Tertium Non Datur

by hilzoy

There's an article in the NYT that discusses the aspect of the al-Marri decision that I found most interesting: whether or not there is some third category in between 'civilian' and 'combatant' into which someone like al-Marri might fall. From the Times article:

"Before the Sept. 11 attacks, there were soldiers and civilians, and it was pretty easy to tell them apart.

Soldiers fought for countries. If captured, they could be held until the hostilities ended and were generally immune from prosecution for fighting the enemy. Civilians, on the other hand, could be prosecuted in ordinary courts for quite grave and politically motivated crimes, like the bombings of the federal building in Oklahoma City in 1995 and of the World Trade Center in 1993.

On Monday, a federal appeals court rejected a new, intermediate category proposed by the Bush administration in 2001: “unlawful enemy combatant,” a term intended for people affiliated with the Taliban or Al Qaeda. (...)

Both decisions may yet be overturned. But they have started to bring fundamental questions into focus. What does it mean to be at war with a terrorist organization? And are the old distinctions between soldier and civilian sufficient, or do we need a new category? (...)

Eric M. Freedman, a law professor at Hofstra who represents men held at Guantánamo, said it was nonsensical and counterproductive to go to war against a group of terrorists. He offered an analogy.

“The Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes,” Professor Freedman said. “They’re criminals. You can’t go to war against the Colombian drug cartel. If you could, then when they shot down an American military airplane, they wouldn’t be guilty of anything. They’d have combat immunity.”

Supporters of the administration say that analogies like that are not only naïve but also prove the need for a third category. On one hand, they say, terrorists cannot be considered civilians because they could not then be singled out for military attack or assassination or held for intelligence gathering. On the other, they are not entitled to the protections granted to soldiers because they do not fight on behalf of nations or follow the laws of war.

Critics of the administration say that reasoning is convenient, as it gives the government essentially complete discretion to seize and hold anyone it wants without recourse to the courts."

I don't think that the biggest problem with the government's reasoning is that it's convenient, or even that the protections afforded 'unlawful enemy combatants' are inadequate. It's that if the President believes that there should be a third category of people, then it is absolutely essential that he ask the Congress to enact laws to that effect, laws that can then be tested in court. He cannot do this by fiat.

If he does ask the Congress to pass a law creating some new class of people, then we can have an actual debate. Do we think that al Qaeda members should have the normal protections of law, or not? If not, is this specific to al Qaeda, or does it hold more generally? If the latter, what criteria should we use to distinguish people who fall into this new legal category from people who don't? What protections should people in this category enjoy, and why? What protections should we withhold from them, and on what grounds?

There are a lot of interesting things that one might say about this. John Yoo comes up with some criteria that are not, to my mind, very plausible:

"Mr. Yoo said several factors should be considered in deciding how to classify a given group, including whether its goals were political or financial, the scale of the destruction it caused and whether the purpose of its attacks included wiping out American leadership."

Really? Suppose al Qaeda had "only" flown jets into the twin towers, and that it had done so in order to strike terror into Americans. Would al Qaeda members then not count as enemy combatants on the grounds that al Qaeda had not tried to wipe out American leadership? It's not clear that all groups are motivated by either politics or money; what do we do about groups that are motivated by something else altogether? In particular, is it obvious that al Qaeda's motives are political, rather than, say, religious? If they were based on a particularly repellent version of Islam, would that mean that al Qaeda members were actually civilians after all? Suppose it comes out tomorrow that Osama bin Laden is really motivated by some very complicated and hitherto hidden financial motives: should we then conclude, on those grounds alone, that we can no longer legitimately hold al Qaeda members as enemy combatants, but must either grant them criminal trials or release them? (I mean: I think we should either try or release them, but not for that seemingly ridiculous reason.) Would it matter whether or not al Qaeda foot soldiers had known that the group's motives were not really political?

