"Unlawful Combatants" Legal Protections Query

[Molyneux]

I'm currently arguing on someone's LJ (RHJunior, if any of you read his comics) about whether so-called "unlawful combatants" have any legal protections, especially against torture - either under the Geneva Conventions, or United States law, or something else I'm not thinking of.

Does anyone have any good info, or an idea of somewhere I could find some reliable sources of information on the subject? I'd really appreciate it.

[Baal]

Hard to say. Within a known war zone illegal combatants could be summarily executed as potentials spies with little to no paperwork. Or at least they were in the past.

The other part is even more complicated. Define "torture". To me it is physically abusing someone. To someone else it could be any sort of physical or mental abuse to attempt to coerse information.

[Stuart]

I'm currently arguing on someone's LJ (RHJunior, if any of you read his comics) about whether so-called "unlawful combatants" have any legal protections, especially against torture - either under the Geneva Conventions, or United States law, or something else I'm not thinking of. Does anyone have any good info, or an idea of somewhere I could find some reliable sources of information on the subject? I'd really appreciate it.

You can find the original Geneva Conventions HERE

Unlawful combatants, almost by definition, have no legal protection once it is certain they are unlawful combatants . The big question comes in proving they are unlawful. In theory if there is any doubt in the mind of the troops in question, they have to hold a tribunal to determine the facts of the matter. In reality, in most cases a civilian caught shooting at combatants will be shot out of hand - if he (or she) is lucky.

[Molyneux]

Hard to say. Within a known war zone illegal combatants could be summarily executed as potentials spies with little to no paperwork. Or at least they were in the past.

The other part is even more complicated. Define "torture". To me it is physically abusing someone. To someone else it could be any sort of physical or mental abuse to attempt to coerse information.

The thread in the LJ discussion specifically referenced waterboarding first, then generalized from there. I've brought up Hamdan v. Rumsfeld so far.

[Baal]

Hard to say. Within a known war zone illegal combatants could be summarily executed as potentials spies with little to no paperwork. Or at least they were in the past.

The other part is even more complicated. Define "torture". To me it is physically abusing someone. To someone else it could be any sort of physical or mental abuse to attempt to coerse information.

The thread in the LJ discussion specifically referenced waterboarding first, then generalized from there. I've brought up Hamdan v. Rumsfeld so far.

As far as I understand it waterboarding done properly will not kill you or don permanent damage to you. But then according to Ted Kennedy world renowned expert on death by drowning it is torture.

[The Spartan]

As far as I understand it waterboarding done properly will not kill you or don permanent damage to you. But then according to Ted Kennedy world renowned expert on death by drowning it is torture.

Or, you know, the case law behind it like when Japanese soldiers and officers were convicted of war crimes and received 15 years hard labor for using it. Or when an American Sheriff and his deputies were sentenced to 10 years in prison for using it on suspects to force confessions.

[Baal]

As far as I understand it waterboarding done properly will not kill you or don permanent damage to you. But then according to Ted Kennedy world renowned expert on death by drowning it is torture.

Or, you know, the case law behind it like when Japanese soldiers and officers were convicted of war crimes and received 15 years hard labor for using it. Or when an American Sheriff and his deputies were sentenced to 10 years in prison for using it on suspects to force confessions.

I am in no way supporting waterboarding. As far as I am concerned screw the intel, call the area a warzone and if are picked up out of uniform with a weapon then you are shot. LOL. Okay maybe not.

To answer your points though. The Japanese were doing this to soldiers specifically protected by the Geneva Convention. Second the Sheriff was I assume doing this to American citizens right? Being a sheriff means they were looking into a crimincal case. Since the legal system is built upon innocent til proven guilty no form of phyically or mentally coersive interrogation could ever be legal in the United States.

So your two examples do not match the CIA using the technique on captured terrorists. To state again though I am not in support of its use either. If you are a terrorist and you are caught in a warzone with a weapon and out of uniform then you should just be shot as a spy and we should move on.

[Alyrium Denryle]

The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

These are legal combatants

The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

These are also legal combatants. The question is, do Insurgents, at least Iraqi ones, count? Hell, did agents of the Taliban captured in afghanistan count? I would say yes. At least in the latter case...

On the other hand, the geneva conventions are not the only laws that apply here. Our own national laws, such as our constitution, which is not specific to nationality in its legal protections, also applies.

