Writing on the Double Yellow Line

Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Location: Illinois, United States

Friday, May 29, 2009

Hogan’s Heroes, Revisited

Hogan’s Heroes, Revisited
© 2009 Ross Williams

With the change of Administration came a renewed call for trials and charges and habeas corpus and Due Process for the Detainees [incorrectly termed “Prisoners of War”] at Guantanamo Bay Naval Station. Those making these renewed calls are those who wish to advertise that they know nothing about the applicable international conventions which apply, and wish to do so as loudly as possible in public.

Typically, this would serve only to embarrass themselves to a wide audience. However – and unfortunately – the audience in question knows no more about it than the intellectual ninnies calling for civil rights to be lain at the feet of those who, until captured, were trying to kill US soldiers in a war zone.

Several things have been going on with this subject and it’s painfully obvious that no one – particularly none of those in authority or claiming authority – is willing to acknowledge anything outside their own narrow agenda. Perhaps this is not so surprising, but it is still annoying as hell. I’m getting more than a little tired of having to point out how not only is the emperor naked, but so are those who have ever sought to replace him.

Get some clothes on, all-a yuz. It’s chilly. And hit the gym, wujja?

At any rate. We embarked on a war in Afghanistan in late ’01 in response to the paramilitary agents calling themselves Al Qaida and residing in Afghanistan who undertook acts of war and quasi-war against us on 9-11-01. Because the putative government of Afghanistan – the Taliban – would not assist the rest of the world in locating and detaining those residents of Afghanistan responsible for the acts of war as would otherwise be required, the system of recognized international protocols commonly called International Law defined those al Qaida agents to be the responsibility of, and effectively agents of, the nation of Afghanistan.

Ergo, because Afghanistan was the refuge for a paramilitary group who undertook trans-national acts of war, and because Afghanistan refused to help find and prosecute that paramilitary group, the government of Afghanistan is assumed responsible for that paramilitary group and became complicit in their actions[1].

So we invaded Afghanistan.

The next thing that happened is – not surprisingly – the folks in charge of Afghanistan and the paramilitary group they helped fought back. The Taliban and al Qaida were not going to go quietly into that good night, and they shot back at us. When cornered, or when they ran out of bullets and RPGs, though, they gave up. Quit. Raised their hands and turned themselves in. They became our prisoners.

Just one wrinkle, though. According to the internationally recognized protocols – which are, once again, what we call International Law – the folks who fought back against our invasion were not, by and large, following the rules of how to play soldier. Those rules require that if you’re going to play soldier, you either:
1. Wear the uniform of your formal military force, or
2. If you are not part of a formal military force but wish to play soldier anyway, you must either [among other things] wear a badge or marking “recognizable at a distance” to indicate that you are not a civilian, or you must be part of a spontaneously formed invasion resistance force which carries its weapons “openly”.

The wrinkle is that neither the Taliban nor the al Qaida combatants did either one of those things.

…and it should probably be described here why these particular international protocols – in this specific case, the Geneva Conventions – were written in the first place. The reason was to make war somewhat more civilized, by making it easier to tell soldier [and those playing soldier] from civilian and thus make it a little safer for civilians caught in a war zone. If you were a civilian playing soldier and you didn’t follow the rules requiring you to identify yourself, then you are instead making it more dangerous for civilians in the war zone – for soldiers have the right to shoot at anyone shooting at them, soldier or otherwise. And if you make it more dangerous for civilians by refusing to follow the rules for playing soldier, the Geneva Conventions were written to discourage the practice be excluding those persons from the safeguards and protections that the Geneva Conventions otherwise guaranteed.

In other words, the Geneva Conventions themselves say that if you don’t play war properly, the rules of “fair” and “humane” treatment do not apply to you.

The Taliban and al Qaida combatants were caught fighting out of uniform and, because their existence predated the start of the war and could not therefore be considered a “spontaneous” militia, they were also caught out of required marking “recognizable at a distance”. This means they were indistinguishable from civilians in the war zone. This means they made it more dangerous for legitimate Afghan civilians. And then we captured some of them.