These are very interesting questions, and it's not at all clear to me either that there is a clear distinction between 'unlawful enemy combatants' and criminals. It's not even clear in the Military Commissions Act: the MCA defines an unlawful enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)", but to make that definition clear, you'd have to explain what counts as "hostilities against the United States." Does it count when a bank robber shoots at a police officer, who after all is an agent of the government? I recall a story from Sweden about a guy who was somehow dissatisfied with the government, and all he could think of to do was to drive his car into the wall of a post office. If someone did that in the US, would that make him an unlawful enemy combatant?

I could, of course, go on, but I'll spare you. I really wanted to make two points. First, creating a whole new category of this kind is extremely serious business, and should only be done when we are convinced it's both necessary and wise. And second, the President does not have the power to create a new category of this kind by fiat. As I said above, if he thinks we need one, he should go to Congress and ask them to pass a law establishing it. He does not get to do this on his own.

Consider what it would be like if he did. He could create a new category, "Clinton appointees", who do not enjoy civil service protections; or "Bush appointees", who cannot be charged with any crime and do not have to obey subpoenas, or "Jenna and Barbara", who are exempt from traffic laws, or "people who irritate the President", who can be thrown into jail without charges or trial. One might think that the last of these would be unconstitutional, but I do not see why the government's arguments in the al-Marri case would not imply that it is perfectly fine. (According to the government, al-Marri doesn't have such normally guaranteed rights as the right to due process or habeas corpus.)

These are, of course, silly examples, but I do not see why a President who had the power to create whole new categories of people and say that the laws applied differently to them would not be able to use that power in precisely these ways. Because to give a president this power would be to give him the power to amend the laws at will, without needing to involve the Congress. And that, in turn, would make him a dictator.

Bush did not consult the Congress when he decided to create the new category into which, according to him, al-Marri falls. Nor did he consult the Congress when he decided that people could fall into this class even when they were not captured anywhere near a battlefield, and even when they had not participated in anything plausibly called 'hostilities'. Congress, to its shame, acquiesced in what he had done, to some extent, by passing the Military Commissions Act. The Congress and the Courts need to make it very clear that the President does not have the power to define new legal classes of people to whom the normal legal system does not apply.

Comments

[eeyn524]

the protections afforded people accused of being 'unlawful enemy combatants'

Do we think that people accused of being al Qaeda members should have the normal protections of law, or not?

Just a nitpick, and I know you're well aware of the distinction. But people need to be reminded, since a lot of the arguments on these issues involve assuming that everyone involved is actually as terrorist.

[Anderson]

I think people need to remember Scott Horton's words in this context:

Most of the odious conduct of this administration turns, after it is carefully deconstructed, on one simple fact: the desire to torture. This is true of the push for military commissions, special evidentiary rules which will allow torture-extracted evidence, the use of national security classifications to hide torture rules, techniques, and sworn evidence of the use of torture. In sum, this is the Bush Administration’s desperate efforts to obscure its own criminality–which now runs rampant.

The same goes for "unlawful enemy combatant." They pulled al-Marri out of jail and into the brig so they could use "heightened interrogation" methods on him, a.k.a. "torture."

[jrudkis]

I do think there needs to be a third way. The Geneva Conventions were written for modern industrialized nations at war. They make sense in that context. But many of the prohibitions don't make sense for insurgencies to follow, because there is no possibility of reciprocity.

For example, the GC prohibits shooting at air crew that have parachuted from a disabled airplane. Since there the insurgents don't have an Air Force, this is not something that makes sense for them to follow (and allow the air crew to get rescued and fly again).

Insurgents rarely have medical infrastructure for their wounded that would have it make sense for them to not target ours, since we are fixing our soldiers and sending them back to the war.

Insurgents can't maintain captured Americans in POW camps, because they can't control land and prevent them from being rescued.

This does not mean that we should therefore be able to torture, but it does mean that the reciprocal nature of the conventions does not work in this type of war, and that some other category, set of rules, and system would make sense when fighting non-nation state actors.

[eeyn524]

jrudkis-

I think you need some better examples for your policy of nonreciprocity. Two of the examples you use are (1) don't shoot at parachuting aircrew, (2) don't shoot the wounded. Are you saying that we should start shooting aircrew and wounded, because the other guys don't have strong incentives not to? What do we gain by that?

