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Charles: Good show , Chuck ! We should be shoved off our duffs. Actually, the legal arguments of the Bush admin. position are so warped from a logical standpoint, that countering them is in argument is not hard. This is a case where the maxim ( that Max has alluded to) that law is politics comes to the fore. ( Might makes right is especially true in international "law", and especially, especially in war ). We have to make strides toward popular opposition to the war to win in court. In other words, the only thing the Bushites have going for them from a legal standpoint is that might makes right and they have the overwhelming dominance on might right now ( sadly that is sufficient to win this legally, too). So, my legal work right now on this is in the Detroit Anti-War Network.
To reiterate some of the logical legal issues, there is no legal situation that is neither under the U.S. Constitution or the Geneva Accords or both. Bush or the Congress cannot make up some category that is not provided for by the Constitution, Bill of Rights etc. Even under the U.S. Constitution, those prisoners cannot be subjected to cruel and unusual punishment, so even without the Geneva Accords they are due minimally good treatment. Prisoners of war have to be released after the war is over...
Habeas corpus - "Do you have the body ? " in Latin. If you do. Why are you holding the body ? This writ was developed exactly for situations such as this where a state is holding someone in legal limbo, not charging them in court, just holding them. The only excuse for not bringing them to court would have to be that they are prisoners of war. It's got to be one or the other.
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This whole business of unlawful combatants and military tribunals is fascinating to me. It bares on the entire relation of the person to the law, the state, and international legal bodies. How much more oppressed, deprived, and degraded can you get, than to be held by your enemy, incommunicado, shackled, blindfolded, in open pens, awaiting probable torture and possible execution?
Come on guys (Charles, Justin, Nathan, et al), this is the classic stuff of law and state. It is almost tailor made for NLG, and the whole legal community of progressive civil rights and prisoner groups.
I think, this is one collection of issues that might be fought on very high ground---and used to extend these issues in a progressive direction. Even if they are ultimately lost, the arguments become part of the formal record and history. Winning would be great too.
In my mind, even losing badly, is a win, since the right kind of arguments, made and lost, will illuminate the principles of law and its status in the US. For example, the Gore v. Bush decision was an atrocious miscarriage, utterly and transparently bad, and it resulted in installing what will mostly likely become one of the all time worst executives in US history. That alone will condemn that decision, and this court, and just about everything it writes.
If anybody doubts how bad this will get, just start adding up the last six months. Here we are in a recession, an undeclared and unbounded war in Asia, turning into a demi-police state, and up to the eyebrows in massive corruption and probably cover-ups. After Bush's arrogant threats of war against Iran, Iraq, and North Korea last night, we are probably steering straight into a sea of these insane disasters and atrocities.
And as if that wasn't enough motivation, how about the announcement (Lawyers to Consider Stand on Military Tribunals, 01/30/2002 Reuters) that the ABA policy-making body is exploring a proposal to back Bush's order on military tribunals.
Come on. Your not going to let a bunch of lick spittle lackies of the capitalist pig hegemon and demi-fascist state, set the terms of this argument are you?
In case there are already internal movements afoot in the NLG, or any other legal association or movement, it would be nice to hear about them---hint, hint.
Chuck Grimes