Let’s read the actual GenCon[2] that applies here, the Geneva Convention relative to the Treatment of Prisoners of War. Article 4 of this GenCon describes who qualifies for the protections under this convention and, by exclusion, those who do not. The highlights:
· Para. A, subpar. 1: uniformed armed forces
· A 2: militias: “… having a fixed distinctive sign recognizable at a distance”
· A 3: armed forces even of nations not officially recognized
· A 4: military contractors [i.e., me]
· A 5: air or maritime crews not covered under other treaties
· A 6: spontaneously-formed militias which carry their arms openly

· B 1: ex-military who have tried or may try to rejoin the military
· B 2: any of the above who seek neutral country to escape the war

That’s it.

Nowhere in these critical definitions is the inclusion of pre-existing paramilitary groups who fail to identify themselves as civilians playing soldier. According to this Geneva Convention, the protections granted by it do not apply to them. They are making armed conflict more dangerous for civilians caught in the war zone and the protocols of International Law actively try to discourage this behavior by excluding them from humane treatment.

The standard rebuttal to this is to cite the third paragraph of Article 2, which says: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.” Which means that the United States is still required to abide by the terms of the Convention regardless of whether its enemies do or not.

…to which: we were. The Convention defines only certain types of combatants to have the protections guaranteed, and we were following the Convention by denying protections to those who do not meet the qualifications for Prisoner of War. With specific reference to the war in Afghanistan: Taliban and al Qaida combatants are not “prisoners of war” and we are under no obligation – according to the Geneva Convention relative to the Treatment of Prisoners of War – to treat them as if they were.

In point of fact, we would, instead, be acting contrary to this GenCon were we to apply POW protections to those who don’t qualify.

The second quibble commonly made[3] is that Article 3 states: “…Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely … the following acts are and shall remain prohibited at any time and in any place whatsoever…: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; … Outrages upon personal dignity, in particular, humiliating and degrading treatment; The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Phwew! This, to these imbeciles, means that irrespective of who can be classified a proper POW by the terms of the Convention, the protections of POW must be applied despite the wording of the Convention itself which says otherwise.

That is simply preposterous. This idiotic interpretation of the GenCon is based, in no small part, upon the willful and deliberate elimination of the first sentence of the Article[4] cited: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:…”

Article 3 applies to civil wars and civil wars only … in nations which have signed onto the Geneva Conventions. The US invasion of Afghanistan is not a civil war. “Common Article 3” does not apply. Article 4 definitions declare that the combatants captured in the Afghan War are not POWs and not, therefore, granted protections.

So, if they don’t qualify as legitimate Prisoners of War, what is their International Law disposition properly to be?

Technically, the IntLaw definition which most closely describes these people is mercenary:[5]
Article 47.-Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:
(a) Is specially recruited locally or abroad in order to fight in an armed conflict;
(b) Does, in fact, take a direct part in the hostilities;
(c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) Is not a member of the armed forces of a Party to the conflict; and
(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

A mercenary does not have the right to be a POW. …interesting…

And going down through the list of requirements of mercenary-dom:

Both the Taliban and al Qaida were recruited locally and abroad to fight in armed conflict; the Taliban, to fight against the “Northern Alliance”, al Qaida to fight against American-led crusading.

Both Taliban and al Qaida combatants actually participated in that [eventually merged] conflict.

Both are motivated by private gain – 72 virgins in paradise is, to their worldview, every bit as material as a paycheck; and since there were no legitimate armed forces of Afghanistan in the first place, any non-theological remuneration is more than a comparable uniformed combatant would get – anything is more than nothing.

The Taliban and al Qaida both are largely foreign transplants into Afghanistan; Taliban coming in following the evacuation of the Soviet forces to take advantage of the power vacuum in order to install a fundamentalist Islamic regime, and al Qaida arrived in the years after that because the territory suddenly became a safe haven from which to plan and plot anti-western, anti-US paramilitary activities.

Neither are members of any state military.

Neither were sent by another state.

They are mercenaries. They are “illegal” combatants insofar as this protocol of International Law says they “do not have the right” to be combatants, and if captured, they do not have the right to be POWs.

If they do not have the right to be POWs, and are not rightful combatants, then why is there so much fuss about us treating them impolitely?