So what does this mean? Basically it means that we dont get to have our cake and also eat it. Under our constitution we have two choices. Saying "these people are POWs and thus subject to the geneva conventions and military tribunals if they have committed crimes against humanity etc. No torture" or "these individuals are civilians and if we have jurisdiction at all which, if we are consistent and do not have jurisdiction over our own contractors we certainly do not, are subject to civilian courts. No torture"

Had we shot them in the field as is our right under the convention, we would not be having this debate. But we didnt. We claim jurisdiction over them to hold them prisoner and try them. Those are the only two legal options that I can see

[The Spartan]

As far as I understand it waterboarding done properly will not kill you or don permanent damage to you. But then according to Ted Kennedy world renowned expert on death by drowning it is torture.

Or, you know, the case law behind it like when Japanese soldiers and officers were convicted of war crimes and received 15 years hard labor for using it. Or when an American Sheriff and his deputies were sentenced to 10 years in prison for using it on suspects to force confessions.

I am in no way supporting waterboarding. As far as I am concerned screw the intel, call the area a warzone and if are picked up out of uniform with a weapon then you are shot. LOL. Okay maybe not.

To answer your points though. The Japanese were doing this to soldiers specifically protected by the Geneva Convention. Second the Sheriff was I assume doing this to American citizens right? Being a sheriff means they were looking into a crimincal case. Since the legal system is built upon innocent til proven guilty no form of phyically or mentally coersive interrogation could ever be legal in the United States.

So your two examples do not match the CIA using the technique on captured terrorists. To state again though I am not in support of its use either. If you are a terrorist and you are caught in a warzone with a weapon and out of uniform then you should just be shot as a spy and we should move on.

So why bring up Kennedy's stance on waterboarding in the first place? What does torture have to do with the Geneva Convention proscribing execution for illegal combatants?

Even assuming they are illegal combatants, once in US custody they are granted the rights and privilleges spelled out under Federal law, thus, no torture.

[Stuart]

The question is, do Insurgents, at least Iraqi ones, count? Hell, did agents of the Taliban captured in afghanistan count? I would say yes. At least in the latter case...

Iraqi - possibly depending on the group. The death squads and the suicide/car bombers certainly do not fall under the "lawful combatants" even with the militia and spontaneous resistance exemptions since they didn't even come close to obeying the laws and customs of war. On the other hand, some of the insurgent groups who constrained their attacks to those directed against US forces may well qualify. That;s why there's a provision for tribunals. The Taliban most certainly did not qualify; a study of their conduct damns them root and branch

On the other hand, the geneva conventions are not the only laws that apply here. Our own national laws, such as our constitution, which is not specific to nationality in its legal protections, also applies.

It's more complicated than that. When a Treaty is signed and ratified by the US Government, it is written into the body of US Law and becomes part of the supreme law of the land. It therefore actually outranks the Constitution unless the Supreme Court say otherwise - in effect ratifying a treaty ammends the Constitution. So, if it is legal under a treaty to wire somebody up to a field generator and crank away until his toes sizzle and steam come sout of his ears, and the US ratifies that treaty, it becomes a constitutional ammendment. Unless the Supreme Court says otherwise. So, since the US has signed and ratified the Geneva Conventions, they take precedence.

Also, the US Constitution is nationally-specific. It is the governing document of the United States, it applies to areas governed by the United States not to anywhere else. You are right, it is not specific to nationality but that only applies within the confines of the United States. Think about where the alternative leads - if the "everybody, everywhere" argument is applied, it means that the United States has jurisidiction over everybody everywhere. That's called extra-territoriality and is a big no-no.

Under our constitution we have two choices. Saying "these people are POWs and thus subject to the geneva conventions and military tribunals if they have committed crimes against humanity etc. No torture"

"these individuals are civilians and if we have jurisdiction at all which, if we are consistent and do not have jurisdiction over our own contractors we certainly do not, are subject to civilian courts. No torture"

That's where you're wrong. Illegal Combatants are neither combatants nor civilians. They are in a dark, murky area between. Most times, as previously stated, they get shot out of hand. They are only subject to the tribunals specified in the Geneva Convention which is to determine whether they are in fact illegal combatants. Provided we do that tribunal by the book (ie extend the same legal protection as would be extended to our own military personnel undergoing such a tribunal) that's all the protection they get.

