Supreme Ignorance: America’s Highest Court Disregards the Law of Land Warfare

News Abroad

Mr. Furnish, Ph.D., is an Acquisitions Editor for Praeger Security International and a recovering college professor. He tracks Islamic messianic and apocalyptic movements on his website www.mahdiwatch.org.

                  I’m neither a lawyer, nor play one on TV.  In fact, I hated law school so much, back during Reagan’s first term, that after one semester I dropped out and joined the Army, winding up in the 101st Airborne.  But while in the Army  I was trained as an Arabic interrogator, and part of that education included being made to learn Army FM 27-10, The Law of Land Warfare, which contains “authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land” derived from the  various Geneva Conventions (most notably those of 1929 and 1949), as well as the relevant Hague Conventions.  And then in post-enlisted military service I obtained a doctorate in Islamic history.  So the following commentary is that of a layman learned in matters relating to the war on Islamic terrorism, not a legal scholar. 

                  On June 12, 2008, the Supreme Court decided, 5-4, in Boumediene et al. v. Bush 1  that non-citizen “enemy combatants” held at Guantanamo “have the constitutional privilege of habeas corpus.” 2  This was the latest in a triad of Court rulings expanding the rights of "enemy combatants" captured in the global war on Islamic terrorism and constitutionally whacking the Bush Administration.  In Hamdi v. Rumsfeld (2004) 3, our highest court determined that an American citizen (born in  the U.S. but moved to Saudi Arabia as a child) captured in Afghanistan and held at the naval brig in Charleston, S.C., was entitled to the privilege of habeas corpus. Two years later, in Hamdan v. Rumseld, 4 the Supreme Court ruled 5-3 (Roberts taking no part, having been on the Circuit Court involved) in a case brought by Usama Bin Ladin’s driver and accomplice, a Yemeni citizen, that “the military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ 5 and the four Geneva Conventions signed in 1949.”

                  In Boumediene Justice Kennedy, writing for the others in the majority (Stevens, Souter, Ginsburg and Breyer), admits that “before today the Court has never held that noncitizens detained by our government in territory over which another country maintains de jure sovereignty have any rights under our Constitution,” but since “the cases before us lack any precise historical parallel…We hold that Art I, §9, cl. 2 of the Constitution has full effect at Guantanamo Bay.”  The majority claims that the Detainee Treatment Act (DTA), passed by Congress in 2005, doesn’t provide sufficient guarantees of such rights.  Kennedy goes on, seemingly in an attempt to throw a bone toward the other two branches of government, that “[o]ur holding…should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains the detainee’s habeas corpus petition.” The majority opinion continues extending this olive branch: “Unlike the President ... neither the members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain [emphases added] those who pose a real danger to our security.”  And Kennedy even claims that “our opinion does not undermine the Executive Power as Commander-in-Chief.”

                  Chief Justice Roberts, as well as Justice Scalia, wrote dissenting opinions on behalf of the four-person minority.  Both Roberts and Scalia accused the majority of “a constitutional bait-and-switch,” having in the Hamdi case provided guidelines for the Executive and Legislative branches to follow in crafting new mechanisms for judging enemy combatants—particularly the DTA—only to strike those down, as well.  The Chief Justice points out that detainees have a number of extraordinary rights already under DTA, including the right to a “Personal Representative” who can see, and summarize, CLASSIFIED info for them! Roberts also has the best line in this case: “The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas.” Scalia is even more scathing: “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander-in-Chief will make the war harder upon us. It will almost certainly cause more Americans to be killed.”  He notes that during World War II some 400,000 POWs were held in the U.S. and not one “was accorded the right to have his detention validated by a habeas corpus action in Federal court—and that despite the fact they were present on U.S. soil” and fumes  that  “petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction.”