[publius]

i'd like to be classified as "jenna and barbara"

on a less important point, the bit about asking congress is what gets overlooked all across the board - fisa, nsa, black sites, etc. i mean, these things are bad, but the larger point is that the were done (1) without congressional authorization; and (2) in a way to hide them from congress.

the great genius robert bork accused liberals of removing things from the political process when it looked like the issues couldn't muster political support. bush is doing something similar (plus, he's breaking existing law)

[rilkefan]

Excellent post.

"don't shoot at parachuting aircrew"

That's so weird. Surely the aircrew isn't hors du combat at that point, is it?

[Hartmut]

Saddam had no airforce left either (and [snark] not many hospitals after Rummy had his way[/snark]). Would taking away the military means of the enemy absolve the taker from following the GC. Btw, the argument that the other side (the Soviet Union) had officially renounced Geneva and that therefore had no right under it was used by Hitler's lawyers. That argument was declared invalid at Nuremberg.

For the record: IMO the US should do a Nuremberg 2.0 and go after the crimes committed by the current and previous administrations without mercy (and preferably without the need of help from the outside "tainting" the procedure).
Ceterum censeo Catenoculum esse pendendum ;-)

[hilzoy]

jrudkis: If the point of the examples about the air crews and medical facilities is: they don't have them, so there's no room for reciprocity, I would have thought that the answer could be: in a case in which we are at war against a state actor (e.g., the Taliban, at any rate when they still were arguably a government we were trying to overthrow): (a) then we'll never have to worry about shooting down their air crews, but we should obey the rest of the normal laws of war; (b) the reciprocity in the GCs isn't limited in scope; the idea is that by being known to uphold them, we will give others reasons to do so as well, both in this and in future conflicts. If so, then the fact that some protections are pointless against this adversary doesn't exhaust the possible benefits to our troops of following them.

[crack]

We need to treat terrorists as pirates. Not the copyright kind.

http://www.legalaffairs.org/issues/July-August-2005/feature_burgess_julaug05.msp

[ajay]

rilkefan: no, it's not weird; parachuting aircrew are hors de combat because they don't have an aircraft any more, do they?

Note, on the other hand, that parachuting paratroops are fair game, because they intend to carry on fighting on the ground.

[retr2327]

Consider what it would be like if he did. He could create a new category . . . "Bush appointees", who cannot be charged with any crime and do not have to obey subpoenas.

Been there, done that, no?

[Ugh]

Isn't part of the GC's requirement of treating opposing soldiers who surrender humanely the idea that they will be more likely to surrender?

It seems to me this applies regardless of how the other side acts.

[Ugh]

Oh, and John Yoo apparently urinated in his pants on 9/11 and continues to do so to this day.

[liberal japonicus]

It is important to remember that the Geneva Conventions were not simply an expression of the industrial powers approach to war, they also accepted an implicit notion that God would weigh in on the 'right' side. Because that thought was there, it was easy to put certain behaviors off limits. It is impossible for us to have that thought now, so the Geneva Conventions now becomes an expression of the more powerful developed nations to put off certain behaviors that put them at a disadvantage.

(This is a historical observation, not a moral one)

[A.L.]

Hil,
I think you get it exactly write when you say:

I don't think that the biggest problem with the government's reasoning is that it's convenient, or even that the protections afforded 'unlawful enemy combatants' are inadequate. It's that if the President believes that there should be a third category of people, then it is absolutely essential that he ask the Congress to enact laws to that effect, laws that can then be tested in court. He cannot do this by fiat.

That's the point the decision's detractors seem to be missing. The bottomline is that there is no third category under U.S. law and if there is to be one, it's Congress's job to make it. I have a long post making precisely this point.

We're not dealing with Platonic categories here ("soldier," "criminal," etc.). We're dealing with laws. Al-Marri fits within the "criminal model" because that's what U.S. law expressly requires. Hamdi was detained while fighting against the U.S. on the battlefield in Afghanistan. Al-Marri was arrested at his home in Peoria. These distinctions matter not just in a Platonic sense, but in a concrete legal sense. And as long as there are valid statutes on the books that govern a particular situation (such as the Patriot Act), the courts don't have to be in the business of making Platonic distinctions.