Once they're found guilty, they're in that dark, murky place. Put simply there are two sets of privileges, those that apply to combatants and those that apply to civilians. Those two sets are definitive and exclusive; there are no legal privileges or protections outside those two sets. So, illegal combatants, not being civilians and not being combatants have no rights, no protection and no privileges.

Had we shot them in the field as is our right under the convention, we would not be having this debate. But we didnt.

Unfortunately.

We claim jurisdiction over them to hold them prisoner and try them. Those are the only two legal options that I can see

As I've gone through (very quickly) there are other options. We do have jurisdiction since we were the military power that took them. We have the right under Geneva to hold tribunals to determine their status. If those tribunals come back with a verdict "illegal combatant" which would be almost a given in the case of the Taliban we can do what we like.

Ironically our very attempts at decency have caused this whole problem. If we'd been a lot more ruthless, we wouldn;t have this whole difficulty.

[Terralthra]

It's more complicated than that. When a Treaty is signed and ratified by the US Government, it is written into the body of US Law and becomes part of the supreme law of the land. It therefore actually outranks the Constitution unless the Supreme Court say otherwise - in effect ratifying a treaty ammends the Constitution. So, if it is legal under a treaty to wire somebody up to a field generator and crank away until his toes sizzle and steam come sout of his ears, and the US ratifies that treaty, it becomes a constitutional ammendment. Unless the Supreme Court says otherwise. So, since the US has signed and ratified the Geneva Conventions, they take precedence.

This is inaccurate. Ratified treaties do not become superior to the Constitution, they become "law of the land," equivalent to any other law enacted by Congress. If a treaty superceded the Constitution, then I move we ratify a treaty which states that treaties do not supercede the Constitution, and watch our system of laws start spinning in circles like a cat with buttered bread tied to its back.

To my knowledge, a treaty has not been enacted that violates the Constitution, but if it were to do so, the SCOTUS would have the legal right to strike down our engagement in the treaty.

[Stuart]

To my knowledge, a treaty has not been enacted that violates the Constitution, but if it were to do so, the SCOTUS would have the legal right to strike down our engagement in the treaty.

Which is why I repeated (twice) "unless the Supreme Court says otherwise". If we ratify a treaty into the body of law, the only way it can be reversed is if the Supreme Court turn around and say that the signature of the treaty is illegal since it contradicts the constitution. Unless and until they make that judgement, the terms of the treaty remain part of the supreme law of the land and are the working document that gets complied with.

So, if you want to say that the Constitution takes precdence over a specific treaty, you have to get the Supreme Court to agree with you and rule that the treaty is invalid. Until it does that, no case.

As you say, the occasion has never arisen. This is the sort of case where it might though. The problem is that the provisions concerning treaties were written a long time ago when nations might sign one or two treaties in a particularly busy year. Now, they're all over the place.

By the way, just to add fun, the Constitution doesn't prohibit torture - it prohibits cruel and unusual punishments. What if the "cruel and unusual" isn't a punishment but a means of interrogation? Or simply an expedient way of getting rid of a problem?

[Adrian Laguna]

Also, the US Constitution is nationally-specific. It is the governing document of the United States, it applies to areas governed by the United States not to anywhere else. Think about where the alternative leads - if the "everybody, everywhere" argument is applied, it means that the United States has jurisidiction over everybody everywhere. That's called extra-territoriality and is a big no-no.

I don't think he was arguing "everybody everywhere", but rather just mentioning that in places where the US has jurisdiction then US law applies independent of the individual's nationality.

The question is whether the US has jurisdiction in Iraq by virtue of occupying parts of it.

Ironically our very attempts at decency have caused this whole problem. If we'd been a lot more ruthless, we wouldn;t have this whole difficulty.

Attempts at decency that are severely misguided, far as I'm concerned. I'd argue that simply shooting illegal combatants in the field is both more ruthless and more decent than whatever the US is using as its current favourite "innovative interrogation technique". Though the ideal procedure would be to treat all captured combatants as POWs, hold a tribunal to determine their status if it's in question, and summarily execute them if their status is determined to be that of an illegal combatant. This is, again, more decent than torture.