                  Let me preface my critique of the Boumediene Gang of Five by confessing that I agree in essence with the Hamdi decision: an American citizen, no matter where captured or under what conditions, is entitled to know the charges being brought against him.  Furthermore, the Bush Administration should be faulted for clinging to the nonsensical (albeit perhaps legally valid) argument in both Hamdan and Boumediene that Guantanamo is not really under American jurisdiction.   That said, following are a number of criticisms of the Supremes’ reasoning in Boumediene  (as well as the other two cases) derived from points in The Law of Land Warfare (henceforth LLW).  I would welcome clarification of them from any of you legal eagles out there.

                  1) The status of captured alleged terrorists really is the crux of the matter. Rather than wasting time with the fiction that Gitmo isn’t really American soil, the better argument—one that should have started when the first C-5A full of bearded gents captured in Afghanistan hit the Gitmo tarmac—would have been that alleged terrorists are neither  prisoners-of-war (POWs) nor  even “enemy combatants” but simply “guerrillas, partisans, spies” or “saboteurs.”   POWs are defined as  being “members of the armed forces of a Party to the conflict,” “having a fixed distinctive sign recognizable at a distance” who are “carrying arms openly and “conducting their operations in accordance with the laws and customs of war.” 6   Al-Qa`idah members, or members of other terrorist groups, do not fit these characteristics.  Furthermore, “members of militias or volunteer corps…lose their right to be treated as prisoners of war whenever they deliberately conceal their status,” and “A person can…be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.” 7  Penalty for spying? “The spy is punishable with death whether or not he succeeds in obtaining information or in conveying it to the enemy.”8   Also subject to the death penalty is “Any person who-- (1) aids or attempts to aid, the enemy with arms, ammunition, supplies, money or other things.” 9  In addition to spies and aiders and abettors, “[P]ersons , such as guerrillas and partisans, who take up arms and commit hostile acts without having complied with the laws of wars for recognition as belligerents…are, when captured by the injured party, not [emphasis added] entitled to be treated as prisoners of war and may be tried and sentenced to imprisonment or execution.” 10  Also, anyone who “commit[s] hostile acts about or behind the lines of the enemy are not to be treated as prisoners of war and may  be tried and sentenced to imprisonment or execution.  Such acts include, but are not limited to, sabotage, destruction of communication facilities, intentional misleading of troops…liberation of prisoners of war, and other acts….” 11    Most, if not all of these points, could apply to members of terrorist groups captured in Afghanistan, Iraq, and elsewhere.  The Bush Administration should perhaps have been finding ways to have the Combatant Status Review Tribunals adjudge the likes of Hamdan as non-POWS/non-enemy combatants, rather than wasting time with the argument that Gitmo resembles Scotland before total union with the British crown. 

                  2) As many have remarked, the Manichaean cleavage regarding the war on Islamic terrorism is this: on one side, those who see it primarily as an actual war (neocons, Bush, McCain, much of the GOP) and those who see it as a police/criminal justice matter (Kerry, Obama, the Democrat Congress).  Five members of the Supreme  Court have demonstrated yet again they fall in the latter camp: “The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security” (Boumediene); “information used to convict a person of a crime must be disclosed to him” (Hamdan); “even assuming that Hamden [sic] is a dangerous individual…the Executive must nevertheless comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.”

                  3) Speaking of Hamdan, the majority said there that the petitioner could not be tried for conspiracy—even for plotting with, and helping, UBL riding in the backseat—and even if he could, conspiracy was not a crime under international law. Besides being a variation of the Bart Simpson defense (“I didn’t do it, no one saw me do it, you can’t prove anything”), this flies in the face of LLW, which states that “[c]onspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.” 12  Interestingly, “enemy personnel charged with war crimes are tried directly under international law without recourse to the statues of the United States.” 13  (Can someone apprise Justice Kennedy, et al., of this?)   

What constitutes war crimes, you ask? “Grave breaches” of the 1949 Geneva Convention statutes, including “wilful killing, torture of inhuman treatment…wilfully causing great suffering or serious injury to body or health…not justified by military necessity,” specifically “maltreatment of dead bodies”—such as setting aflame dead American contractors—“firing on localities which are undefended and without military significance”—like the World Trade Centers—“use of civilian clothing by  troops to conceal their military character,” etc. 14

Five members of the Supreme Court of the United States of American have adopted the position that non-citizen individuals accused of, in effect, war crimes should have the habeas corpus protections of American citizens in criminal proceedings. Could someone offer a non-politicized, rational defense of that position?

