been my original point was that he shouldn't have apologized if he was in the right. Then when you kept saying they were POWs and owed GCs then I told you "no" they aren't treated as POWs and given GCs.

I hope honestly they never are since the days of stand up warfare are long gone. Burning marines and soldiers with irons, digging out their eyes, and then chopping their fucking heads off is the type of inhuman shit that we're supposed to face and turn the other cheek on? If you are the type of creature that eats hearts jail and rights are meaningless to you. Dropping them in a vat of acid is too good for them.

[Codename Section]

And while I'm at it, I speak for myself not Pete or anyone else. I think an orange jumpsuit is too good for some of these guys.

[Codename Section]

No, it doesn't. It specifically doesn't do that, it does the EXACT opposite actually, it holds them IN combatant status until 'local nations deal with them accordingly'

Right, can you give some real world examples of this? Not law school stuff, but can you show us where they are held in combatant status by the US, Iraq, KSA, or Russia?

I want to learn. Teach me.

[Newpublius]

No, I'm pretty much saying that AQ is not given GC because a) they are nation-less and b) they chop off heads and eat hearts. They are unlawful combatants...unlike the Taliban or Iraqi troops were.

And that's why they executed Dostler per the above video. The soldiers he executed weren't entitled to GC protection because they weren't wearing uniforms and their execution would've been proper if given the appropriate hearing, which, for WWII wasn't much.

In our heads, we know the ultimate designation for AQ, which we agree on by the way. But to get to that designation you have to provide Due Process and try and convict them; until then they are prisoners subject to detention 'for the duration of the conflict' to be held in conformance with the GC.

And just as an aside if you try and convict them, that doesn't make them subject to abuse, it makes them subject to JUDICIAL punishment.

[Newpublius]

Right, can you give some real world examples of this? Not law school stuff, but can you show us where they are held in combatant status by the US, Iraq, KSA, or Russia?

I want to learn. Teach me.

Many are filing habeas petittions and they're not getting released based on concepts of Due Process, ie. we are currently holding Al-Qaida prisoners 'for the duration' -- a POW, until tried and convicted.

[Codename Section]

And that's why they executed Dostler per the above video. The soldiers he executed weren't entitled to GC protection because they weren't wearing uniforms and their execution would've been proper if given the appropriate hearing, which, for WWII wasn't much.

In our heads, we know the ultimate designation for AQ, which we agree on by the way. But to get to that designation you have to provide Due Process and try and convict them; until then they are prisoners subject to detention 'for the duration of the conflict' to be held in conformance with the GC.

And just as an aside if you try and convict them, that doesn't make them subject to abuse, it makes them subject to JUDICIAL punishment.


I'm really not arguing the 1940s when German troops or former German troops did shit. I totally understand that you think it is acceptable that they don't hold themselves accountable to law but that we should.

I'm sure our court systems scare the shit out of them. Really.

Anyway, back to do you understand what unlawful enemy combatants are and can you explain the difference in them and enemy combatants? I'm trying to learn.

[Codename Section]

Many are filing habeas petittions and they're not getting released based on concepts of Due Process, ie. we are currently holding Al-Qaida prisoners 'for the duration' -- a POW, until tried and convicted.

You're showing me they are "held", I'm asking you to show me where they are held as lawful combatants, and the duration is what in the war on terror? The end of time? What's the duration?

[Newpublius]

That's been my original point was that he shouldn't have apologized if he was in the right.

You can possess the POWER to do something and not be 'in the right' -- they are two different things. I employ people, I don't arbitrary and capriciously terminate their employment, to do so would be morally wrong even though the general rule of at-will employment is that I can terminate an employee for ANY reason, even a morally wrong reason." [btw that's the common law rule and has been seriously modified by statutory law]. Obama made some argument with respect to leaving 'nobody behind' - this is an 'equitable argument' -- for Obama to argue that he's the President and simply possesses unilateral constitutional authority to do this rubs against our traditional notions of 'equity' which ultimately in the court of public opinion is what matters. He knows better than to do that, but in point of fact he can let anybody in his custody go, for any reason, at any time. {We trust the President with this authority}

[Codename Section]

You can possess the POWER to do something and not be 'in the right' -- they are two different things. I employ people, I don't arbitrary and capriciously terminate their employment, to do so would be morally wrong even though the general rule of at-will employment is that I can terminate an employee for ANY reason, even a morally wrong reason." [btw that's the common law rule and has been seriously modified by statutory law]. Obama made some argument with respect to leaving 'nobody behind' - this is an 'equitable argument' -- for Obama to argue that he's the President and simply possesses unilateral constitutional authority to do this rubs against our traditional notions of 'equity' which ultimately in the court of public opinion is what matters. He knows better than to do that, but in point of fact he can let anybody in his custody go, for any reason, at any time. {We trust the President with this authority}

He's CIC, why apologize?

[Newpublius]

You're showing me they are "held", I'm asking you to show me where they are held as lawful combatants,

Lawful/Unlawful, how would the detention differ, really? In WWII, the distinction is that those convicted faced the noose in many instances or additional detention AFTER the 'duration of the conflict' -- if tried and convicted DURING the conflict, odds are you were facing a firing squad like those members of the German military who took part in Operation Greif.


and the duration is what in the war on terror? The end of time? What's the duration?

A nonjusticiable political question. I understand the sentiment and I wrote an article about the threat of 'perpetual war' but there is no qualification or time limit placed on Congress' prerogative in this respect. Perpetual doesn't mean 'forever' by the way, it means until 'lawfully terminated'

Point is all military conflicts are open ended. There's no inherent time limit placed on them, some take longer than others.

[Newpublius]

He's CIC, why apologize?

Did he?

http://www.cnn.com/2014/06/05/politics/bowe-bergdahl-release/

"I make absolutely no apologies for making sure we get a young man back to his parents," Obama told reporters Thursday at the end of the G7 summit in Belgium."

Not to mention, even say he did apologize, that's not a waiver of constitutional authority, if I fire you and then admit that I was wrong and am 'sorry' that I fired you, am I conceding that I didn't possess the authority to fire you? No, of course not.

[Archer0915]

See sections 1028

http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf

Impeach!

[Archer0915]

No reply... Here:
SEC. 1028. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STA- TION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES. (a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.— (1) IN GENERAL.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or con- trol of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary sub- mits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual. (2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate— (A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Sec- retary shall notify Congress of promptly after issuance); or (B) a pre-trial agreement entered in a military commis- sion case prior to the date of the enactment of this Act. (b) CERTIFICATION.—A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that— (1) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred— (A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization; (B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility; (C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual; (D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future; (E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any ter- rorist activity; and (F) has agreed to share with the United States any information that—

[Peter1469]

No, it doesn't. It specifically doesn't do that, it does the EXACT opposite actually, it holds them IN combatant status until 'local nations deal with them accordingly'

You are technically wrong, although most nations understand this lapse in international law and act accordingly. But I doubt you know that. You are just wrong.

[Newpublius]

I totally understand that you think it is acceptable that they don't hold themselves accountable to law but that we should.

Who said anything of the sort? Nobody. The law should absolutely hold them accountable for their actions, but there's Due Process to be considered. With respect to Dostler, he didn't provide that Due Process and as a result he was held accountable, and if we do likewise with Al-Qaida we theoretically could be held accountable, though obviously the reality is one of victor's justice. That doesn't change the premise. Al-Qaida CAN and SHOULD be held accountable. But until then, they're POW's held for the duration of the conflict.

[Codename Section]

Who said anything of the sort? Nobody. The law should absolutely hold them accountable for their actions, but there's Due Process to be considered. With respect to Dostler, he didn't provide that Due Process and as a result he was held accountable, and if we do likewise with Al-Qaida we theoretically could be held accountable, though obviously the reality is one of victor's justice. That doesn't change the premise. Al-Qaida CAN and SHOULD be held accountable. But until then, they're POW's held for the duration of the conflict.