[Stuart]

I don't think he was arguing "everybody everywhere", but rather just mentioning that in places where the US has jurisdiction then US law applies independent of the individual's nationality. The question is whether the US has jurisdiction in Iraq by virtue of occupying parts of it.

That's a pretty quick one to answer, no it doesn't. When U.S. troops are in a foreign country, they are subject to the laws of that country unless a specific agreement to the contrary applies. I've been on-scene where exactly that applied; a U.S. serviceman beat up a Thai bar girl - he was arrested and dealt with under Thai law.

Though the ideal procedure would be to treat all captured combatants as POWs, hold a tribunal to determine their status if it's in question, and summarily execute them if their status is determined to be that of an illegal combatant.

I'd disagree that's an ideal procedure, it puts our own troops at far too much of a disadvantage. The real problem here is that the Geneva Conventions were written to establish a clear divide between combatants and civilians with the aim of reducing casualties to the latter group. However, the policy of the various terrorist groups is precisely to blur that division and thus create as many civilian casualties as possible so your suggested modus operandi is playing right into their hands. I think this brings us to the real problem we face and that is the Geneva Conventions and all that they represent simply do not apply to this kind of situation. They represent warfare between nation states and are an attempt to humanize same. The terrorists are not a nation state and are not bound by the rules. I think the time has come when we really have to rethink (on a multi-national basis) exactly how we handle terrorist groups.

One possibility might be to treat them the same way as pirates. Declare them the common enemy of all mankind and simply state that any nation is authorized to do whatever it takes to put them out of business

This is, again, more decent than torture

There's an underlying presumption here that "torture" is being used as a punishment. It isn't, its being used as a means of gaining information. So the "cruel and unusual" clause doesn't apply. I'd argue the whole thing differently. Decency has nothing to do with this, the whole question is, does it work? The answer usually is no, torturing prisoners doesn't get us what we need to know - people who've been at the sharp end are pretty unanimous on that. That's what makes this whole waterboarding business so peculiar - by all accounts its extremely effective and produces results in just a few seconds. Why? Why should this technique be so different?

[Surlethe]

Declare them the common enemy of all mankind and simply state that any nation is authorized to do whatever it takes to put them out of business

Don't you still then have problems with acting unilaterally in another nation's territory?

That's what makes this whole waterboarding business so peculiar - by all accounts its extremely effective and produces results in just a few seconds. Why? Why should this technique be so different?

It produces results, but are the results accurate? How frequently are they accurate?

[Alyrium Denryle]

Also, the US Constitution is nationally-specific. It is the governing document of the United States, it applies to areas governed by the United States not to anywhere else. You are right, it is not specific to nationality but that only applies within the confines of the United States. Think about where the alternative leads - if the "everybody, everywhere" argument is applied, it means that the United States has jurisidiction over everybody everywhere. That's called extra-territoriality and is a big no-no.

I refer to things like the bill of rights, which specifically uses the word "person" as opposed to citizen, or even The People (which implies citizen or perm resident) when it dilineates the legal protections guaranteed to individuals who fall under our jurisdiction. This prevents us from, for example, using coerced testimony or forcing an individual to incriminate themselves. We can shoot them if they are found to be an illegal combatant, however we have to find out first, and that makes them subject to the rules of evidence of a standard military tribunal. otherwise we can accuse any POW of being an illegal combatant, torture them until they confess, then shoot them. And if you want to talk about setting a dangerous precedent, that would be it.

(actually we could accuse ANYONE of that and use those methods)

And then, we are still bound in our punishment by the dictates of the 8th amendment which prohibits cruel and unusual punishment. Why? Because even if we assume as you do (incorrectly) that a treaty amends the constitution (it does not, it becomes legislation that can be struck down for being unconsitutional... if it amended the constitution it would need to be ratified by the state governments) there is nothing in the geneva conventions that prescribes how illegal combatants should be treated, but only states that they are not protected by the convention. Laws within the power that holds said illegal combatants must still be followed. The lack of protection specified within the geneva convention does not give us carte blanche to torture said illegal combatants.

By the way, just to add fun, the Constitution doesn't prohibit torture - it prohibits cruel and unusual punishments. What if the "cruel and unusual" isn't a punishment but a means of interrogation? Or simply an expedient way of getting rid of a problem?

