[link|http://www.ohchr.org/english/law/prisonerwar.htm|Geneva Convention relative to the Treatment of Prisoners of War]

GENERAL PROVISIONS

Article 1

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

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. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

[...]

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

( a ) That of being commanded by a person responsible for his subordinates;

( b ) That of having a fixed distinctive sign recognizable at a distance;

( c ) That of carrying arms openly;

( d ) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

A war between states doesn't have to be legally declared for the Convention to be applicable.

However:

Articles 1 and 2:
What's a "High Contracting Party"? This document seems to be designed to govern conflicts between states, not between a state and a guerilla/terrorist organization.

Article 4:
A.1. Doesn't seem to apply to al Qaeda.
A.2. Comes very close, but conditions a-d aren't satisfied.
A.3. Doesn't apply.
A.4. Doesn't apply.
A.5. Doesn't apply.
A.6. Comes very close, but al Qaeda doesn't recognize the laws and customs of war.
B. Doesn't seem to apply.
C. Doesn't seem to apply.

The Convention on war prisoners would thus not seem to apply to al Qaeda. I think Rumsfeld has said as much. He has also said, however, that the protections outlined in the convention against torture, making them a public spectacle, etc., would be observed.

My personal view is that the intent of the Convention is to protect prisoners of military conflict of whatever stripe. (It's to protect people, not states.) The details of what legal options, etc., they have are also outlined in the Convention. It's not clear to me whether those should apply to a guerilla/terrorist organization the same way they apply to an organized army of a state. Some clearly should, but others are more dubious.

FWIW.

Cheers,
Scott.

[link|http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf|Here] - 25 page .pdf. It was a unanimous (3 judge) opinion:

p.4

LUTTIG, Circuit Judge:

Appellee Jose Padilla, a United States citizen, associated with forces hostile to the United States in Afghanistan and took up arms against United States forces in that country in our war against al Qaeda. Upon his escape to Pakistan from the battlefield in Afghanistan, Padilla was recruited, trained, funded, and equipped by al Qaeda leaders to continue prosecution of the war in the United States by blowing up apartment buildings in this country. Padilla flew to the United States on May 8, 2002, to begin carrying out his assignment, but was arrested by civilian law enforcement authorities upon his arrival at O\ufffdHare International Airport in Chicago.

p.6

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.

p.7-8

Al Qaeda operatives recruited Jose Padilla, a United States citizen, to train for jihad in Afghanistan in February 2000, while Padilla was on a religious pilgrimage to Saudi Arabia.[footnote 1] J.A. 18-19. Subsequently, Padilla met with al Qaeda operatives in Afghanistan, received explosives training in an al Qaeda affiliated camp, and served as an armed guard at what he understood to be a Taliban outpost. Id. at 19-20. When United States military operations began in Afghanistan, Padilla and other al Qaeda operatives moved from safehouse to safehouse to evade bombing or capture. Id. at 20. Padilla was, on the facts with which we are presented, \ufffdarmed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States.\ufffd Id. at 21.

Padilla eventually escaped to Pakistan, armed with an assault rifle. Id. at 20-21. Once in Pakistan, Padilla met with Khalid Sheikh Mohammad, a senior al Qaeda operations planner, who directed Padilla to travel to the United States for the purpose of blowing up apartment buildings, in continued prosecution of al Qaeda\ufffds war of terror against the United States. See id. at 22. After receiving further training, as well as cash, travel documents, and communication devices, Padilla flew to the United

--- begin footnote ---

[1] For purposes of Padilla\ufffds summary judgment motion, the parties have [link|http://dictionary.reference.com/search?q=stipulated|stipulated] to the facts as set forth by the government. J.A. 30-31. It is only on these facts that we consider whether the President has the authority to detain Padilla.

--- end footnote ---

States in order to carry out his accepted assignment. Id. at 22-
23.

Upon arrival at Chicago\ufffds O\ufffdHare International Airport on May 8, 2002, Padilla was detained by FBI agents, who interviewed and eventually arrested him pursuant to a material witness warrant issued by the district court for the Southern District of New York in conjunction with a grand jury investigation of the September 11 attacks. Id. at 93. Padilla was transported to New York, where he was held at a civilian correctional facility until, on June 9, 2002, the President designated him an \ufffdenemy combatant\ufffd against the United States and directed the Secretary of Defense to take him into military custody. Id. at 16, 94. Since his delivery into the custody of military authorities, Padilla has been detained at a naval brig in South Carolina. Id. at 162-63.

p.18-19:

2.

Padilla also argues, and the district court held, that Padilla\ufffds military detention is \ufffdneither necessary nor appropriate\ufffd because he is amenable to criminal prosecution. J.A. 172. Related to this argument, Padilla attempts to distinguish Quirin from his case on the grounds that he has simply been detained, unlike Haupt who was charged and tried in Quirin. Neither the argument nor the attempted distinction is convincing.

As to the fact that Padilla can be prosecuted, the availability of criminal process does not distinguish him from Hamdi. If the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi\ufffds detention would have been unnecessary and therefore unauthorized, since he too was detained in the United States and

-19-

amenable to criminal prosecution. We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place -- the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee\ufffds communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined \ufffd- impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security.

p.23-24:

4.