[A.L.]

Meant to say exactly right. Must remember to proofread.

[hilzoy]

AL: Oddly enough, I was meaning to leave you a comment saying: I have a long post that makes the same point as yours, only from the other end. But you beat me to it ;)

Everyone else: AL's post is quite good.

[john miller]

Yes it is quite good. Interesting that Professor Kerr stopped by and commented. Civilly with a civil response by A.L.

What is key to this whole thing is the degree to which one acceppts or rejects the Unitary Executive theory. If you accept it, then hilzoy's arguement is null and void. If you reject it, then the government's position is null and void.

I personally reject it. However there are many in this country who are scared witless and believe that only with a strong manly President that this country can survive.

The fact that there are so many is what scares me.

[Anderson]

Thanks for that link, Crack; I'd forgotten where I saw it.

I'm unclear, however, whether Burgess argues that pirates could be prosecuted under the laws of whoever apprehended them - which seems to map onto Geneva's treatment of an unlawful combatant - or that pirates could basically be killed on sight, being outside any law.

If the latter, then I don't think we need to go there.

Re: the 3d category that Anon Lib and Hilzoy discuss, I think Congress thinks it *has* made that category, in the MCA. The al-Marri decision just finds that the feds didn't follow the right procedure to fit him into it, and that several years later, it's too late for the feds to get around to doing it.

Oh, and Ugh, see Anon's post -- I think he's found the winner in your contest you announced at Unfogged. Andrew McCarthy, come on down!

[Anderson]

(I do, however, favor the creation of a third category, neither criminal nor combatant, with indefinite detention, for Paris Hilton, Lindsay Lohan, and Britney Spears.)

[rilkefan]

"rilkefan: no, it's not weird; parachuting aircrew are hors de combat because they don't have an aircraft any more, do they?

Note, on the other hand, that parachuting paratroops are fair game, because they intend to carry on fighting on the ground."

The aircrew intends to keep fighting, doesn't it? E.g., the members don't intend to surrender their personal arms and themselves upon landing, do they? And should they manage to escape, might they well fully intend to return to bomb again?

[Sebastian Holsclaw]

"the reciprocity in the GCs isn't limited in scope; the idea is that by being known to uphold them, we will give others reasons to do so as well, both in this and in future conflicts."

Why should this be true if lack of reciprocity doesn't have negative consequences?

[Ugh]

Andrew McCarthy it is! Congrats A.L., you win.

[Hartmut]

There has been (iirc) a (bad imo) tradition* in WW2 to take downed fighter pilots POW and treat bomber crews as criminals (I don't know what happened after fighters started to attack civilians on a regular base). Same with the treatment of surface ship crews vs. submarine/uboat crews (already in WW1).

*afaik not officially backed by written orders.

[Anderson]

Rilkefan's point reminds me of the great many Japanese we machine-gunned in the water during WW2, on a similar theory.

I don't know what the laws of war provide where the enemy is temporarily helpless, but capable of returning to combat. If they're in your power to detain, like in the Japanese example, I would think you'd have a duty to do so. (What is the outcome of the classic hypo where you've captured 100 enemy soldiers but don't have the food or facilities to hold them?)

Re: the parachuting aircrew, if they're Germans over Britain, say, or over the Channel, there's a pretty good bet they can be picked up and detained. If they're parachuting over their home country, however, you might have a better argument for shooting them.

Anyone up on the actual rules in these cases?

[SamChevre]

It seems to me that there IS a third category, which the NYT is missing (and so you ar emissing also). There have been "illegal combatants" (spies, saboteurs, bandits) for as long as there have been wars; they have NEVER gotten either the soldier's protection from punishment, OR the civilian protection from military law.

Now--how well-adapted the historical laws dealing with military saboteurs are to dealing with terrorist groups is questionable. That Sam Davis and Richard Quirin existed, and were executed after military trials, really is not.

[Anderson]

Hartmut, I think we tried as war criminals some Japanese who ordered or presided over such trials of our downed B-29 pilots.

[A.L.]