                  4) I see at least three military and intelligence ramifications that might follow from Boumediene:

                  a) al-Qa`idah and its ilk will start ordering their operatives to get captured by American forces in order to wind up at Gitmo (or whatever facility, in whatever location—if any--replaces it in the Obama Administration) and start filing petitions, in order to smoke out American intelligence sources and methods via those Personal Representatives the Supreme Court majority is so fond of.

                  b) American commanders will be more likely to find a way to steer captured alleged terrorists away from detention on American soil, because of what even the Gang of Five admits will be  the growing “burden habeas corpus proceedings will place on the military.” 15  Rendition will be back, and the captured will find it increasingly likely they’ll wind up in Egypt, Jordan or Saudi Arabia, far outside the reach of clueless, benevolent old men (and women) in black robes and well within the reach of malevolent Muslim interrogators in, well, black robes.

                  c) Contra Justice Scalia’s fear that this decision will result in more American soldiers being killed, I think it equally likely that it will result in more Muslim terrorism suspects getting killed—since field commanders and even the Privates humping out in harm’s way as 11Bs (infantrymen) will be more prone to shoot first, handcuff later.  I sure as hell would.

                  5) In their rush to extend the umbrella protection of the American Constitution to its (and our) avowed enemies, five Supreme Court Justices seem blissfully, and dangerously, unaware of some of the most basic beliefs of the jihadist wing of Islam, such as:

                  a) treaties with dhimmis (Jews and Christians) may be broken at will

                  b) methods of fighting that would be deeded war crimes under Western formulations of international law (such as the sainted Geneva Convention) are perfectly acceptable when fighting against non-Muslims

                  c) cease-fires and truces with non-Muslims can be violated at will in jihad.16

                  6) Finally, a Constitutional question: the Suspension clause, to reiterate, states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  I know that in 1866 the Supreme Court ruled in Ex parte Milligan that only if civilian courts were shut down could habeas corpus be dispensed with.  But cannot a legitimate legal case be made today that we have been invaded—going back at least to 1993, the first World Trade Center bombing-- and that public safety does require  that those accused of working with and supporting the invaders are not entitled to rights under a legal document which they hope to replace with their extremist religious law? 


2 Habeas corpus is, for us non-lawyers, short for habeas corpus ad subjiciendum, “a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, or person detained….the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent” (Black’s Law Dictionary, 5th edition, 1979, p. 638).  The topic is covered in Article I, §9, clause 2 of the U.S. Constitution: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This is also referred to in legal circles as the “Suspension Clause.”


4 http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf

5 Uniform Code of Military Justice.

6LLW, Chapter 3, “Prisoners of War Defined,” p. 25.

7 Ibid., “Persons Not Entitled To Be Treated as Prisoners of War,” p. 31.

8 Ibid., p. 33.

9Ibid., p. 33.

10 Ibid., p. 34.

11 Ibid.

12Ibid., Chapter 8, “Remedies for Violation of International Law; War Crimes,” p. 178.

13 Ibid., 180-81.

14Ibid., pp. 179-80. 

15 Boumediene v. Bush, majority opinion.

16 See E. Kohlberg, “The Development of the Imami Shi`I Doc trine of Jihad,” Zeitschrift der Deutschen Morgenländischen Gesellschaft, 126, 1 (1976), pp. 64-48, as well as http://ianlivingston.com/threatmatrix/handbook/wmd_fatwa.htm