So why don't we treat them like POWs? Do you think everyone on up to the president should be arrested?

[Peter1469]

So why don't we treat them like POWs? Do you think everyone on up to the president should be arrested?
Combatants are treated differently from civilians. Many people miss that point.

[Codename Section]

Combatants are treated differently from civilians. Many people miss that point.

Like the people there, they don't want AQ there either. That's why I don't think of them as "soldiers" or "combatants" either. They're annoying pieces of violent shit criminal fuckers, pretty much, oh who are disgusting cannibals. Yeh. They suck.

I think the spider bite made me high, I feel goofy.

[Newpublius]

You are technically wrong, although most nations understand this lapse in international law and act accordingly. But I doubt you know that. You are just wrong.


No, its quite the reverse actually. I'm not 'technically' wrong, you're obstinately wrong no less. You're doing so against an argument that actually cites to authority. You can’t cite to authority because your argument is bullshit Not only that but you lack basic cohesion.


“So they are really civilians under the law."


“I am not calling al Qaeda civilians. You need to learn to listen.”


“Combatant. Civilian. To be a combatant you have to meet certain requirements. Transnational terrorists don't meet those requirements.”


Very simple binary jarhead logic and its wrong and its pointed out to you why its wrong. Its why you’re a ‘C’ student and refer to ‘secession’ as ‘succession’ and it illuminates a superficial command of the subject material. If you’re not a combatant {entitled to GC protection} that doesn’t make you a civilian, it makes you a combatant NOT entitled to GC protection but you’re a combatant entitled to that protection until the trial and conviction. That’s the actual right fucking answer. It expressly says that.

[Peter1469]

That is why nations should push for a change in international law (like that Newbie guy thinks already happened :shocked:) to create a third category of people- illegal combatants along side combatants and civilians.


Like the people there, they don't want AQ there either. That's why I don't think of them as "soldiers" or "combatants" either. They're annoying pieces of violent shit criminal fuckers, pretty much, oh who are disgusting cannibals. Yeh. They suck.

I think the spider bite made me high, I feel goofy.

[Newpublius]

Like the people there, they don't want AQ there either. That's why I don't think of them as "soldiers" or "combatants" either.

And yet you referred to them as 'unlawful' combatants, which is what they are.

[Peter1469]

Wrong.



No, its quite the reverse actually. I'm not 'technically' wrong, you're obstinately wrong no less. You're doing so against an argument that actually cites to authority. You can’t cite to authority because your argument is bullshit Not only that but you lack basic cohesion.


“So they are really civilians under the law."


“I am not calling al Qaeda civilians. You need to learn to listen.”


“Combatant. Civilian. To be a combatant you have to meet certain requirements. Transnational terrorists don't meet those requirements.”


Very simple binary jarhead logic and its wrong and its pointed out to you why its wrong. Its why you’re a ‘C’ student and refer to ‘secession’ as ‘succession’ and it illuminates a superficial command of the subject material. If you’re not a combatant {entitled to GC protection} that doesn’t make you a civilian, it makes you a combatant NOT entitled to GC protection but you’re a combatant entitled to that protection until the trial and conviction. That’s the actual right fucking answer. It expressly says that.

[Newpublius]

Wrong.

You're ignorant.

[Codename Section]

No, its quite the reverse actually. I'm not 'technically' wrong, you're obstinately wrong no less. You're doing so against an argument that actually cites to authority. You can’t cite to authority because your argument is bullshit Not only that but you lack basic cohesion.


Dude. No one in the field, no one, refers to them as POWs. We know they are unlawful combatants and do not afford them the respect of lawful combatants.

Why? Because they are not. Let me explain so you get it. Mumia Abu Jamal the guy who killed the cop and is in jail now. Is he a POW?

No, right? Just because they are in war zone shooting, making bombs, and murdering people doesn't mean they are the lawful defender of that nation or that they are recognized as a nation. Go read the CFR papers on it and the court decisions.

They are just criminals in the wrong place. For ten years no one has treated them like soldiers, so you may say all this is true on paper but we've never been stood and defended ourselves at the Hague and not Bush or Obama has stood for war crimes or been impeached for the REALITY of how they are treated.

There's reality and then there's this legal religious mumbo jumbo you keep spouting.

[Newpublius]

That is why nations should push for a change in international law (like that Newbie guy thinks already happened :shocked:) to create a third category of people- illegal combatants along side combatants and civilians.

Until the conviction they're combatants entitled to the protection of the Geneva Convention, not civilians Peter. I've made my case and proven it and you haven't, I can't say it any other way. "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal"

[Codename Section]

And yet you referred to them as 'unlawful' combatants, which is what they are.

For you, so I can explain it. I already told you we call them assholes.

[Codename Section]

Until the conviction they're combatants entitled to the protection of the Geneva Convention, not civilians Peter. I've made my case and proven it and you haven't, I can't say it any other way. "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal"

If you've proven your case, then why then hasn't Bush and Obama been tried for high crimes since we don't do all this shit you're talking about for them?

[Newpublius]

Dude. No one in the field, no one, refers to them as POWs.

I don't care what you call them. You can call them detainees, or enemy combatants or combatants or unlawful combatants. The point is that they AREN'T civilians. They are people who you captured during an armed conflict and as such are being held 'for the duration' of the conflict. The term 'POW' has simply gone out of vogue, but that doesn't change the application of military force and its incidents. In this case to detain people who you are actually engaged in hostilities with.

[Peter1469]

If you've proven your case, then why then hasn't Bush and Obama been tried for high crimes since we don't do all this shit you're talking about for them?

He just wants to believe he knows what he is talking about. I am OK with that.

[Newpublius]

If you've proven your case, then why then hasn't Bush and Obama been tried for high crimes since we don't do all this shit you're talking about for them?

The point Codename is that if Peter is right, and they're civilians they should be tried for holding civilians. They're not though, they're the equivalent of POWs being held 'for the duration' of the conflict. Peter even goes so far as to think that targeting Osama bin Laden was 'technically' murder after all, he's a civilian right?

You cannot apply military force against civilians. That's why the Haditha killings were unlawful. Al-Qaida are not civilians because they are engaged in belligerent actions and that is why the US military can target and kill them WITH MILITARY FORCE. The killing of Osama bin Laden was not 'technically' murder, it was the lawful application of military force against a legitimate military target. If that military force had resulted in his capture, he doesn't revert to 'civilian status' -- he's not a combatant entitled to protection under article iv, that doesn't make him a civilian, Peter's binary logic is ridiculous actually, he becomes a combatant NOT entitled to protection under article iv, but until you try and convict him he is entitled to that protection per the express terms of the GC.

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

[Codename Section]

I don't care what you call them. You can call them detainees, or enemy combatants or combatants or unlawful combatants. The point is that they AREN'T civilians. They are people who you captured during an armed conflict and as such are being held 'for the duration' of the conflict. The term 'POW' has simply gone out of vogue, but that doesn't change the application of military force and its incidents. In this case to detain people who you are actually engaged in hostilities with.

They are pretty much civilians.

1. They don't get paid as a soldier
2. They aren't fighting on behalf of the nation they are in and in many cases are fighting against the citizens if they aren't crazy like they are
3. They weren't invited to fight
4. They don't fight under any nation banner or have even a fake nation
5. There is a reason Tsarnaev is in a US jail and not being tried as a soldier.
6. They don't follow rules of war

Iraq and Afghanistan did not want these fucks. Abu Ghraib scared the sit out of the Iraqis because of who they had housed in there. They are just criminals not soldiers, the way the crips and the bloods and MS13 aren't soldiers.

[Codename Section]

The point Codename is that if Peter is right, and they're civilians they should be tried for holding civilians. They're not though, they're the equivalent of POWs being held 'for the duration' of the conflict.