Finally, Padilla argues that, even if his detention is authorized by the AUMF, it is unlawful under Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In Milligan, the Supreme Court held that a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed. Id. at 6-7, 121. Milligan purported to restrict the power of Congress as well as the power of the President. Id. at 121-22 (\ufffd[N]o usage of war could sanction a military trial . . . for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . .\ufffd). Quirin, however, confirmed that Milligan does not extend to enemy combatants. As the Court in Quirin explained, the Milligan Court\ufffds reasoning had \ufffdparticular reference to the facts before it,\ufffd namely, that Milligan was not \ufffda part of or associated with the armed forces of the enemy.\ufffd See 317 U.S. at 45. The Hamdi plurality in turn reaffirmed this limitation on the reach of Milligan, emphasizing that Quirin, a unanimous opinion, \ufffdboth postdates and clarifies

-24-

Milligan.\ufffd 124 S. Ct. at 2643. Thus confined, Milligan is inapposite here because Padilla, unlike Milligan, associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.

There seems to me to be enough convincing evidence to hold him. For how long? That's a very good question....

I'm heartened that the courts seem to be carefully considering the issues involved in these cases. I think they made the right decision in this case.

Cheers,
Scott.

All talk of 'enemy combatant' is irrelevant as a nation cannot be at war with its own citizens.

Why not?

Recall the [link|http://en.wikipedia.org/wiki/American_Civil_War|US Civil War]:

Lincoln's victory in the presidential election of 1860 triggered South Carolina's secession from the Union. Lincoln was not even on the ballot in nine states in the South. Leaders in South Carolina had long been waiting for an event that might unite the South against the antislavery forces. Once the election returns were certain, a special South Carolina convention declared "that the Union now subsisting between South Carolina and other states under the name of the 'United States of America' is hereby dissolved." By February 1, 1861, six more Southern states had seceded. On February 7, the seven states adopted a provisional constitution for the Confederate States of America and established their capital at Montgomery, Alabama. The pre-war peace conference of 1861 met at Washington, D.C. The remaining southern states as yet remained in the Union. Several seceding states seized federal forts within their boundaries; President Buchanan made no military response.

Less than a month later, on March 4, 1861, Abraham Lincoln was sworn in as President of the United States. In his inaugural address, he argued that the Constitution was a more perfect union than the earlier Articles of Confederation and Perpetual Union, that it was a binding contract, and called the secession "legally void". He stated he had no intent to invade southern states, but would use force to maintain possession of federal property. His speech closed with a plea for restoration of the bonds of union. The South, particularly South Carolina, ignored the plea, and on April 12, the South fired upon the Federal troops stationed at Fort Sumter in Charleston, South Carolina until the troops surrendered.

A nation can certainly be at war against its own citizens.

Jose is a suspect of planning violent crimes at best and traitor at worst. In any case, the US Constitution means he gets charged in a timely manner.

Things are different when the military is involved. They have their own rules for their members (the [link|http://www.constitution.org/mil/ucmj19970615.htm|UCMJ], etc.). And the Geneva Convention discusses people who are [link|http://en.wikipedia.org/wiki/Enemy_combatant|combatants] - citizenship doesn't generally enter into the equation. What matters is whether they're lawful or unlawful combatants:

If there is any doubt as to whether the person is a lawful combatant they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue. Combatants who may be deemed to be unlawful combatants include, spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war (for example by fighting under a white flag).

Most unlawful combatants qualify for protection under the [link|http://en.wikipedia.org/wiki/Fourth_Geneva_Convention|Fourth Geneva Convention] (GCIV) until they have had a "fair and regular trial". Once found guilty at a regular trial, they can be punished under the civilian laws of the detaining power. The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Mercenary trial in Angola in June, 1976.

The US, after some prodding, set up the tribunals to determine whether people at Guantanamo were lawful or unlawful. I don't know if Padilla has had a similar tribunal hearing. Padilla would seem, based on what's public, to be an unlawful combatant. The rub is whether he fits in the "most" category. The 4th Geneva Convention is designed to protect civilians. It's hard to argue that he's a civilian in this circumstance.

It's not clear cut how Padilla's case should be handled legally if you feel that the Geneva Conventions and the Constitution are the most important rules. On the other hand, [link|http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR:|Senat Joint Resolution 23], signed by Bush on September 18, 2001, gives him power to:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Section 2a is pretty clear.

I expect that if Padilla appeals to the USSC, he will lose.

Those who want the Federal power to incarcerate US citizens this way to be restricted may have better luck in making sure that the details of SJ 23 are observed (e.g. the [link|http://www.cs.indiana.edu/statecraft/warpow.html|War Powers] restrictions).

Just so that I'm not misunderstood: I too am troubled by the thought of Padilla being held indefinitely without some sort of trial. But I do not think he has a right to a civilian court trail as he was not acting as a civilian. "But he's just a criminal," some say. I disagree. His legal status changed when SJ 23 was enacted - putting our government on a war footing.

IMO. IANAL. FWIW. YMMV.

Cheers,
Scott.