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Andrew D. Todd - 8/12/2008

The whole sense of Chapter 3 of the Rules of Land Warfare is restrictive. It seeks to narrow down the range of persons who do not qualify for one category of protection or another. Hence the references to Irregular Militias, Levees-en-Masse, etc. The hard case of the spy, saboteur, partisan, etc., is that of someone who represents himself as a member of a protected category, but is actually an enemy, giving him an unfair advantage. The partisan is allowed to shoot the regular soldier, but, unless the regular soldier discovers the partisan's true identity or character in time, the regular soldier isn't allowed to shoot the partisan. However, this kind of reasoning only applies to someone who abuses immunity. You ignore the whole sense of the chapter, take out a few sentences, and stretch their meaning outwards, obviously beyond what was intended. It is as if you were seeking for a formula saying in effect that the inhabitants of Afghanistan, having the economy of a backwards country, were not entitled to a means of lawful resistance, and therefore they would be war criminals if they did not immediately surrender.

As I said, my reasoning runs that at the time of the American invasion, the detainees had become de-facto Afghan nationals, bearing in mind that Afghanistan was a more or less neo-feudal state, with individuals bearing direct loyalty to warlords, etc. This of course included the obligation to render military service. One has to make reasonable allowance for different social systems. You don't want to get in the position of saying that a man rightfully wearing the distinctive regalia of a Southern Cheyenne Dog Soldier is fighting out of uniform, just because he doesn't dress like a European. That said, the Law of Land Warfare envisions things like Levee-en-Masse. The standard of concealment has to take account of the "khaki revolution." About 1900, the armies of the world stopped wearing costumes of red, royal blue, white, etc., and changed to various muddy greens and browns. During the Second World War, they began to adopt various foliage patterns, so that even the fairly minimal distinction between Feldgrau and Olive Drab vanished. These new "jungle rags" were so obviously disreputable that, for some years, they were commonly not allowed to be worn in garrison, only in the field.

Bin Laden's assorted followers in Afghanistan were no more various than the various refugee forces which collected in France and then in Britain in 1939-40. Apart from the well-known contingents in Britain after Dunkirk, such as the Free French and the Poles ("General Sikorski's Tourists"), there were assorted other nationalities, including even Belgians, who were there in defiance of the direct orders of their government, and who did not receive a pardon for this "treason" until 1948. (See Andrew Mollo, The Armed Forces of World War II: Uniforms, Insignia, and Organization, 1981. Mollo provides a photograph (p. 39) of King Haakon of Norway reviewing Norwegian sailors in exile. One man of about ten is still in Norwegian uniform, doubtless his last set, donned for the occasion of the King's visit. The others are in British kit, including rank badges.) The effect of this is that, in calling the detainees partisans, you are holding them to artificially high standards of uniform, and doing so on terms which you would not apply to forces friendly to the Unites States.

Now, if fire starts coming from a slit in the ground four hundred yards away, it is immaterial what uniforms the men in the concealed bunker are wearing. American soldiers, under those circumstances, would call an airstrike, and the concealed enemy would derive no advantage from his costume. If necessary, I believe I can produce a sufficiency of U. S. Army manuals instructing the ordinary soldier in how to camouflage a bunker, both from ground and air observation. I have in front of me a "Soldier's Manual of Common Tasks," dated 1985, which instructs the soldier to build, time permitting, a camouflaged, roofed bunker with firing ports and grenade traps, and further to position and use the Claymore Mine. The manual also provides instruction in the techniques of stealthy movement.

A short note concerning the actual distinctiveness of Afghan civil dress, more or less comparable to the variety of Scottish plaids. A knowledgeable observer would be able to identify the wearer's tribal identity at sight, and, knowing the tribe's political affiliation, proceed from there.