Re: the 3d category that Anon Lib and Hilzoy discuss, I think Congress thinks it *has* made that category, in the MCA. The al-Marri decision just finds that the feds didn't follow the right procedure to fit him into it, and that several years later, it's too late for the feds to get around to doing it.

I'm not sure that's right, the MCA doesn't provide any statutory authority for detaining anyone. As the court puts it, the MCA "addresses only whether a detained individual is an unlawful enemy combatant subject to military trial, not whether an individual with constitutional rights seized in this country qualifies as an enemy combatant in the first instance."

The MCA framework is designed to apply to foreign nationals detained outside the U.S., not people found inside the U.S. (the Patriot Act framework covers them).

[Anderson]

Sam, we did try the Rosenbergs, didn't we? And they were spies, right?

See Quirin:

The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

I just don't think these examples are stretchable to someone who enters America on a visa.

A.L., you may be right -- let me check the op & see what I was thinking.

[Anderson]

Okay, let's see if I've got al-Marri straight:

(1) The court first ruled that the MCA didn't strip it of jurisdiction b/c the feds didn't follow the procedures to have al-Marri "determined" an enemy combatant. That's the part I was thinking of.

(2) *Then* they argue, pp. 20-27, re: the "awaiting such determination" issue, that in fact the MCA isn't meant to apply to al-Marri at all. So A.L. is right and I'm wrong, though it does seem to make the argument at (1) superfluous; doubtless I am missing a nuance.

[Hartmut]

Anderson, imo all sides were not very consistent (apart from the usual "it's right, when we do it but wrong for the others to do the same") and few were honest about that (e.g. Nimitz saved Dönitz' neck by declaring the German war at sea cleaner than the one the US conducted). I think there was no prosecution for the German bombing campaigns for the sole reason that the Allies had enough honesty to admit that they had done the same but were at the same time unwilling to prosecute themselves (McNamara even quotes LeMay that they would have been treated [rightfully] as war criminals, if the results had been different).

I brought the point up just to show that the debate is not actually new and not necessarily limited to "irregular" combattants.
This shall also not be construed as either an endorsement or condemnation of the war crime proceedings of the past.

Ceterum censeo Catenoculum esse pendendum ;-)

[jrudkis]

From way up above:

I am not arguing that the way we fight should change, because the rules about the fight make sense for us to follow whether the enemy does or not. I am arguing that when we capture an insurgent, rules should be different and have a third option between lawful combatant and criminal.

Insurgents targeting downed crews and medvac are just examples of why it does not make sense for insurgents to follow the GC. They were not written for them, but for us. An insurgent who shoots at one of our medevac helicopters is committing a warcrime, even though he does not benefit from the reciprocity that the agreement is supposed to provide. Medevac capacity is a combat multiplier for us, allowing soldiers to take risks with a relative certainty that they can survive otherwise grave wounds. In those circumstances, it would be foolish not to target our medical capacity.

Similarly the rules for POWs. The agreement is intended to have warring parties treat captured soldiers with respect and humanely, and lays out very specific requirements for how they are to be held (including pay, canteens, mail, access to scientific instruments, etc). Part of the incentive is the reciprocity that your own captured soldiers get. We don't get that, in part because it is not possible for insurgent groups to provide it in any reasonable way.

The manner in which captured soldiers are to be held from a disciplined army makes sense, because the rank structure of the captured soldiers is part of the system for maintaining order within the camp. When the people you are detaining are not part of a system like that, POW camps as described in the GC are not likely to work, because it relies too much on self discipline imposed by those captured.

I think a more reasonable model would be detention resembling pre-trial confinement that we use in the US for people who are suspected of violent crimes, but not convicted. Keep them safe and secure, the guards safe, but do not torture or abuse.

[A.L.]

Anderson,

The first half of the al-Marri opinion, which addresses the MCA, is only relevant to the question of whether the court has jurisdiction to hear al-Marri's petition, not whether his detention is lawful. In other words, the court could have determined that his detention was unlawful but that it didn't have jurisdiction to hear the case under the MCA (luckily it didn't rule that way).