But no one will because you're wrong on this one, and because no one cares to. Just like no one is trying Obama for murdering that 16 year old American and why people bitch about assassination lists but really don't care enough to do anything about them. Also other countries know they're going to have to deal with AQ soon and don't want any precedence in the matter.

We don't treat them like soldiers. Period. End of story. Sorry you think we do.

[Newpublius]

They are pretty much civilians.

1. They don't get paid as a soldier
2. They aren't fighting on behalf of the nation they are in and in many cases are fighting against the citizens if they aren't crazy like they are
3. They weren't invited to fight
4. They don't fight under any nation banner or have even a fake nation
5. There is a reason Tsarnaev is in a US jail and not being tried as a soldier.
6. They don't follow rules of war

Iraq and Afghanistan did not want these fucks. Abu Ghraib scared the sit out of the Iraqis because of who they had housed in there. They are just criminals not soldiers, the way the crips and the bloods and MS13 aren't soldiers.

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

They're not civilians. You're conflating honorable soldiers with scumbag belligerents, but there's no condition that belligerents be honorable. You're showing why their belligerency is unlawful actually not why they're civilians. As far as the gangs are concerned, if Congress felt a MILITARY threat emanating from them, Congress COULD decide to employ military force against them. In a certain sense Mexico has done that and narco-traffiking was sufficient to almost bring Colombia to its knees.

All terrorists are criminals, SOME terrorists are belligerents contemplated by the AUMF, the fact that some terrorists are belligerents doesn't make any terrorist any less of a criminal.

[Newpublius]

But no one will because you're wrong on this one, and because no one cares to. Just like no one is trying Obama for murdering that 16 year old American and why people bitch about assassination lists but really don't care enough to do anything about them. Also other countries know they're going to have to deal with AQ soon and don't want any precedence in the matter.

We don't treat them like soldiers. Period. End of story. Sorry you think we do.

Because you think of yourself as a 'soldier' and won't place them in the same category as yourself and you're right not to. But they are belligerents and you are allowed to engage them with military force, something you can't do with civilians, and when captured, you're supposed to be treating them like any other POW. Fact is civilian/combatant frankly you're not supposed to be treating them any differently anyway, the difference lies in the procedure. Civilians need to be arrested, arraigned, indicted, tried and convicted and combatants can be held 'for the duration of the conflict.' -- you're not allowed to 'abuse' either class.

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

"Just like no one is trying Obama for murdering that 16 year old American and why people bitch about assassination lists but really don't care enough to do anything about them."

Assassinations apply only to 'internationally protected persons' by the way, you can look that up too. Indeed, the US can actually target its enemies and then kill them, that's what war is, every instance of military force is extrajudicial, that's what it is by definition.

The fact that somebody is a US citizen doesn't mean he's not also a belligerent fighting against the United States. That's what de jure treason is, actually levying war against the United States. And while there are standards to convict you of that offense like in the Lindh case, until Lindh was captured you could've targeted him and shot him dead.

With respect to Yemen, you're discussing Aulaqi and his son also spelled al-Awlaki and he was targeted and killed and his 16 year old was with him. Collateral damage does happen in warfare. The question there is merely one of proportionality, it was the military force militarily necessary under the circumstances. Answer it yes or no, I don't care, but the son is collateral damage actually, they weren't targetting the son, they were targetting Aulaqi and bin Laden and both were military targets.

[Codename Section]

Because you think of yourself as a 'soldier' and won't place them in the same category as yourself and you're right not to. But they are belligerents and you are allowed to engage them with military force, something you can't do with civilians, and when captured, you're supposed to be treating them like any other POW. Fact is civilian/combatant frankly you're not supposed to be treating them any differently anyway, the difference lies in the procedure. Civilians need to be arrested, arraigned, indicted, tried and convicted and combatants can be held 'for the duration of the conflict.

What makes them soldiers, in your opinion?

[Newpublius]

"The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=317&page=28). The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when 'no quarter' was the rule on the battlefield ... . It is now recognized that 'Captivity is neither a punishment nor an act of vengeance,' but 'merely a temporary detention which is devoid of all penal character.' ... 'A prisoner of war is no convict; his imprisonment is a simple war measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released" (footnotes omitted)). There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20 (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=317&page=20). We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict." - http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696

[Codename Section]

Not sure who that was for. I'm asking you, Newp, why you feel that Al Qaeda are soldiers. So why are they soldiers in your opinion and words?

[Newpublius]

What makes them soldiers, in your opinion?

Congress has determined that their actions have risen to the level of belligerency. I call them 'war criminals' myself, not soldiers. There's no requirement that the AUMF target 'soldiers' -- the AUMF targets Al-Qaida. Can the Executive Branch utilize military force against Al-Qaida? The answer is yes.

[Newpublius]

Not sure who that was for. I'm asking you, Newp,

Its time that you started to absorb and internalize what it means because I'm not quite sure what about that is eluding you.

[Codename Section]

Congress has determined that their actions have risen to the level of belligerency. I call them 'war criminals' myself, not soldiers.

What so Congress decides who is a soldier, is that right?

[Codename Section]

Its time that you started to absorb and internalize what it means because I'm not quite sure what about that is eluding you.

I just know how it actually works in the field, so you sending me statutes pretty much is meaningless to me. They are not treated like a nation's soldiers, they are not considered prisoners of war, just prisoners we can't figure out what to do with. If this pisses you off I suggest you sue the government for its criminal activity. Not my call.

[Newpublius]

What so Congress decides who is a soldier, is that right?

They are absolutely vested with the political power to determine what constitutes a military threat and what doesn't. There's no qualification to the 'War Power' -- Soldiers aren't the only individuals capable of representing a military threat. I don't know why you're stuck on the term.

[Codename Section]

They are absolutely vested with the political power to determine what constitutes a military threat and what doesn't. There's no qualification to the 'War Power' -- Soldiers aren't the only individuals capable of representing a military threat. I don't know why you're stuck on the term.

No, I asked why you thought that Al Qaeda were soldiers and deserved all the GC rights and you respond with Congress decides belligerents. Now, I know enough from dealing with Rina constantly that you're just afraid for some reason to tell me what YOU, newp, think a soldier is and I have to say its the most annoying thing about hanging out with attorneys.

If you don't feel like putting your dick out then don't, but don't give me what I don't or didn't ask for with the responses you're giving. I get that you don't want to answer because you don't really know. Just say it.

Don't say "Congress decides belligerents" because we know that's not true.

[Codename Section]

They are absolutely vested with the political power to determine what constitutes a military threat and what doesn't. There's no qualification to the 'War Power' -- Soldiers aren't the only individuals capable of representing a military threat. I don't know why you're stuck on the term.

Because the subject is the Geneva Conventions and why Prisoner A gets afforded all of the rights of it and Prisoner B doesn't, not what constitutes a military threat.

Again, if you don't feel like taking a stab at defining it then don't. Just say, I don't feel like it.

Like for example right now I don't feel like posting on this subject anymore.

[Newpublius]

I just know how it actually works in the field, so you sending me statutes pretty much is meaningless to me.

Its caselaw and its not exactly that dense, read it and grasp it.


They are not treated like a nation's soldiers,

While they are 'field' engaged in hostilities they are. They can be targeted and killed just like soldiers are.


they are not considered prisoners of war,

Well, they are until they're convicted in a way very similar to the SS war criminals.

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)."

What does the above quote mean to you. Because if you're maintaining that we're not considering them as prisoners of war how do you reconcile that with 'detention for the duration of hostilities in accordance with the AUMF'?


just prisoners we can't figure out what to do with.

No, we don't know how to deal with their criminality. Their belligerency? We have no problem with that one iota. We shoot them dead on the battlefield and then hold them captive 'for the duration of hostilities'


If this pisses you off

Caselaw speaks for itself.