Tim R. Furnish - 7/24/2008

Mr. Turner,
I am trying to figure out the point of your long and winding post. Are you accusing me of lying and/or hiding something? The short bio blurb is there because 1) Rich Shenkman, editor of HNN, put it there, and 2) I suggested such a short, pithy bio blurb so as not to bore readers and/or appear egocentric.
Yes, the LC-MS (the church I belong to) calls itself "evangelical," meaning "willing to share the Gospel"--the original meaning of the word. However, in modern parlance and media usage, hence the public understanding therof, the word "evangelical" has come to mean someone of a Protestant, Reformed, very conservative persuasion, bordering on "fundamentalist." Like I tell folks, I'm a C.S. Lewis Christian, a man who said "the Bible is all true--but that doesn't mean it's all LITERALLY true." That's what separates conservative, evangelical Lutherans from the Southern Baptists and other EVANGELICALS of the world. Here's another way to put: if you have altar calls at the end of service, you're "EVANGELICAL." If you don't, like us, you're "evangalical." Does that help?
Any in any event--what in bloody blazes does this have to do with my argument that the Supremes failed to consult the Law of Land Warfare in the Boumediene case?!?

Tim R. Furnish - 7/24/2008

I'm curious as to how you arrive at the conclusion that "most of the detainees were...members of the de facto Afghan army." THAT strikes me as contrived.
I simply read through what seemed to me relevant portions of the LLW and noted where the U.S. Supreme Court seemed to be ignoring/violating what it said. I don't quite understand how such a straightforward (and admittedly non-legal-expert) approach is "contrived." I posed honest questions.

Kenneth E Turner - 7/22/2008

Dr. Furnish: why have you opted for a bio gloss? Why isn't there an obvious, web searchable C.V. linked to your name?

"4 1/2 years enlisted in Army Intelligence (Arabic linguist/interrogator), following college (it paid off my student loans) in the mid-80s. In the late-90s I was commissioned as a chaplain candidate in the Army while I was doing my doctorate at Ohio State, since I had also obtained an M.A. from Concordia Seminary. But when it came to finishing my dissertation or doing chaplaincy full-time, I opted for the former and in fact I was just discharged as an O-3 (Captain) a few months ago."


Given you chosen field of study, Wouldn't it be appropriate to also clearly state you religious perspective, as it would tend to bias you8r world view?

"I am a Christian (of the traditionalist/conservative, not evangelical or 'fundamentalist,' persuasion)."


Even that is fuzzed far too much for any real usage in attempting to understand possible prejudices. Is it to assume, that since you got your M.A. from Concordia Seminary, that the Christian sect you are a member of is Lutheran, Missouri synod? You claim that you are not evangelical, yet the Conciordia Seminary website states that it is "both Lutheran and evangelical". Are you dancing with the truth. Martin Luther was assuredly opposed to antinomianism.


Full disclosure of potential biases is a very important part of anyone seeking to achieve honest acclaim in you academic field of endeavour, given contemporary circumstances. Let me restate a few I believe should be transparent. You received a M.A. from an evangelical Lutheran Seminary associated with the Missouri Synod. Prior to that you were an Arabic linguist/interrogator with the 101st Airborne. There, that wasn't so difficult was it?

I am quite willing to base the rest of my comments upon the following: I am a native born American, former Army conscript medic, who served C.O. as a chopper doc one tour in Vietnam, and who now feels compelled to stand for honour, because of a long-ago freely sworn oath to defend against ALL enemies, foreign and domestic. Have I made myself clear, Captain, SIR?

I asset the following, predicated upon my birthrights as a Native Born American; the opinions of Nine Black-Satin Robe fetishists, notwithstanding. This, I claim as my birthright, because it delves deeply into the realm of Natural Rights, which are secured in MY possession, and are by definition, universal human rights. This is only my personal read. Again, am I making myself clear, Captain, SIR?

US Con. Art. VI; clause 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The Geneva Convention relative to the Treatment of Prisoners of War (GenConv) is a treaty which was "made, under the Authority of the United States". That treaty cannot be abrogated after hostilities have been initiated. The date applicable to this analysis is September 11, 2001. The GenConv is "The Supreme Law Of The Land".

The GenConv Art. 4(A) list six separate categories of persons "who have fallen into the power of the enemy" as POWs. Art. 4(B) lists an additional two categories of persons who "shall likewise be treated as prisoners of war". Art. 5; par 2, in its entirety states:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

The President, by his finding alone, cannot be in any shape of form considered to be a "competent tribunal". The "unlawful combatant" determination is a violation t=of The GenConv; therefore, it is a Constitutional violation also. the president does not exist outside the strictures of the only document which confers legitimacy to his every action. He is NOT ABOVE THE LAW.