The second half of the opinion addresses the question of whether al-Marri's detention is lawful. In that context, the MCA has nothing relevant to say. The issue is whether the AUMF and/or Article II provides the authority necessary to detain him.

[Erasmussimo]

I am amenable to the idea of a third category, for the practical reason that this third category would consist of people taken captive overseas by the military. Soldiers make lousy policemen, yet they spend a lot of time detaining people. If the people they detain are soldiers, then our soldiers know what to do with them. But detaining people not in uniform confuses the soldier's role. We need a third category of detainee handled by a third class of officer: somebody who works with soldiers but thinks like a policeman. This would also require substantial revisions to the code of military justice.

And yes, this is most certainly Congress' responsibility, not the President's.

[rilkefan]

"Ceterum censeo Catenoculum esse pendendum"

Who do you think ought to be hanged? Chain-eye? Oh. That's probably outside the posting rules, even in Latin.

[Anderson]

True enough, A.L., but had they found the MCA to apply, then al-Marri would've been subject to trial by military commission under the MCA, i.e., he would've fallen into the "third category" I've criticized.

[SamChevre]

Sam, we did try the Rosenbergs, didn't we? And they were spies, right?

Yes, but there was no declared war; that's where the AUMF issue is relevant.

See Quirin:

The ... enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property [is a] familiar examples of [a]belligerent who [is] generally deemed not to be entitled to the status of [prisoner] of war.

I just don't think these examples are stretchable to someone who enters America on a visa.

I do not see the relevance of a visa; coming under false pretenses is usually equivalent to "coming secretly". (If the Germans in Quirin had entered the US openly, using forged English passports, I do not think the legal case would change. I could be wrong.)

[A.L.]

True enough, A.L., but had they found the MCA to apply, then al-Marri would've been subject to trial by military commission under the MCA, i.e., he would've fallen into the "third category" I've criticized.

Not necessarily. The government was attempting to invoke the habeas stripping provisions of the MCA for purely jurisdictional purposes. Had the court ruled in their favor on that question, there's no reason to think al-Marri would have been granted a military tribunal. They just wanted to the court to say that the MCA stripped them of jurisdiction to hear al-Marri's petition.

[hilzoy]

Anderson: I agree that Congress at least started to define such a category in the MCA. But it was years after the fact, and (imho) shoddily done.

SamChevre: I am not (a) a lawyer or (b) a specialist in the law of war, but I had always thought that spies, saboteurs, et al were a subset of combatants, i.e. people who serve a foreign government with which we are at war. The whole problem with this new category is: AQ is not a state, and we are not legally at war with it. (A good thing, too: if we were, then there would be a colorable argument that the plane that flew into the Pentagon acted legally.)

How, exactly, would you propose to distinguish members of AQ planning to blow up a building somewhere in the US from ordinary criminals? That's the question. Ordinary criminals can be hostile to the US, highly organized, lethal, vile, and they can do things like mount long-term campaigns against some branch of the US government. What's the special thing about AQ that distinguishes it from e.g. drug cartels, the mafia, the Weathermen, the Montana Militia, etc., and implies that whereas some repugnant drug lord or white supremacist gets normal criminal protections, an AQ member does not?

[SamChevre]

Hilzoy: You ask What's the special thing about AQ that distinguishes it from e.g. drug cartels?

I argue that there isn't.

I just think that the NYT has an analysis focusing on a useless point, base don non-facts; I don't really disagree with their goal. There have NOT traditionally been only 2 classes--POWs and criminals--there have been 3; one of those classes WAS "unlawful enemy combatants".

The problem arises because AQ is not a government in any coherent sense, NOT because we don't allow people to be tried in the military court system unless they are uniformed soldiers.

[J Thomas]

SamChevre, when was the first legal reference you know of to the third class of unlawful enemy combatant?

[SamChevre]

J Thomas,

I have no idea when the first reference is--it would depend on which nation you looked to.

Nathan Hale was hung as a spy, after a military trial, in 1776 (by British forces, but no one seems to have considered their actions improper.)

[rilkefan]

"What's the special thing about AQ that distinguishes it from e.g. drug cartels?"