It prohibits unreasonable searches and siezure, the deprivation of life liberty or property without due process and the kicker, self incrimination, which torture certainly is. So at min torture violates the 14th, and the 5th amendment, and the 9th. I am pretty sure that the 9th amendment applies because the right not to be tortured is pretty common sense.

Once they're found guilty, they're in that dark, murky place. Put simply there are two sets of privileges, those that apply to combatants and those that apply to civilians. Those two sets are definitive and exclusive; there are no legal privileges or protections outside those two sets. So, illegal combatants, not being civilians and not being combatants have no rights, no protection and no privileges.

The convention makes a distinction. Our constitution does not. The lack of mention in the convention, unless there is a section I am missing, is not carte blanche, to say otherwise is a non sequiteur

[Alyrium Denryle]

That's a pretty quick one to answer, no it doesn't. When U.S. troops are in a foreign country, they are subject to the laws of that country unless a specific agreement to the contrary applies. I've been on-scene where exactly that applied; a U.S. serviceman beat up a Thai bar girl - he was arrested and dealt with under Thai law.

My point is that in the case of POWs, protected by the convention specifically or not, if we charge them with a crime, they are subject to any and all protections they get under our law. Because if we charge them with a crime we are by definition claiming jurisdiction. We cannot deny a jurisdictional claim and also charge them with a crime. We cannot have our cake and eat it too

[CJvR]

IIRC there are some limitations to how you can treat even illegal combatants and torture is a general nono. However you can punish them simply for fighting, something you can't do to legal combatants. However you do need to legaly declare them as outside the treaties, something you can't do unilateraly but need the consent of a neutral third party.

[Adrian Laguna]

I'd disagree that's an ideal procedure, it puts our own troops at far too much of a disadvantage. The real problem here is that the Geneva Conventions were written to establish a clear divide between combatants and civilians with the aim of reducing casualties to the latter group. However, the policy of the various terrorist groups is precisely to blur that division and thus create as many civilian casualties as possible so your suggested modus operandi is playing right into their hands.

How would this play right into their hands? I'm talking about what happens after they're taken prisoner, not what happens in the field. If they were shooting at our troops they are by definition not civilians, so what are they? A tribunal makes a decision, and based on that decision they are either shot or kept as POWs.

I think this brings us to the real problem we face and that is the Geneva Conventions and all that they represent simply do not apply to this kind of situation. They represent warfare between nation states and are an attempt to humanize same. The terrorists are not a nation state and are not bound by the rules. I think the time has come when we really have to rethink (on a multi-national basis) exactly how we handle terrorist groups. One possibility might be to treat them the same way as pirates. Declare them the common enemy of all mankind and simply state that any nation is authorized to do whatever it takes to put them out of business.

"Whatever it takes" is a very open statement. In fact, under a "whatever it takes" policy, the United States could simply blanket nuke the ME and call it a day. I'm not opposed to the use of atomics (in fact, I encourage it), but there is such as thing as excessive force.

In my opinion the Geneva Conventions, and earlier laws of war, are adequate for this situation. Those who are not fighting legally, the most basic requirement of which is to carry arms openly, are classified as francs-tireurs, in the sense used by the tribunal in the Hostages trial, and are simply shot out of hand. In terms of what to do on the field, I believe that the tactics being used by the US now in Iraq are effective.

There's an underlying presumption here that "torture" is being used as a punishment. It isn't, its being used as a means of gaining information. So the "cruel and unusual" clause doesn't apply.

No there isn't. I'm not talking about the law, let alone US law, it's actually quite irrelevant to my argument. You said the United States was trying to be decent, I argued that it would be more successful in this endeavor if it would adopt a policy of either treating its prisoners as POWs or shooting them if they're found to be illegal combatants.

I'd argue the whole thing differently. Decency has nothing to do with this, the whole question is, does it work? The answer usually is no, torturing prisoners doesn't get us what we need to know - people who've been at the sharp end are pretty unanimous on that.

That's what makes this whole waterboarding business so peculiar - by all accounts its extremely effective and produces results in just a few seconds. Why? Why should this technique be so different?

Maybe it hits that sweet spot between interrogation and torture, taking the best of both worlds. Though I'm not entirely convinced it works, it's one thing to get a person to talk, quite another for them to tell you the truth.