Even so, the very moment these detainees were stripped of their GenvConv protections, and held as "unlawful combatants"; the U.S. government was detaining them as criminal actors, and at that moment, Constitutional text controls.

US Con; Amendments; Article XIII; Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Surely you cannot be asserting that a US Military base, not under direct threat of being overrun by an enemy force is a place that is not subject to the US Government's jurisdiction? that is an absurdity. Again, I care nothing about previous Supreme Court case law. I stand for natural liberty and in defense of The Constitution. The Fifth amendment assuredly applies to these humans who have been detained indefinitely without presentment of charges and public trial, which adhered to due process of law. the Fifth and the sixth Amendments to the US Constitution are applicable to them.

The Constitution IS NOT the source of the people's liberty. That source was clearly stated at The Nation's very foundation:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

The term "their Creator" is subjective, and only possesses a local relevancy to each and every human being in the universe. This is the fount from which Natural Liberty flows. the constitution is a limiting framework for our government. It restrains is legitimate actions, and these limitations, when related to natural rights, ARE NOT bounded by citizenry.

For duty to an oath freely sworn, and for personal honour, I now stand in defense of The Constitution, against all enemies, foreign and domestic. Pray tell me Captain, SIR; are you friend or foe?

Oscar Chamberlain - 6/24/2008

What new law? That the courts are a refuge in which to invoke habeus corpus was well established before the revolution. The constitution itself makes clear the important of habeus corpus.

There is no right without redress. If a person cannot go to the courts when faced with imprisonment without trial, whether it was ordered by the executive or the legislative branch, where else can he turn?

Finally, the executive branch and the legislative branches share war powers. It may be inconvenient or even unwise in today's world, but that is the clear, original intent. Presidential power is not absolute in the waging of war.

Andrew D. Todd - 6/24/2008

I am not a lawyer, either, but I find your argument about the status of the detainees to be rather contrived. Here are some abstracts from the Law of Land Warfare, together with my comments.

U.S. Army's Field Manual 27-10, The Law of Land Warfare

"Chapter 3, Prisoners of War..."

[included categories]

"61.A.2. Members of other militias and members of other volunteer corps, including those of organized resistance movements... fulfill the following conditions.... b. that of having a fixed distinctive sign recognizable at a distance;"

[ADT: Large sections of American forces do not meet this requirement, for example, all submarine crews, aircraft fitted for radar jamming, special forces, etc. This is a somewhat dated concept, from the time when solders wore bright red or blue coats, and marched, goose-stepping, to a range of fifty yards, with fife and drum music, at which point their aristocratic officers might do an Alphonse-and-Gaston routine about who was to fire first. It is of problematic application in a regime where weapons are normally deadly at the full range of visibility (say a thousand yards for a medium machine gun), and camouflage is indispensable.]

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

"63. Commandos and Airborne Troops. Commando forces and airborne troops, although operating by highly trained methods of surprise and violent combat, are entitled, as long as they are members of the organized armed forces of the enemy and wear uniform, to be treated as prisoners of war upon capture, even if they operate singly."

"65. The Levée en Masse. If the enemy approaches an area for the purpose of seizing it, the inhabitants, if they defend it, are entitled to the rights of regular combatants as a levée en masse (see GPW, art. 4, par. A (6); par. 61 herein), although they wear no distinctive sign. In such a case all the inhabitants of the area may be considered legitimate enemies until the area is taken. Should some inhabitants of a locality thus take part in its defense, it might be justifiable to treat all the males of military age as prisoners of war. Even if inhabitants who formed the levée en masse lay down their arms and return to their normal activities, they may be made prisoners of war."

"74. Necessity of Uniform. Members of the armed forces of a party to the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to be treated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military lines of the enemy for the purpose of gathering military information or for the purpose of waging war by destruction of life or property."