[Newpublius]

Because the subject is the Geneva Conventions and why Prisoner A gets afforded all of the rights of it and Prisoner B doesn't, not what constitutes a military threat.

The subject was the prisoner exchange and has morphed. Prisoner A and Prisoner B were both military threats. Prisoner A meets the criteria of Article IV, is thereby subject to 'immunity' from prosecution for belligerent acts committed based on his (or her) lawful belligerency and is released at the end of the conflict. Prisoner B, Al-Qaida, is not and can be tried and convicted for crimes/war crimes because his or her belligerency is NOT protected by Article IV.


Again, if you don't feel like taking a stab at defining it then don't. Just say, I don't feel like it.

I did, again and again and again.....


Like for example right now I don't feel like posting on this subject anymore

Then don't, and don't bother reading the quotes then, but the quotes speak for themselves. Parse it out sentence by sentence and it makes perfect sense
----------------------------------------------------------------
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war."


The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.

There is no bar to this Nation's holding one of its own citizens as an enemy combatant.

In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen.
We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war."

While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities.

Nor can we see any reason for drawing such a line here.

A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"
--------------------

That's the Supreme Court, so no, I'm not wrong.

[Alyosha]

Its caselaw and its not exactly that dense, read it and grasp it.

There is a lot of laws and a lot of caselaw, and then there is what really happens. Caselaw doesn't speak for itself. It's just writing and until enforced is pretty much meaningless because it can still be challenged again. That is why we have jobs, and what we're supposed to be doing with our time for money. If everyone followed laws to the letter I wouldn't have a Land Rover or a nice house in the country.

I have a husband who died a US marine. I am not unfamiliar with the reality of the situation in Gitmo and elsewhere. This is a clear case of something that is not addressed in any type of reality but something that the the ACLU, Rutherford and others still see as an area that needs to be addressed.

If you agree and it seems you do because you keep arguing with Pete and Code, then take your own time and do something about it. We all have causes, fight for yours because what you are saying is just not what it happening.

[Newpublius]

There is a lot of laws and a lot of caselaw, and then there is what really happens. Caselaw doesn't speak for itself.

It does though. The instant dispute is over Al-Qaida's status as 'civilians' which is an erroneous classification. You can dispute it all day long but the law of the land is clear, Al-Qaida is subject to detention for the duration of the conflict.


until enforced

It is though. They're challenging their designation and their detentions are upheld and they are still being detained accordingly. We actually are currently holding them 'for the duration'


This is a clear case of something that is not addressed in any type of reality but something that the the ACLU, Rutherford and others still see as an area that needs to be addressed.

The contest isn't over their 'detention for the duration of the conflict' the contest is over the quantum of Due Process necessary to make them war criminals. That is what is being contested. The WWII quantum of Due Process which would've been applicable in Quirin, Eisentrager, etc is no longer applicable.

It is addressed in reality because it exists in reality. As a society we've come to a broad consensus that subjecting the prisoner to abuse and torture is unlawful. We've come to the conclusion that the AUMF warrants their detention for the duration of the conflict. The only thing that we haven't come to a consensus on is the modicum of Due Process necessary to convict them of crimes. Bush' military tribunals didn't pan out, we'll eventually see how Obama's MCA of 2009 pans out.


do something about it.

I don't want to do anything about the paradigm. I think that SHOULD be the paradigm.

[Newpublius]

No reply... Here:
SEC. 1028. REQUIREMENTS FOR CERTIFICATIONS RELATING TO THE TRANSFER OF DETAINEES AT UNITED STATES NAVAL STA- TION, GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER FOREIGN ENTITIES. (a) CERTIFICATION REQUIRED PRIOR TO TRANSFER.— (1) IN GENERAL.—Except as provided in paragraph (2) and subsection (d), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense for fiscal year 2012 to transfer any individual detained at Guantanamo to the custody or con- trol of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary sub- mits to Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual. (2) EXCEPTION.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate— (A) an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Sec- retary shall notify Congress of promptly after issuance); or (B) a pre-trial agreement entered in a military commis- sion case prior to the date of the enactment of this Act. (b) CERTIFICATION.—A certification described in this subsection is a written certification made by the Secretary of Defense, with the concurrence of the Secretary of State and in consultation with the Director of National Intelligence, that— (1) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo is to be transferred— (A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization; (B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility; (C) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual; (D) has taken or agreed to take effective actions to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future; (E) has taken or agreed to take such actions as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any ter- rorist activity; and (F) has agreed to share with the United States any information that—

This is the relevant portion of the statute but one thing that you need to understand is that statutes don't modify the constitution. If Congress passed a law that said the first amendment is void, it wouldn't alter the constitution one iota. Congress can pass a statute saying, "Don't release Tom" and Obama can say, "Fuck you, I don't care what statute you write because at the end of the day I possess CONSTITUTIONAL AUTHORITY to let Tom go"

He can let anybody go, at any time, anywhere, for any reason, even a bad reason. Its a power SPECIFICALLY granted to the President and there's nothing Congress can do about it.

[Peter1469]

You have represented my position incorrectly. It doesn't surprise me. Most people, even lawyers do not understand how international law works.


The point Codename is that if Peter is right, and they're civilians they should be tried for holding civilians. They're not though, they're the equivalent of POWs being held 'for the duration' of the conflict. Peter even goes so far as to think that targeting Osama bin Laden was 'technically' murder after all, he's a civilian right?

You cannot apply military force against civilians. That's why the Haditha killings were unlawful. Al-Qaida are not civilians because they are engaged in belligerent actions and that is why the US military can target and kill them WITH MILITARY FORCE. The killing of Osama bin Laden was not 'technically' murder, it was the lawful application of military force against a legitimate military target. If that military force had resulted in his capture, he doesn't revert to 'civilian status' -- he's not a combatant entitled to protection under article iv, that doesn't make him a civilian, Peter's binary logic is ridiculous actually, he becomes a combatant NOT entitled to protection under article iv, but until you try and convict him he is entitled to that protection per the express terms of the GC.

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

[Newpublius]

You have represented my position incorrectly. It doesn't surprise me. Most people, even lawyers do not understand how international law works.

No, it was up to you to represent your position and you did so. It was not my representation of your position that was incorrect, its your position itself that is incorrect. You state an incorrect proposition because its you who claims an expertise that you clearly don’t have. You don’t even state the proposition particularly well and not in a way that even belies a law school education no less; you refuse to cite to authority and engage in double speak.

“So they are really civilians under the law."
“I am not calling al Qaeda civilians. You need to learn to listen.”

That's not a lawyer misunderstanding how international law works, that's the ramblings of a lawyer with no fucking clue what he's talking about. It lacks coherence, but this doesn’t:

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

That’s the actual fucking law, so get it through your head already. Maybe you think it SHOULDN’T be the law, that doesn’t change matters, we’re not debating the should or shouldn’t here; we’re debating the actual fact of the matter.

And aside from your snide false sense of superiority that only you could possess an expertise on the topic and that I should ‘stick to my practice’ Its is my 'primary' practice (law isn't my primary mode of income)

https://lh5.googleusercontent.com/-tkppixdKc7c/UmGq93KcFKI/AAAAAAAAGVI/kbVaKr1hbDE/w958-h719-no/020.JPG

And I had to sneak that picture too I might add because photography isn't allowed in the Delegates Dining Hall at the UN. I'm there, at the UN, three times a month, its ok, overpriced, but there's little choice but to exit and re-enter security and that's a hassle. I have an LLM in International Studies from NYU, but whatever....and then what followed was the natural consequence of having done that at night. I didn't even do it because I was particularly interested in it at the time, I was working in Midtown and went at night basically for lack of anything better to do, I wasn't interested in tax law anymore, so that wasn't happening.

[Peter1469]

For fucks sack, you are dense.

We agree on what should be international law. You just jump the gun and assume you are correct.