[Beowulf]

A couple notes: The Geneva Conventions was created to protect soldiers and civilians from ill treatment. As such, it declares two protected categories: Lawful Combatants, which are defined, and civilians, which are persons not engaging in hostile activity with the occupying power. The Taliban are not lawful combatants because they do not follow the generally accepted laws and customs of war. Neither are they civilians, because they fight the occupying power. As such, once they have been found to not be protected persons by a competent tribunal, we may due anything we wish to them without violating the Geneva Conventions.

The term "unlawful combatant" does not appear in the Geneva Conventions because the GC are only concerned with "protected persons" which is not a class unlawful combatants are a member of.

Because torture is not used as a punishment, but rather as an interrogation tool, the 8th amendment prohibition on cruel and unusual punishments does not apply.

The reason why we have not simply shot the terrorists out of hand is because they generally have useful intelligence which can be gained from them.

[Stuart]

I refer to things like the bill of rights, which specifically uses the word "person" as opposed to citizen, or even The People (which implies citizen or perm resident) when it dilineates the legal protections guaranteed to individuals who fall under our jurisdiction. This prevents us from, for example, using coerced testimony or forcing an individual to incriminate themselves.

I'd refer you to the first part of said document - its the constitution of the United States of America. It applies only to the USA, the people within its teritorial limits and to its citizens when abroad. It does not apply to people who are not US citizens and who are outside the territorial limits of the USA (The and is very important there). Outisde the USA, it ony applies to dealings between US citizens - I'd refer you to the bar girl incident again. The point about that is that the way the incident was handled had nothing to do with the US Constitution, Bill of Rights or anything else. It had everything to do with how the Thai police handle things - which can be very laid-back or unbelievably brutal depending on how much the perp annoys them. Piece of advice - if busted by the boys in brown in Thailand BE POLITE. Much more effective than getting a lawyer.

We can shoot them if they are found to be an illegal combatant, however we have to find out first, and that makes them subject to the rules of evidence of a standard military tribunal. otherwise we can accuse any POW of being an illegal combatant, torture them until they confess, then shoot them. And if you want to talk about setting a dangerous precedent, that would be it.

Which is why the rules say the accused has to be given the same legal protection as a member of the armed forces before a court martial. However,this is something of a diversion since the point of the fun and games here is to get information, not a confession.

And then, we are still bound in our punishment by the dictates of the 8th amendment which prohibits cruel and unusual punishment. Why? Because even if we assume as you do (incorrectly) that a treaty amends the constitution (it does not, it becomes legislation that can be struck down for being unconsitutional... if it amended the constitution it would need to be ratified by the state governments)

Once again, I point out that I qualify that by the inclusion (twice) of the caveat "unless the Supreme Court says otherwise". The treaty goes into law; if the Supreme's don't throw it out for contradicting the Constitution, it becomes the way things are done. (OBVIOUSLY if the Supreme's do throw it out then the treaty is dead). So what happens if the US signs and ratifies a treaty that is in blatant breach of the Constitution yet the Supreme's don't throw it out? It's been affirmed as the law of the land and the Consititution has effectively been ammended. I agree that it hasn't been formally ammended but it might as well have been.

Going off topic slightly, this is something the NRA get hot under the collar about. They see this case happening. The UN is trying to ban all private gun ownership; so they sponsor a treaty that declares that firearms may not be owned by civilians. A US Administration signs that treaty, somehow gets it ratified and when its appealed to teh Supreme Court, the treaty gets upheld. That means the Bill of Rights has just been ammended by the deletion of the Second Ammendment doing an enhd run around the whole Constitutional Ammendment process.

there is nothing in the geneva conventions that prescribes how illegal combatants should be treated, but only states that they are not protected by the convention. Laws within the power that holds said illegal combatants must still be followed. The lack of protection specified within the geneva convention does not give us carte blanche to torture said illegal combatants.

Actually, it does. Geneva 47 pretty much over-rides everything else unless the state in question hasn't signed it (quite a few haven't). So its the final authority.

It prohibits unreasonable searches and siezure, the deprivation of life liberty or property without due process and the kicker, self incrimination, which torture certainly is. So at min torture violates the 14th, and the 5th amendment, and the 9th. I am pretty sure that the 9th amendment applies because the right not to be tortured is pretty common sense.

But none of those apply to captured illegal combatants who are not subject to the Constitution - ie any who are not Americans.

