unlawful combatant

Chuck Grimes cgrimes at rawbw.com
Wed Jan 30 13:43:16 PST 2002


Well, I obviously agree unlawful combatant is bullshit. But the case in California US District Court (Coalition of Clergy v. Bush) for a writ of habeas corpus, cited Johnson v. Eienstrager, and that case used the term. The current order to show cause listed four criteria to address, among them the question of status, i.e. are the detainees in Guantanamo enemy aliens in the sense used in Johnson.

In Johnson, the details of the case were different, and of the five points addressed in the dissent (where unlawful combatant was used), only one, (enemy aliens), of the five are met by the detainees in Guantanamo. But in Johnson, the term `enemy' was apparent, since the prisoners (German nationals) were arrested in China, after German surrender, but before Japan's surrender. They were arrested as enemy aliens, tried and convicted by a US military tribunial. The detainees in Guantanamo have not been named, nor their nationality identified, and we are not at war with any state, hence the term `enemy' at this point is open to legal question.

The question of jurisdiction depends it seems on a question of territory, and person's status. I would argue Guantanamo is US territory. First, we possess it under least and maintain absolute sovernity over it, against any other state claims---such as Cuba. It is US territory by default. So the detainees were brought to US territory. And, I would argue, further, since they have been denied status as pows, their nationalities are un-identified, they are without any other forum, neither state nor the UN, they have no alternative but to appeal to the US civilian courts, for a hearing.

Under the unlawful combatant status in Johsnon, the prisoners were named, their nationality was known, they were charged, tried and covicted by a US military tribunial during time of a formally declared war. None of these details applies here, since the detainees have never been named, let alone charged, tried or convict before any tribunial.

It is clear that Rumsfeld is playing games here to keep them from being classified as prisoners of war, because this status has numerous rights attached, among them writing home, right to not be tortured or or compelled to give more information than their own identity, etc.

In any event, yes article 5 in the Geneva Conventions explicitly states that those of undetermined status will enjoy rights as a pow, until a competent tribunial rules otherwise. Rumsfelt, and his decrees do not constitute a competent tribunial.

So, yes this unlawful combatant status currently violates the GC because it has not been heard before a court or tribunial.

The decision in California is due Feb 20th not Feb 8th.

I am at work where it is freezing. More tonight

Chuck Grimes



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