You will be correct over time. Customary international law and all that. :wink:

You are behind the curve. The entire army JAG community has been pushing for this.


No, it was up to you to represent your position and you did so. It was not my representation of your position that was incorrect, its your position itself that is incorrect. You state an incorrect proposition because its you who claims an expertise that you clearly don’t have. You don’t even state the proposition particularly well and not in a way that even belies a law school education no less; you refuse to cite to authority and engage in double speak.

“So they are really civilians under the law."
“I am not calling al Qaeda civilians. You need to learn to listen.”

That's not a lawyer misunderstanding how international law works, that's the ramblings of a lawyer with no fucking clue what he's talking about. It lacks coherence, but this doesn’t:

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

That’s the actual fucking law, so get it through your head already. Maybe you think it SHOULDN’T be the law, that doesn’t change matters, we’re not debating the should or shouldn’t here; we’re debating the actual fact of the matter.

And aside from your snide false sense of superiority that only you could possess an expertise on the topic and that I should ‘stick to my practice’ Its is my 'primary' practice (law isn't my primary mode of income)

https://lh5.googleusercontent.com/-tkppixdKc7c/UmGq93KcFKI/AAAAAAAAGVI/kbVaKr1hbDE/w958-h719-no/020.JPG

And I had to sneak that picture too I might add because photography isn't allowed in the Delegates Dining Hall at the UN. I'm there, at the UN, three times a month, its ok, overpriced, but there's little choice but to exit and re-enter security and that's a hassle. I have an LLM in International Studies from NYU, but whatever....

[Newpublius]

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)."

That's TODAY.

And international law is what it is TODAY.

I'm 100% correct.

I don't assume I'm correct, I know I'm correct on this point.

[Archer0915]

This is the relevant portion of the statute but one thing that you need to understand is that statutes don't modify the constitution. If Congress passed a law that said the first amendment is void, it wouldn't alter the constitution one iota. Congress can pass a statute saying, "Don't release Tom" and Obama can say, "Fuck you, I don't care what statute you write because at the end of the day I possess CONSTITUTIONAL AUTHORITY to let Tom go"

He can let anybody go, at any time, anywhere, for any reason, even a bad reason. Its a power SPECIFICALLY granted to the President and there's nothing Congress can do about it.

Wrong. Congress is a check to presidential power. Why have a congress when we have a God King must be your view.

[Mainecoons]

Archer, I think you are missing New's point. He contends the POTUS has the right under the Constitution to take the action he did. So, in actuality, the law which requires him to consult Congress does not have Constitutional weight and is therefor over-ruled by the Constitutional authority.

You are arguing from a general Constitutional basis, namely the "checks and balances" design of the law. That does not over-rule a specific power granted the Executive by the Constitution.

Your argument is valid but it does not address his.

[Matty]

Archer, I think you are missing New's point. He contends the POTUS has the right under the Constitution to take the action he did. So, in actuality, the law which requires him to consult Congress does not have Constitutional weight and is therefor over-ruled by the Constitutional authority.

You are arguing from a general Constitutional basis, namely the "checks and balances" design of the law. That does not over-rule a specific power granted the Executive by the Constitution.

Your argument is valid but it does not address his.


So why did Obama "the constitutional lawyer" sign an unconstitutional bill into law? Doyathink?

[Mainecoons]

Because he pays no attention to that stuff.

Unconstitutional laws get passed and signed regularly. It is only when challenged they are overturned.

From all appearances, Obama as a Constitutional scholar is a joke. He's a poorly educated community organizer that was allowed to skate through the system on the basis of his color, his glib tongue, and the fact that his shadow backers had real clout.

Obama is a manufactured front man for the people really running things and unleashing all the economic and social damage and division that is coming from this administration.

[Archer0915]

Archer, I think you are missing New's point. He contends the POTUS has the right under the Constitution to take the action he did. So, in actuality, the law which requires him to consult Congress does not have Constitutional weight and is therefor over-ruled by the Constitutional authority.

You are arguing from a general Constitutional basis, namely the "checks and balances" design of the law. That does not over-rule a specific power granted the Executive by the Constitution.

Your argument is valid but it does not address his.

This does not fall under his discretion. It was not a wartime or military decision. There is no justification for this.

[Mr. Freeze]

When a nation's leader can arbitrarily decide who or what someone is that is picked up on the battlefield you cannot fall back on caselaw or legislation because there is no hard, fixed line in the sand. Arbitrary powers that went for years unchecked and unequestioned by Congress showed clearly the sliding scale of law and justice. From 2003 to 2009, the presidents did what they wanted. Even after 2006 the president still mismanged illegally (according to the high court) the detainees at Gitmo.

So say NewPublius is correct, we should have had no one left in Gitmo after Obama signed the legislation in 2009. Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation.

This is no kind of law and a rather dangerous precedence.

Our "constitutional scholar" President signed legislation over and over that he refuses to follow and then we want to talk about caselaw? He pisses on caselaw and so do I.

When you have power of that type then law is irrelevant.

[Peter1469]

But Newbie isn't correct.


When a nation's leader can arbitrarily decide who or what someone is that is picked up on the battlefield you cannot fall back on caselaw or legislation because there is no hard, fixed line in the sand. Arbitrary powers that went for years unchecked and unequestioned by Congress showed clearly the sliding scale of law and justice. From 2003 to 2009, the presidents did what they wanted. Even after 2006 the president still mismanged illegally (according to the high court) the detainees at Gitmo.

So say NewPublius is correct, we should have had no one left in Gitmo after Obama signed the legislation in 2009. Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation.

This is no kind of law and a rather dangerous precedence.

Our "constitutional scholar" President signed legislation over and over that he refuses to follow and then we want to talk about caselaw? He pisses on caselaw and so do I.

When you have power of that type then law is irrelevant.

[Newpublius]

This does not fall under his discretion. It was not a wartime or military decision. There is no justification for this.

It absolutely does because he has absolute, unchecked discretion. Wartime, peacetime, civil offender. He can release ANYBODY in his custody. ANYBODY, at anytime. There's nothing Congress can pass, short of an AMENDMENT, that can change that.

[Newpublius]

But Newbie isn't correct.

But I am because in this regard I am not reporting what I think should be happening. I am reporting what actually is happening.

According to the poster Mr. Freeze, he ponders: "we should have had no one left in Gitmo after Obama signed the legislation in 2009 {by inference the MCA of 2009}. Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation."

So let's parse that.

"we should have had no one left in Gitmo after Obama signed the legislation in 2009 {by inference the MCA of 2009}"

Indeed, the Executive Branch can attempt to try and convict any of the Guantanamo Bay prisoners and then subject them to the lawfully imposed punishment of the tribunal. And ultimately the issue of the quantum of Due Process necessary under GCIII will wend its way through the courts to see if the MCA of 2009.

But until then, those individuals are still subject to detention:

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)."

The AUMF is still in effect, the President needn't convict anybody there of anything. See Uthman v Obama where the court ruled that Uthman was 'more likely than not' a member of Al-Qaida (not beyond a reasonable doubt), rejecting his habeas petition and leaving him in custody for the 'duration of the conflict'

"Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation."

The murky issue was the Due Process necessary to CONVICT the detainees, not the power to detain them 'for the duration' -- people discuss the former, there's been no controversy regarding the latter.

[Newpublius]

Wrong. Congress is a check to presidential power. Why have a congress when we have a God King must be your view.

Congress IS a check, specifically contemplated as part of separation of powers. No question and if the President signed an order that said that Congress had no right to legislate within its Article I, Section 8 powers notwithstanding an override of a veto, obviously the President wouldn't have that power. However, there are two relevant powers which are specifically granted to the President which make the statue moot. One are his powers as C-in-C and we can debate the extent to which Congress can impact that, that's a fair debate, BUT what we can't debate is his unilateral authority to issue reprieves and pardons, simpy put he has an unqualified and unchecked power to do that and there's nothing Congress can do about that.