Because most of what we know about International Law comes from Hogan’s Heroes reruns.[6] Hogan could always stymie the Nazis by waggling his finger and invoking the Geneva Convention, thus causing the Gestapo Major Hochstetter’s blood pressure to skyrocket and Klink to issue his withering and weary cry of exasperation, “Colonel Hoga-a-an…”

Ultimately though, on the point at specific issue here – these captured combatants are “illegal” combatants and were called “detainees” instead of prisoners of war – the United States was entirely correct in its initial claims. Using the very plain[7] interpretation of the applicable pieces of International Law, the vast majority of those captured in the Afghan war and sent to Guantanamo were outside the protections of the Geneva Convention relative to the Treatment of Prisoners of War; they were more properly defined as mercenaries and thus not “rightful” combatants in the first place – which also denies them POW protections; and the criticisms of US policy over the terminology and treatment are baseless, requiring whole sections of international treaties to be voided.

On other issues, though, the official US position was based upon moral grandstanding and upon no legal footing whatsoever: the desire to charge these captured combatants with US crimes.

At issue here is a very basic requisite of US and International Law: no ex post facto laws are allowed. The crime of “terrorism” was created by an outraged Congress after these people were captured and sent to Cuba. They were then to be tried for committing these crimes for actions they took prior to being captured. This is both an IntLaw foul as well as US law foul. Can’t do that.

Yes, yes, I know. We were all so very indignant that the world’s most visible and damaging acts of terrorism to date were taken against us on our own soil; that is enough to make anyone’s blood boil. But you gotsta follow the rules. It is enough that we have captured a whole bunch of mercenaries to whom we owe, under International Law, no particular politeness.

That wasn’t good enough, though. The Administration wanted to rub salt into their wounds, add the insult of war-criminal conviction to the injury of being captured in a holy war against crusaders and, by being captured, denied martyrdom. So Congress back-dated a brand new law to try the “illegal combatant” detainees using procedures which no US or international legal authority would support.[8]

…and the Administration was surprised as all get-out that the perennially tear-stained sympathy-fops among us, decked out in their self-loathing hair shirts, would object in every legal forum in the country until they found a judge who knew as little about international rules of war as they themselves did[9].

The perennially tear-stained sympathy-fops tried every manner of “legal” argument as well, in attempt to find any kind of story that would resonate with an ignorant judge. Among the arguments used were:

1] The Administration tried to sidestep American Constitutional protections of those in its custody by placing the “prisoners of war” in a non-US territory so as to escape US jurisdiction. Sorry, guys; Guantanamo Bay Naval Station on the island of Cuba is US territory. Stop listening to Castro.

2] The fake “prisoners of war” are entitled to have charges filed against them, and legal representation to dispute those changes, and just because they were captured – it says so in the Constitution. Sorry, guys; hostile actions between nations [or pseudo-nations, in the case of al Qaida] are governed by international law, and international law only. The international law which we signed onto and agreed to abide by says so. Further, no charges are necessary in order to detain a combatant, and any legal representation is only warranted if they would be charged with specific crimes committed “as a prisoner of war”.[10]

3] These pseudo-POWs are to be tried in civilian courts with legal rights afforded to US citizens … by virtue of the fact that it is the US which captured and is now holding them. Sorry, guys; International Law says otherwise.[11] Those captured in hostile action are subject to the capturing nation’s Military Law.

4] Sadly, et cetera.

Even more sadly, not one of the legal arguments made against the Administration’s proceedings were based on the only sustainable legal argument available: neither applicable international law nor US law support the concept of writing a law against terrorism after the fact with which to charge paramilitarist combatants.

In any event, the wet panties at the ACLU eventually found a judge as dim and ignorant as they were, and got a federal court to stop the legal proceedings against the detainees based on their potpourri of boiled gasbag assertions. The Administration, naturally, appealed the decision and the USSC put their political thumbs in the pie.

The most notable plum the High Nine pulled out of this nursery rhyme case relied upon a grossly distorted, dishonest and legally insupportable reading of Article 3 of the Geneva Convention relative to the Treatment of Prisoners of War. They completely removed the qualification that Article 3 applies only to “armed conflict not of an international character”, which very clearly does not apply in this case, and thereupon wildly extrapolated the whole range of Convention protections to those the Convention excludes from protection, and to whom other conventions specifically deny those protections.

In other words: the USSC ruled that International Law is subordinate to US Law, and required us to treat as POWs those which International Law says are not POWs. The US acting high-n-mighty and self-superior. Who’d-a thunk it?[12]

Well, they are the USSC, after all; they have the authority to define how the US interprets its obligations under international treaties … irrespective of how logically strained or legally insupportable those interpretations may be.