Drug cartels are profit-driven, aren't they? And AQ politics-driven? And the former have no primary interest in violence, while the latter don't?

Of course I have a professional antipathy to categories so it's funny to argue for them.

[Anderson]

I am doubtful how much pre-1949 precedents are of value re: spies, etc. -- Geneva takes precedence.

So unless Geneva makes particular reference to 'em, -- anyone? -- I would say that a person found to be a spy is triable as an "unlawful combatant," which is *not* some peculiar new category, but rather is a person triable under the municipal law of the detaining power. AFAIK, anyway -- my Geneva knowledge is largely picked up on the internet here & there.

[jrudkis]

From the Hague convention.

CHAPTER II
On spies

Art. 29. An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the
following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory.

Art. 30. A spy taken in the act cannot be punished without previous trial.

Art. 31. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

[Gary Farber]

"To this class belong likewise individuals sent in balloons to deliver despatches...."

And this saved my life on more than one occasion, let me assure you.

Okay, my imaginary life, if you must pick on trivial details.

[LizardBreath]

It seems to me that there IS a third category, which the NYT is missing (and so you ar emissing also). There have been "illegal combatants" (spies, saboteurs, bandits) for as long as there have been wars; they have NEVER gotten either the soldier's protection from punishment, OR the civilian protection from military law.

I think it's mistaken to treat historical references to 'unlawful combatants' -- spies and such -- as a third category of people. (Note: I'm not claiming it's obviously mistaken. I'm trying to make sense of this stuff myself.) Given that, as quoted above, "a spy taken in the act cannot be punished without previous trial", such unlawful combatants were never treated as outside the law; they were captured as if they were soldiers, treated as prisoners of war until trial, and then tried and punished as violators of the law of war.

My impression is that 'unlawful combatant' in pre-2001 usage, was something much closer to a synonym for 'war criminal' than it was a third category, neither soldier nor civilian.

[liberal japonicus]

The three categories scheme reminds me of the problem that the nuremberg prosecutors had to deal with, in that the Germans took special care to have Jews declared as non-citizens before taking any actions against them and argued that this made what they did 'legal'. I think it is Hilberg who notes that Jews in the regular German prison system had recourse to protections and procedures that Jews who had been stripped of their citizenship did not have. The Germans were also very careful to have Jews who were in occupied territories first declared citizens of the Reich before stripping them of that. The argument was that as stateless people, they fell outside the law and therefore, anything done to them was not illegal. So one way to look at this is as the outgrowth of the shift from a state based system of justice (of which Geneva is just a small part) to an international system of justice. Mind the gap...

[Anderson]

Concur w/ LB.

[hilzoy]

Also concur w/LB. I mean: if you think that there is one broad category, "combatants", which refers to soldiers of an enemy army, you can easily imagine a subdivision into (a) combatants who play by the rules (wear uniforms, etc.), who get various protections, and (b) combatants who don't play by the rules (e.g., spies and saboteurs), who get fewer protections. But then people fighting for AQ would not be combatants at all, lawful or unlawful.

The problem comes with postulating an intermediate group.

(Pedantic note: of course, there are other groups. The insane are liable to civil commitment, people with contagious diseases can be quarantined, etc. But all of these are narrow carve-outs from the default status of 'normal civilian person', and all were made by Congress, not just stipulated by the President.

Pedantic note 2: I do not think many people would protest it, in the case of the US' first ever epidemic, the President started quarantining people and asap got legislation legitimizing quarantine introduced. There are emergencies when it matters to act. But that is not relevant to this case, since Bush did not try as soon as possible to regularize the situation, did not seem to recognize the need for legislation at all, and in fact resisted it as much as possible.)

[hilzoy]

Pedantic note 3: about emergencies: I think that if a President decides that it is an emergency and action must be taken, s/he has an absolute duty to recognize the gravity of what s/he is doing, be very very transparent about it, and be prepared to face legal charges if others believe they are warranted. Acting outside the law should always be at best a gamble, and when you think that it's an emergency and you have to, you throw yourself on the mercy of your constituents. If it was in fact an emergency and you did in fact have to act, they will understand. If not, them's the breaks.