[Newpublius]

When a nation's leader can arbitrarily decide who or what someone is that is picked up on the battlefield you cannot fall back on caselaw or legislation because there is no hard, fixed line in the sand.

Ultimately that is what war is. The fact that the Executive Branch could abuse its power to wage war was well understood by the Founders which is why that decision was left to Congress. However, Congress did promulgate the AUMF and whether you are for or against it. Personally, I think it should be revoked at this juncture, the AUMF is still actually in effect. At the end of the day, ALL applications of military force are extrajudicial, the C-in-C and the military beneath him are obliged to apply that military force in accordance with the concepts of distinction and proportionality. If they begin to wield that power in an arbitrary and capricious manner, it will constitute a war crime, like the killings at Haditha, but at the end of the day war is war and military force is applied a certain way, by necessity it is applied unilaterally. There's no other way to do it.

[Newpublius]

So why did Obama "the constitutional lawyer" sign an unconstitutional bill into law? Doyathink?

Because it was an appropriations bill. Its doesn't render the entire bill unconstitutional. There are portions of the Social Security Act that, even today, are probably unconstitutional and just haven't hit the courts yet.

[Archer0915]

It absolutely does because he has absolute, unchecked discretion. Wartime, peacetime, civil offender. He can release ANYBODY in his custody. ANYBODY, at anytime. There's nothing Congress can pass, short of an AMENDMENT, that can change that.
Uhhh no he can not. You sir are clueless. He is not GOD as you seem to think he is.

[Bob]

Congress IS a check, specifically contemplated as part of separation of powers. No question and if the President signed an order that said that Congress had no right to legislate within its Article I, Section 8 powers notwithstanding an override of a veto, obviously the President wouldn't have that power. However, there are two relevant powers which are specifically granted to the President which make the statue moot. One are his powers as C-in-C and we can debate the extent to which Congress can impact that, that's a fair debate, BUT what we can't debate is his unilateral authority to issue reprieves and pardons, simpy put he has an unqualified and unchecked power to do that and there's nothing Congress can do about that.

We have to see how the system is designed to work.

Congress is to craft all laws.
The president's duty is to use the executive to carry out all laws.

But for the veto, this would not even be questioned. A president can't simply, after he agrees to a law, veto it by his actions.

Democrats were furious at Reagan after he agreed to the Boland amendment, by what they figured was a back door way to dismiss the law of the congress. Reagan however evaded dismissing the law by the acts of nations helping the Contras so Reagan did not feel obliged to.

As to the missile problem, those missles to Iran began flowing when Israel sent them from Israels stock. (Reagan, the man and his presidency by Strober) then requested from our DOD replacement TOW missiles.

I invite all of you to learn what a TOW is. (From Wikipedia)

A wire-guided missile is a missile (http://en.wikipedia.org/wiki/Missile) that is guided by signals sent to it via thin wires connected between the missile and its guidance mechanism, which is located somewhere near the launch site. As the missile flies, the wires are reeled out behind it. This guidance system is most commonly used in anti-tank missiles, where its ability to be used in areas of limited line-of-sight make it useful, while the range limit imposed by the length of the wire is not a serious concern.
The longest range wire-guided missiles in current use are limited to about 4 kilometres (2.5 mi). The Tube-launched, Optically tracked, Wire-guided Missile System (http://en.wikipedia.org/wiki/Tube-launched,_Optically_tracked,_Wire-guided_Missile_System) (TOW) has a range of 3,750 metres (2.33 mi).[1] (http://en.wikipedia.org/wiki/Wire-guided_missile#cite_note-1)

I want you to bear in mind the FACT that troops fire them. Can you see 2.5 miles? Think about how far on any surface you can actually see.

They are designed to kill tanks. The way they work is the same as for Bazookas.

They use what is called a "shaped Charge". I had to learn this in the Army.

A shaped charge focuses the blast which is enormous heat, into a small area. We were told the diameter of the heat was about as large as a quarter. A missile hits the tank. A super hot melting of that quarter sized slug of steel happens. The power is such that it penetrates the thickness of the tank armor. This then puts a lot of super hot steel inside the tank where the Ammo is. Imagine you are inside the tank and suddenly you are hit by super hot steel.

A lot of people think the term missile means those large rockets such as the ICBM. These are a man to tank killing device.

http://en.wikipedia.org/wiki/Wire-guided_missile

[Newpublius]

Uhhh no he can not. You sir are clueless. He is not GOD as you seem to think he is.

You're aware of the 'pardon power' aren't you? You associate it with criminals of course and at the end of the term some 'hard case' or another will result in a pardon and that person will be released. Presidents and their gubernatorial counterparts have typically set up methods of reviewing applications. A common one at the state level is a commutation, the one you will most likely have heard of will be a commutation of sentence from death to life imprisonment. However, whole sentences can be commuted and in many instances are, for various reasons, that's up to the governor of course, but this power at the Federal is specifically not subject to legislative assent. See Federalist 74 where Hamilton specifically contemplates that even in cases of treason, requiring legislative assent might have some merit to it, but ultimately "It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment"

So ultimately you might disagree with Hamilton, but the President does possess unilateral authority to issue reprieves and pardons and the constitutional power is unqualified, there's no prescribed mode or procedure, he can utilize that power any way he wants.


He is not GOD as you seem to think he is.

Yeah, uh, I'm a conservative so I think he's a buffoon bankrupting the nation. But he does possess this particular power. Do I think he should've used that power in this manner? Of course not, he's a fucking idiot, but that doesn't impact whether or not the power was vested.

[Mr. Freeze]

Ultimately that is what war is. The fact that the Executive Branch could abuse its power to wage war was well understood by the Founders which is why that decision was left to Congress. However, Congress did promulgate the AUMF and whether you are for or against it. Personally, I think it should be revoked at this juncture, the AUMF is still actually in effect. At the end of the day, ALL applications of military force are extrajudicial, the C-in-C and the military beneath him are obliged to apply that military force in accordance with the concepts of distinction and proportionality. If they begin to wield that power in an arbitrary and capricious manner, it will constitute a war crime, like the killings at Haditha, but at the end of the day war is war and military force is applied a certain way, by necessity it is applied unilaterally. There's no other way to do it.


It is not war post Geneva Conventions. That's war Roman or Philistine style where leaders made all the rules. If you don't believe in laws why argue them all over this thread? If you can pick and choose arbitraily who is what then the Geneva Conventions are toilet paper. You can just declare that the rules don't apply to this new "breed" of fighter, which is what Bush did.

[Peter1469]

I agree with you in the specific case of the current prisoner swap. I don't agree with you in general, say for a transfer to the US for a civilian trial.

Also, I get the feeling that you believe that the AUMF is the same thing as a congressional declaration of war. I do, at least so far as the AUMF is constitutional. SCOTUS doesn't agree.


But I am because in this regard I am not reporting what I think should be happening. I am reporting what actually is happening.

According to the poster Mr. Freeze, he ponders: "we should have had no one left in Gitmo after Obama signed the legislation in 2009 {by inference the MCA of 2009}. Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation."

So let's parse that.

"we should have had no one left in Gitmo after Obama signed the legislation in 2009 {by inference the MCA of 2009}"

Indeed, the Executive Branch can attempt to try and convict any of the Guantanamo Bay prisoners and then subject them to the lawfully imposed punishment of the tribunal. And ultimately the issue of the quantum of Due Process necessary under GCIII will wend its way through the courts to see if the MCA of 2009.

But until then, those individuals are still subject to detention:

"The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)."

The AUMF is still in effect, the President needn't convict anybody there of anything. See Uthman v Obama where the court ruled that Uthman was 'more likely than not' a member of Al-Qaida (not beyond a reasonable doubt), rejecting his habeas petition and leaving him in custody for the 'duration of the conflict'

"Instead we were able to retain the 150 that should have been returned according to the SCOTUS ruling and his own legislation."