So … fine. The “detainees” at Gitmo are now POWs. Which means that the US’s formal obligations to them are defined by post-Article 4 provisions of the Geneva Convention relative to the Treatment of Prisoners of War, which include the following:
· The POWs cannot be charged with crimes not defined at the time “said act” was committed – article 99.
· Absent criminal charge for judicial proceeding, the POWs do not need, as they are not otherwise entitled to, lawyers – article 105.
· The POWs can be held for an indefinite length of time, the end point of which is “the cessation of active hostilities” – article 118.

To say that this whole thing has been bungled from the beginning by every stooge involved is an insult to stooges. And we are now seeking the extremely myopic policy of releasing the Prisoners of War [previously and properly termed “detainees”] under the false notion that a nation – specifically the US – cannot detain those who tried to kill their soldiers during a war.

Arguably, this whole thing came about in the first place because the US tried to backdoor its collective righteous indignation into the crime of painting a target on America, and how dare anyone do that. When professional panty-wetters took exception to prosecution of this crime being used in the name of the United States, instead of arguing that the new “crime” was anti-procedural gimcrackery, they scatter-gunned a legal response which threw the whole thing into spiraling nonsense.

At this point, little can bring it back to a sound legal footing except those who untracked it in the first place with their “crime of terrorism” lunacy; they need to throw up as many legal roadblocks as the ACLU did and claim that the charges levied against the newly-defined POWs were improper, and have all legal renderings from the first such charge voided.

If the men detained in Gitmo are mercenaries as International Law says, then go through the proper mechanisms of defining them as such and summarily execute them – as we are entitled under that International Law to do.

If these people are, instead, to be considered Prisoners of War, then they get no lawyers and the ACLU needs to go away; further, they are also to be confined until the end of the war in Afghanistan – whenever that may be – and the ACLU needs to shut up about their indefinite detention.

But this wholesale redefinition of US and International Law to suit the whim of the day – no matter whose whim it is – has gotta stop. Makes us look arrogant and self-righteous to the rest of the world. … as if we think our rules are more important than everyone else’s and we’re making it up as we go along.


[1] A similar situation arose in South America in 2008, in which a paramilitary group in Ecuador crossed the Colombian border to undertake acts of quasi-war against Colombia. Columbia notified Ecuador that the raid took place; Ecuador said “Sorry, we can’t help you,” and Colombia thereupon sent its own military across the Ecuadoran border to kick some paramilitary ass. Ecuador complained to the UN and every reporter it could find about the Colombian border incursion, and while the reporters dutifully took notes about the US lapdog Colombia being rude to Ecuador, the UN said, “Too bad; you needed to either stop that paramilitary group before they raided Colombia, or turned them over to Colombia when asked. Doing neither makes you responsible for them.” Cuz that’s the way it works.
[2] http://www.unhchr.ch/html/menu3/b/91.htm
[3] This argument was made in front of the USSC, which repeatedly cited “Common Article 3” in order to upend the heretofore universal interpretation of this GenCon and which effectively obliterated Article 4 of the thing. Legislation from the bench?
[4] Geneva Convention relative to the Treatment of Prisoners of War, article 3
[5] http://www.unhchr.ch/html/menu3/b/93.htm
[6] “We” does not include me, by the way. But unfortunately, it appears to include many of those who argued ineffectively in front of the USSC on behalf of the US posture taken – which was entirely consistent with both our previous enactments of these GenCons as well as the universally recognized international interpretations of them. “We” also, unfortunately, includes nearly all of those who argued against the US position – and who continue to do so – for it requires wholesale redactions to the protocols involved in order to get the strained interpretations they wish to arrive at.
[7] Not to mention universal
[8] Geneva Convention relative to the Treatment of Prisoners of War, article 99
United States Constitution, Art I, Sect 9
[9] Are your ears burning, ACLU?
[10] Geneva Convention relative to the Treatment of Prisoners of War, article 105
[11] Geneva Convention relative to the Treatment of Prisoners of War, article 84
[12] …and wasn’t that why al Qaida attacked us in the first place? For presuming to be better than everyone else? Why, I believe it was.


Anonymous Jack Moore said...

Hi there,
As I was looking through your blog, I saw that you have a broken link here: http://www.unhchr.ch/html/menu3/b/93.htm.
And I thought I would share with you another Geneva Convention Link: http://www.criminal-justice-careers.com/crime/the-geneva-conventions.html.
Please feel free to use it as a replacement.
Thanks and keep up the good work!

April 07, 2010 11:08 AM  

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