[ADT: I suggest that to lose the character of an authorized combatant on account of concealment, one would have to actively impersonate a civilian noncombatant, that is, to claim protection from the occupying forces. An example would be the Vietnamese peasant (Viet Cong Infrastructure) with a machine gun concealed in his hut, and a forged paper exempting him from service in the ARVN. Merely striving for invisibility would not meet the requirement, because all soldiers do that. Practically speaking, an invading army simply does not have time to root out bona fide guerrillas in the hills until it has done things like establishing a puppet government. Captured Viet Cong did not come within the scope of the Supreme Court, because they were more or less promptly handed over to the South Vietnamese government. More precisely, an American unit would usually provide security while the South Vietnamese decided who they wanted to detain. The well-known confrontation between LTC Anthony Herbert and COL Ross Franklin involved Vietnamese detainees who had been handed over, in the field, to a detachment of the LLDB, the South Vietnamese secret police/paramilitary. The vast majority of the Guantanamo detainees wound up in Cuba precisely because they were not in fact guerrillas. They were, at most, captured in open battle during the invasion of Afghanistan (up to and including Tora Bora), at a time when no adequate detention facilities existed in Afghanistan. This was at a time when very few American ground forces were in place, and Special Forces were still directing American air power in conjunction with native militias. A considerable portion of the detainees were alleged fugitives, brought in by bounty hunters. The sections pertaining to escapes are relevant for the general light they shed on the subject of fugitives.]

"167. Successful Escape. The escape of a prisoner of war shall be deemed to have succeeded when:
(1) he has joined the armed forces of the Power on which he depends, or those of an allied Power;
(2) he has left the territory under the control of the Detaining Power, or of an ally of the said Power;
(3) he has joined a ship flying the flag of the Power on which he depends, or of an allied Power, in the territorial waters of the Detaining Power, the said ship not being under the control of the last named Power.
Prisoners of war who have made good their escape in the sense of this Article and who are recaptured, shall not be liable to any punishment in respect of their previous escape. (GPW, art. 91.)"

"168. Unsuccessful Escape. A prisoner of war who attempts to escape and is recaptured before having made good his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated offense. A prisoner of war who is recaptured shall be handed over without delay to the competent military authority. Article 88, fourth paragraph, notwithstanding, prisoners of war punished as a result of an unsuccessful escape may be subjected to special surveillance. Such surveillance must not affect the state of their health, must be undergone in a prisoner of war camp, and must not entail the suppression of any of the safeguards granted them by the present Convention. (GPW, art. 92.)"

"169. Connected Offenses. Escape or attempt to escape, even if it is a repeated offense, shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offense committed during his escape or attempt to escape. In conformity with the principle stated in Article 83, offenses committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offenses against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary punishment only. Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only. (GPW, art. 93.)"

[ADT: The provisions pertaining to escaped POW's make clear that they do not lose their immunity by concealment for the purpose of escape, even if the ultimate purpose of the escape is to rejoin their own forces. To lose the rights of lawful combatants, the concealment has to be for the specific and immediate purpose of conducting hostilities.The very existence of Schloss Colditz, the German Second World War POW camp for escape specialists, is a sufficient testament to the recognition of the right of escape. Obviously, this right must apply with much greater force to someone who has never surrendered.]

"77. Employment of Spies Lawful. The foregoing Article 29, HR (par. 75), and Article 24, HR (par. 48), tacitly recognize the well-established right of belligerents to employ spies and other secret agents for obtaining information of the enemy. Resort to that practice involves no offense against international law. Spies are punished, not as violators of the laws of war, but to render that method of obtaining information as dangerous, difficult, and ineffective as possible."

"78.c. Punishment... Immunity upon Rejoining Own Army. 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. (HR, art. 31.)"