Just to make it clear that I was not advocating some sort of unlimited executive prerogative.

[J Thomas]

I have no idea when the first reference is--it would depend on which nation you looked to.

Nathan Hale was hung as a spy, after a military trial, in 1776 (by British forces, but no one seems to have considered their actions improper.)

Well.

The third-category stuff is really only an issue after the Geneva Conventions. Before and after that, you have a tradition that you should let soldiers surrender and not kill them, because that makes it easier on the winners of wars as well as the losers. And it's OK to kill soldiers who work as spies and saboteurs out of uniform, because we want to discourage mixing up civilians with soldiers. Likewise, it's OK to kill civilians who work as spies and saboteurs because we want to discourage civilians from doing acts of war.

Hale was hanged as a spy after a trial in which it was shown he was a spy. A civilian caught doing the same things would have been treated about the same. Not a third category.

The geneva conventions say that you don't punish POWs for having shot at you, having laid IEDs or actual minefields, etc. It's perfectly acceptable to kill civilians for doing those things, after a trial and after at least 6 months in custody. POWs can be punished or killed for doing war crimes, but not for waging war. Civilians can be punished or killed for waging war when they aren't in an established army, not in a recognised uniform, etc. Again, no third category is required.

The geneva conventions say that you aren't allowed to torture POWs or civilians, either one. You aren't allowed to punish either of them without a trial. You aren't allowed to keep either secretly, and you must let them communicate -- write letters etc -- except for a special case involving spies. All of this seems to me to apply to iraq and afghanistan. There are two categories, soldiers and civilians. Both require trials before punishment. Neither may be tortured. Civilians may be punished for some things that are expected of soldiers. Al qaeda members captured in occupied afghanistan might be considered civilians and might be killed for murder or sabotage, after trials where they are shown the evidence against them and allowed to present their own evidence. No third category. If they are considered soldiers in afghanistan (as 90+% of them were in fact), then they get POW status. Otherwise they get civilian status and can get trials and punishment as civilians.

But what about al qaeda members captured in the USA? They are certainly not POWs. At the very least they are out of uniform. They are civilians, subject to prosecution as civilians for their crimes -- remember, things that soldiers do as a matter of course are crimes for civilians. Whatever crimes they've actually done they can be punished for. And they can be tried for conspiracy to commit crimes that they haven't actually gotten around to doing.

Nothing in the Geneva Conventions says there's a third class of people that it's OK to torture. In an occupation we can detain civilians for no particular reason, because we need to, but we can only do it secretly when they're spies and for a clear tactical necessity.

However, all of these clear lines are blurred in practice. In iraq the iraqi government tortures people a lot more painfully than we do, and we object. (They of course object to our perversions inflicted on prisoners.)

And when we capture a saudi citizen doing crimes in the usa, the geneva conventions aren't supposed to apply at all. It's the normal interaction between friendly governments. If we want to torture a saudi citizen and the saudi government doesn't mind, then who does the saudi citizen complain to? The saudis torture their own citizens a lot worse than we do. Did we secretly tell the saudi government about the suspected saudi terrorists we found, and they told us to go ahead and torture them? I wouldn't be surprised, but of course it wouldn't be good to release that story. Similarly with british and australian citizens -- those governments might have secretly agreed but they wouldn't want to make it public. Particularly if it turned out later that their citizens who we tortured weren't actually terrorists and didn't permanently disappear.

This third-category stuff looks like a red herring to me. The only thing it gets you that you don't have with 2 categories is you can claim the right to secretly and indefinitely hold and torture citizens of countries you aren't at war with. (And of countries you are at war with too.) (And american citizens.) You could do everything we need to do, without it. You can even torture and permanently disappear people without a third category, provided their own governments don't mind.

There are problems about world torture agreements, but nobody has to know. And there are problems about US law but nobody has to know. And of course there are problems about torturing and/or permanently disappearing US citizens but if it's OK with the US government then of course nobody has to know.

[Hartmut]

rilkefan, just for clarification: I am not calling for lynching anybody but for the appropriate legal process that (in theory) could end with somebody being sentenced.