The murky issue was the Due Process necessary to CONVICT the detainees, not the power to detain them 'for the duration' -- people discuss the former, there's been no controversy regarding the latter.

[Matty]

Because it was an appropriations bill. Its doesn't render the entire bill unconstitutional. There are portions of the Social Security Act that, even today, are probably unconstitutional and just haven't hit the courts yet.
Dodge. He knew or should have known what he signed into "law" once a bill is signed it is "law" the law says he must give congress 30 days notice before he releases GITMO detainees.

[Newpublius]

It is not war post Geneva Conventions. That's war Roman or Philistine style where leaders made all the rules. If you don't believe in laws why argue them all over this thread? If you can pick and choose arbitraily who is what then the Geneva Conventions are toilet paper. You can just declare that the rules don't apply to this new "breed" of fighter, which is what Bush did.

You know, people speak of the Geneva Conventions in a layman's sense, as if they aren't incorporated into US law. In point of fact, they are. The Geneva Convention with respect to prisoners basically assures a certain level of treatment which the VIII Amendment itself would already prohibit. Bottom line is that the rules allow the United States to hold prisoners appurtenant to a military conflict for the duration of the conflict. There's nothing new there. There's no need to convict them. Now, if one wants to convict them of crimes, war crimes, or of wrongdoing while in captivity, fine, then you need to try and convict them.

The AUMF is still in effect. If it were revoked, we would have a duty to repatriate those prisoners or put them on trial fairly quickly.

[Newpublius]

Dodge. He knew or should have known what he signed into "law" once a bill is signed it is "law" the law says he must give congress 30 days notice before he releases GITMO detainees.

Statutes don't change the constitution. Ever.

[Newpublius]

I agree with you in the specific case of the current prisoner swap. I don't agree with you in general, say for a transfer to the US for a civilian trial.

I concur he does not possess the power to let them into the United States, as free men, or in chains.


Also, I get the feeling that you believe that the AUMF is the same thing as a congressional declaration of war. I do, at least so far as the AUMF is constitutional. SCOTUS doesn't agree.

AUMF and DoW are the same thing, in the context of this thread, ie. the application of force paradigm. Both authorize the use of military force, both will authorize the Executive Branch to take prisoners and that is, in essence, what we're discussing in this thread. THE DIFFERENCE applies to the President's powers over the national economy, ie. his DOMESTIC power. Its a difference that is not a difference FOR PURPOSES of this thread.

With respect to detention, Hamdi's lawyers made that argument, ie. this was an AUMF and it doesn't specify that the military could take prisoners and the Supreme Court said: "The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."

In this respect, obviously no different from a DoW

[Bob]

I wonder if the Lefties even bothered to look at GW Bush signing statements.

All they said is that so long as they met the test of the constitution, he would obey them all.

This really pissed off Democrats who I suspect wanted him to obey the non constitutional ones as well.

Here is where you can check out both Obama and Bush's signing statements.

http://www.coherentbabble.com/listGWBall.htm

Hell one by Bush even was to get the Vets health care treatment much faster. That dirty SOB. :rollseyes:

[Newpublius]

I wonder if the Lefties even bothered to look at GW Bush signing statements.

All they said is that so long as they met the test of the constitution, he would obey them all.

This really pissed off Democrats who I suspect wanted him to obey the non constitutional ones as well.

Here is where you can check out both Obama and Bush's signing statements.

Hell one by Bush even was to get the Vets health care treatment much faster. That dirty SOB. :rollseyes:

Signing statements in theory don't mean anything. Much like the line item veto was overrruled, predictably a line item ADD ON would also not be allowed either. In theory, it has absolutely no legal impact, but since the sitting President is making the statement, if that signing statement is contrary to congressional intent, it would seem to indicate a predilection to flaunt Congress' will....

[Bob]

Dodge. He knew or should have known what he signed into "law" once a bill is signed it is "law" the law says he must give congress 30 days notice before he releases GITMO detainees.

7840

[Bob]

Signing statements in theory don't mean anything. Much like the line item veto was overrruled, predictably a line item ADD ON would also not be allowed either. In theory, it has absolutely no legal impact, but since the sitting President is making the statement, if that signing statement is contrary to congressional intent, it would seem to indicate a predilection to flaunt Congress' will....

The sole purpose of signing statements is to properly direct the executive branch workers.

[Archer0915]

You're aware of the 'pardon power' aren't you? You associate it with criminals of course and at the end of the term some 'hard case' or another will result in a pardon and that person will be released. Presidents and their gubernatorial counterparts have typically set up methods of reviewing applications. A common one at the state level is a commutation, the one you will most likely have heard of will be a commutation of sentence from death to life imprisonment. However, whole sentences can be commuted and in many instances are, for various reasons, that's up to the governor of course, but this power at the Federal is specifically not subject to legislative assent. See Federalist 74 where Hamilton specifically contemplates that even in cases of treason, requiring legislative assent might have some merit to it, but ultimately "It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment"

So ultimately you might disagree with Hamilton, but the President does possess unilateral authority to issue reprieves and pardons and the constitutional power is unqualified, there's no prescribed mode or procedure, he can utilize that power any way he wants.



Yeah, uh, I'm a conservative so I think he's a buffoon bankrupting the nation. But he does possess this particular power. Do I think he should've used that power in this manner? Of course not, he's a fucking idiot, but that doesn't impact whether or not the power was vested.

This was not a pardon it was the release of five prisoners without following the established guidelines. If the motherfucker were above the law there would be no such thing as impeachment. He was not in his range of granted power and he overrode the will of the people by ignoring the laws set forth by their elected representatives.

[momsapplepie]

It seems some do not know the difference. Show the "pardon" for these terrorists that obama signed. Or did he just release them knowingly breaking the law he signed into effect? SHOW the documents!

[Newpublius]

This was not a pardon it was the release of five prisoners

All pardons result in release, he has the power to grant 'reprieves and pardons' -- the act of release is sufficient to wield the power. The power in the Constitution is unqualified, he can exercise it in any manner he wants. The power to grant 'reprieves and pardons' is the power to release, one is a subset of the other.


Show the "pardon" for these terrorists that obama signed.

The mode isn't established. He can sign a pardon if he wants, there's nothing in the Constitution requiring a 'written' 'reprieve or pardon'

[nic34]

What were these 5 charged with or convicted of?
So far no one has had an answer.

[Newpublius]

What were these 5 charged with or convicted of?
So far no one has had an answer.

Nothing, they were obviously facing the prospect of prosecution and in the interim they were being held in accordance with the AUMF "for the duration."

[Newpublius]

The sole purpose of signing statements is to properly direct the executive branch workers.

I agree, but if the signing statement farcically interprets the law it can have a perverse effect.

[Archer0915]

All pardons result in release, he has the power to grant 'reprieves and pardons' -- the act of release is sufficient to wield the power. The power in the Constitution is unqualified, he can exercise it in any manner he wants. The power to grant 'reprieves and pardons' is the power to release, one is a subset of the other.



The mode isn't established. He can sign a pardon if he wants, there's nothing in the Constitution requiring a 'written' 'reprieve or pardon'

Oh there was a presidential pardon? Where is the paperwork?

[Newpublius]

Oh there was a presidential pardon? Where is the paperwork?

And where in the Constitution does it even require a writing. That's the point, he can exercise the power in any MANNER he wants. The Constitution simply vests the power to grant 'reprieves and pardons' and of course you're accustomed to seeing a pardon and a ceremony with documents involved. The Executive Branch has issued oral paroles on 'oaths' based solely on recognizance. In the Civil War in many instances, not all, a parole was just a slip of paper about the equivalent of a hall pass. They had a system where they 'exchanged' paroled prisoners, but nevertheless 19th century and before, unilateral release happened....