The convention makes a distinction. Our constitution does not. The lack of mention in the convention, unless there is a section I am missing, is not carte blanche, to say otherwise is a non sequiteur

But the Constitution does not apply to illegal combatants -unless they are American and busted by Americans - then all teh Constitutional safegurds you refer to do apply

My point is that in the case of POWs, protected by the convention specifically or not, if we charge them with a crime, they are subject to any and all protections they get under our law. Because if we charge them with a crime we are by definition claiming jurisdiction. We cannot deny a jurisdictional claim and also charge them with a crime. We cannot have our cake and eat it too

Oh yes we can, lawyers do it all the time. They find people guilty of accepting a bribe that the other party is acuitted of paying for example. The fact is that we're not charging the illegal combatants with a criminal charge, we are hitting them with a charge under military law as determined by the Geneva conventions and the guiding principles are the ones laid down there. As I've said, the Constitution comes into play if the accused is an American in an American court. The laws being use dare Genevam, not American.

How would this play right into their hands? I'm talking about what happens after they're taken prisoner, not what happens in the field. If they were shooting at our troops they are by definition not civilians, so what are they?

By treating them as combatants, they;re allowed privileges and benefits they don't deserve. It's a moot point though, get caught shooting at troops with weapons while dressed as a civilian and one's demise is very prompt.

Though I'm not entirely convinced it works, it's one thing to get a person to talk, quite another for them to tell you the truth.

Which is a really good reason for not torturing people (and why most sharp end people don't support such things). Waterboarding in the present circumstances is very odd though, apparently it does produce accurate information.

Maybe it hits that sweet spot between interrogation and torture, taking the best of both worlds.

That's a very good way of putting it. However, there is something very peculiar going on. We have these guys who are determined to die, ready to blow themselves up etc etc etc yet they crack after a few seconds of simulated drowning (apparently 35 seconds in one case). I wonder if there is some cultural or religious influence here that makes drowning a particularly shameful or damning way to die?

[wjs7744]

That's a very good way of putting it. However, there is something very peculiar going on. We have these guys who are determined to die, ready to blow themselves up etc etc etc yet they crack after a few seconds of simulated drowning (apparently 35 seconds in one case). I wonder if there is some cultural or religious influence here that makes drowning a particularly shameful or damning way to die?

A minor point, being blown up takes milliseconds, perhaps less. Suffering and death are different things, after all.

[eyl]

As I understand GC4, illegal combatants do not have the rights of POWs or civilians, but are still supposed to be treated as civilians as far as security allows:

Article V: Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Of course, since civilians are prohibited from attacking soldiers, you can still try them for murder.

Another question is whether Protocol Additional I to the Conventions is considered customary international law, as it further complicates the issue by expanding the definition of lawful combatants (stupidly, IMO)

That's a very good way of putting it. However, there is something very peculiar going on. We have these guys who are determined to die, ready to blow themselves up etc etc etc yet they crack after a few seconds of simulated drowning (apparently 35 seconds in one case). I wonder if there is some cultural or religious influence here that makes drowning a particularly shameful or damning way to die?

You're assuming their psychological state is constant.

[K. A. Pital]

Waterboarding in the present circumstances is very odd though, apparently it does produce accurate information.

Is there any proof it does?

[Stuart]

Is there any proof it does?

Apparently yes, I'm told that the information form KSM (the guy who cracked in 35 seconds) checked out in fine detail. So it does work. Apparently. I guess there is a form of confirmation bias there though - we get told about the cases that work.

As I understand GC4, illegal combatants do not have the rights of POWs or civilians, but are still supposed to be treated as civilians as far as security allows:

That's why I gave a source that has the complete original docmentation so that people could go and read the source documents for themselves rather than rely on second-hand comment and interpretations. A lot of people make their careers from trying to interpret these documents so its not as if we're in a closed-loop discussion here. The truth is that pretty much all of these studies end up with "one one hand.... on the other hand" and there are no absolute solutions or positions.

A minor point, being blown up takes milliseconds, perhaps less. Suffering and death are different things, after all.

I can't speak to the truth of that, I haven't been killed yet. However, the people who have been picked up and waterboarded were supposed to be the big, tough guerilla fighters, inured to hardship etc etc etc and they cracked in a few seconds. Hence my question.