[ADT: It is a fair inference that similar arguments would apply to guerrillas, etc. As a peripheral observation, no one shuns Regular Army officers who may have been involved with guerrillas. On the contrary, they are often highly regarded, for example, LTG William Peers, who spent the Second World War doing OSS stuff in Burma, and who was later chosen to investigate My Lai. Shunning is reserved for people who do things like harming noncombatants.]

I think one can reasonably argue that, given the prevailing customs of the country, rather less formal than ours, virtually all of the detainees were at least naturalized Afghan nationals. That is, the de-facto pre-existing government, the Taliban regime, would not have expressed any objection to their settling down to pursue peaceful occupations, or would, if asked, have taken them into its service. Further, it seems fairly clear that the vast majority of the detainees are in fact Middle Eastern or Central Asian peasants, that such people did not have the kinds of education or experience which would have rendered them useful to someone planning operations in Europe or North America. The evidence seems to be that only a tiny circle around Bin Laden, especially his disbursing officer, had any kind of "need to know" for operations in Europe or North America. These gentlemen have taken some pains not to be captured alive, and have therefore vanished into Pakistan's tribal areas, what used to be called the Northwest Frontier.

Once the detainees were in Guantanamo, it seems that they were used as pawns in a program of intelligence fabrication. Government interrogators made up terrorist plots from the whole cloth, with a view to terrifying the American people, and getting them to accept a dictatorship. The prisoners were then coerced and/or tortured into parroting stories of plots, for some considerable time after they had ceased having access to the outside world. This was never very credible. Obviously, after the first few weeks, any terrorist at large in Europe or North America would have decided to shift to plans which he had never talked about with the important people in Afghanistan, let alone the peasants. Eventually, the "boy crying wolf" principle came to operate. It was generally recognized that whenever President Bush fell into political difficulties, there would be a terror alert, allegedly based on some secret information from the detainees at Guantanamo.

Most of the detainees were, within reasonable limits, members of the de-facto Afghan army, and therefore, became POW's. On capture, they were treated in a manner violative of both the laws of war, and the criminal laws of any civilized state, and the Administration was therefore forced to invent new legal categories for them. Your basic problem is that you are trying to make the act of fighting against American forces invading Afghanistan, by people who never owed allegiance to the United States, into a crime in its own right, and to this end, you are grasping at technicalities, or rather, grasping at straws. Any definition of POW status, which you formulate, has to account for the punishments meted out to various German and Japanese generals in 1945, for such offenses as carrying out the Commando Order, and it has to explain why Charles De Gaule was not an unlawful combatant. Otherwise, your argument is nothing more than special pleading, and your arguments amount to nothing more than "vae victis."

Julie Krauss - 6/23/2008

Unfortunately, this Supreme Court "has no sense of balance in regard to its own powers."

It's supposed to decide whether EXISTING laws are acceptable under the Constitution /*precisely as that instrument was written*/. It is NOT authorized to MAKE NEW LAW, not even under the rubric of "interpretation."

As for "upholding checks and balances," most Congressmen apparently abhor same.

What we have here is a free-for-all with all three branches wanting to be Top Dog. Of the three, however, it is the Executive Branch under President Bush who appears to have the best fix on the importance of national defense...in the absence of which, discussions of Checks and Balances and Constitutional Powers will all be rendered moot.

Oscar Chamberlain - 6/23/2008

Ex parte Milligan means specifically that even if there is a war, and even if invasion is a real possibility or even occuring, the courts have jurisdction over judicial matters unless they are shut down.

Moving up to your key division of strategies into military versus judicial, the "Manichean Cleavage" (nice phrase by the way) is a false choice. Practically speaking, both sides envision a mixture.

The true question is, in a conflict of this nature, what mixture of approaches best balances our values and our security.

Now that is a tough question. It has been made harder by a president who did not pursue presidential power in order to respond to an emergency but who used the emergency to expand presidential power by envoking again and again the president's power as commander-in-chief.

This has been disastrous. For the sake of what is left of our democracy, one pretty much has to support any action by Congress or the Supreme Court that upholds checks and balances, simply because this president has no sense of balance in regard to his own powers.