[momsapplepie]

In this case obama negotiated with terrorists and released gitmo detainees with out congressional approval. He ignored the law he signed into effect.

[Archer0915]

And where in the Constitution does it even require a writing. That's the point, he can exercise the power in any MANNER he wants. The Constitution simply vests the power to grant 'reprieves and pardons' and of course you're accustomed to seeing a pardon and a ceremony with documents involved. The Executive Branch has issued oral paroles on 'oaths' based solely on recognizance. In the Civil War in many instances, not all, a parole was just a slip of paper about the equivalent of a hall pass. They had a system where they 'exchanged' paroled prisoners, but nevertheless 19th century and before, unilateral release happened....

Where in the constitution does it say the President has the express to over rind congresses authority and move counter to the laws of the land?

[Newpublius]

Where in the constitution does it say the President has the express to over rind congresses authority and move counter to the laws of the land?

Getting a little circular now:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"

And in Federalist 74, when Hamilton is describing this power he specifically notes how they decided NOT to require legislative 'assent' EVEN IN CASES of treason.

The President isn't overriding congressional authority. Congress' authority simply doesn't impact his power under Article 2, Section 2, Clause 1.

Yes, he CAN release people, its a SPECIFIC power granted to the President. I'm sorry that bothers you.

[Archer0915]

Getting a little circular now:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"

And in Federalist 74, when Hamilton is describing this power he specifically notes how they decided NOT to require legislative 'assent' EVEN IN CASES of treason.

The President isn't overriding congressional authority. Congress' authority simply doesn't impact his power under Article 2, Section 2, Clause 1.

Yes, he CAN release people, its a SPECIFIC power granted to the President. I'm sorry that bothers you.

Read that but we are talking about something else here. He did not have this authority because they were not pardoned and he very well could have done it through proper channels.

I took constitutional law like most people have too and I just do not see it. Why? Did these people commit a crime against the United States? "he shall have Power to grant Reprieves and Pardons for Offenses against the United States"

THESE PEOPLE WERE NEVER CHARGED WITH A CRIME. They were just taken out of circulation because they were a threat.

He also gave no notification which was law. It was specific and had things laid out.

[Archer0915]

@Newpublius (http://thepoliticalforums.com/member.php?u=685) you do understand the purpose of the pardon, do you not? It is a political tool and we do not make deal with terrorists. He was not dealing with a nation here he was making nice with psychotic killers.

The language is specific. And the history...

[Peter1469]

What were these 5 charged with or convicted of?
So far no one has had an answer.

Your question isn't relevant.

[Matty]

Statutes don't change the constitution. Ever.


Wrong. That bill was passed through the legislature and signed into law by Obama. It is the law until challenged in a court of law and ruled unconstitutional.

[Newpublius]

Wrong. That bill was passed through the legislature and signed into law by Obama. It is the law until challenged in a court of law and ruled unconstitutional.

And his constitutional authority cannot be changed by ANYTHING EXCEPT AN AMENDMENT.

[Matty]

And his constitutional authority cannot be changed by ANYTHING EXCEPT AN AMENDMENT.
his constitutional authority is no greater than the Legislative or the Judical. it's three equal branches that balance each other. ass much ass you wish it obama is not the king.

[Newpublius]

THESE PEOPLE WERE NEVER CHARGED WITH A CRIME.

Neither was Nixon. The power contemplates a full pardon, partial pardon, commutation, partial commutation, remission or release, to an individual, a class of people.....charged with a crime or otherwise.

[Newpublius]

his constitutional authority is no greater than the Legislative or the Judical. it's three equal branches that balance each other. ass much ass you wish it obama is not the king.

Yes, it is, that's what 'separation of powers' actually is. Those powers that reside in a particular branch reside in that branch to the exclusion of other branches. The power I am referring to actually DOES reside in the Executive Branch.

[Archer0915]

Neither was Nixon. The power contemplates a full pardon, partial pardon, commutation, partial commutation, remission or release, to an individual, a class of people.....charged with a crime or otherwise.

Sorry but you are just way off and your god king has overstepped.

[Newpublius]

Sorry but you are just way off and your god king has overstepped.

I'm not though, your objections have been easily refuted. Your understanding of Executive Branch powers is biased based on your political objection to the use of that power by Obama.

[Mr. Mensch]

I'm not though, your objections have been easily refuted. Your understanding of Executive Branch powers is biased based on your political objection to the use of that power by Obama.

Obama's use of executive powers are akin to giving a child a machine gun. The results are similar.

[Newpublius]

Obama's use of executive powers are akin to giving a child a machine gun. The results are similar.

Then pass an Amendment that divests him of that power, but until then that power is vested. We're not debating the merits of the use of that power; we're debating its existence and it does exist.

[Mr. Mensch]

Then pass an Amendment that divests him of that power, but until then that power is vested. We're not debating the merits of the use of that power; we're debating its existence and it does exist.

I would rather we have a president that can make good decisions rather than the half baked ideas that Obama has come up with. He is working way above his pay grade.

[Archer0915]

I'm not though, your objections have been easily refuted. Your understanding of Executive Branch powers is biased based on your political objection to the use of that power by Obama.

There were specific guidelines. The POTUS is not above the law. There was a set process to securing the release of the prisoners and he did not follow the process. The president is there to enforce the laws of the land, not step on them. He can not override congress as he has many times but people fear the nasty race card so they sit silent while he changes all kinds of shit... Namely screwing with the ACA.

[Newpublius]

There were specific guidelines. The POTUS is not above the law.

And there are no constitutional qualifications to the use of the power to issue reprieves and pardons; and Congress possesses no authority to make any such qualifications. Congress' laws cannot interfere with that, in point of fact it is CONGRESS that isn't above the Constitution. That is what separation of powers is and why I referred you to the Federalist Papers where 'legislative assent' was specifically contemplated but not included in the power. He doesn't need their 'assent' in any way shape or form with respect to the use of this power; as a matter of fact what people are seemingly failing to comprehend about the power is that it is, in and of itself, a disapprobation of the laws themselves - ie the power is utilized notwithstanding the law, for the Executive Branch to unilaterally determine that the laws are effecting an undesirable result, and to inject his own sense of right and wrong into that situation by acting beyond the ordinary scope of the law. That is the essence of the power in question and why suggesting that the President is 'not above the law' is a ridiculous proposition in this particular context when the power is vested and rests on the foundation that it operates in a manner contrary to the ordinary machinations of law.

[Newpublius]

I would rather we have a president that can make good decisions.

So would I.

[Archer0915]

And there are no constitutional qualifications to the use of the power to issue reprieves and pardons; and Congress possesses no authority to make any such qualifications. Congress' laws cannot interfere with that, in point of fact it is CONGRESS that isn't above the Constitution. That is what separation of powers is and why I referred you to the Federalist Papers where 'legislative assent' was specifically contemplated but not included in the power. He doesn't need their 'assent' in any way shape or form with respect to the use of this power; as a matter of fact what people are seemingly failing to comprehend about the power is that it is, in and of itself, a disapprobation of the laws themselves - ie the power is utilized notwithstanding the law, for the Executive Branch to unilaterally determine that the laws are effecting an undesirable result, and to inject his own sense of right and wrong into that situation by acting beyond the ordinary scope of the law. That is the essence of the power in question and why suggesting that the President is 'not above the law' is a ridiculous proposition in this particular context when the power is vested and rests on the foundation that it operates in a manner contrary to the ordinary machinations of law.

I see we are at an impasse. I say the president can "not" over rule congress and you say congress can "not" strip his power of pardon...

I say this was not a pardon and even if it were he could, and should, have gone through proper channels. He ignored the will of the people in respect to their elected representatives. But still, why does the constitution matter this one time? He walks all ove it all the time.