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Post by Nathan Morrison on Sept 7, 2006 16:04:45 GMT -5
As I understand it, the Constitution set up 3 branches of Government... The lawmakers have declared the use of torture not only with specific legislation, but BY SIGNING AND RATIFYING the Geneva Convention Accords. The Supreme Court, the body set up to determine the validity of those laws in contrast to the constitution, has UPHELD these torutre bans, and Bush defies them anyway.... What is it that he doesn't understand about going back to the congress won't work. Not only have both branches spoken on this issue, BUT also CongressCANNOT write valid legislation contrary to the constitution and Geneva! pardon me while I continue to scream in private about this link: www.npr.org/templates/story/story.php?storyId=5780561&ft=1&f=1012RAAARRRGH!
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Post by realdre on Sept 7, 2006 17:48:24 GMT -5
Not this again...Ive already explained why the Conventions dont count on US soil....Gitmo technically is US soil by way of a deal reached with Cuba.
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Post by Nathan Morrison on Sept 7, 2006 18:17:03 GMT -5
Not this again...Ive already explained why the Conventions dont count on US soil....Gitmo technically is US soil by way of a deal reached with Cuba. Dre, and I've explained to you, that the Geneva Conventions ARE US LAW, and are included as such in the Constitution itself. You know this. What exactly about being listed in the Constitution, Ratified and signed, don't you quite understand about the US Law part of Geneva? LOL LOL Geneva FULLY APPLIES not oly on US soil, but on the soil and waters of the entire globe. It was voted as INTERNATIONAL LAW, and ratified into US law, legally and validly. Period. I'm sorry that you don't like it, but it's law nonetheless LOL
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Post by realdre on Sept 7, 2006 18:25:12 GMT -5
With all due respect that is your interpretation of the US Constitution eventhough it is not what it specifically states with regard to international treaties...the GC is completely optional it is not Supreme Law of the Land....
If Geneva fully applies on US Soil then do we really need the US Constitution? Would it not matter if we got rid of some constitutional rights because hey we have the Geneva C as a back up....??
You know as well as I no one would go for that...not even you. LOL. And that tells me if it was that strong and really had any weight it would not matter, but it does matter and with good reason the GC is for all intensive purposes optional.
There is nothing stopping this government from not recognizing and international agreement...
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Post by Nathan Morrison on Sept 7, 2006 18:50:52 GMT -5
With all due respect that is your interpretation of the US Constitution eventhough it is not what it specifically states with regard to international treaties...the GC is completely optional it is not Supreme Law of the Land....If Geneva fully applies on US Soil then do we really need the US Constitution? Would it not matter if we got rid of some constitutional rights because hey we have the Geneva C as a back up....?? You know as well as I no one would go for that...not even you. LOL. And that tells me if it was that strong and really had any weight it would not matter, but it does matter and with good reason the GC is for all intensive purposes optional. There is nothing stopping this government from not recognizing and international agreement... Dre, that's just ridiculous. I challenge you to find where it says in the Geneva Conventions that they are 'optional' LOL To get right down to the point for clarity: From the US Constitution: Article. VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; AND ALL TREATIES (which includes Geneva) 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.
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Post by realdre on Sept 7, 2006 20:27:31 GMT -5
In theory the Conventions are optional my good friend it does not have to state this fact in the GC themselves they describe more of an optional international system of war etiquette rather than an enforced standard of protocol. However, under United States constitutional law, only a treaty that has achieved advice and consent of two-thirds of the Senate present is properly designated as a "treaty." If, instead, the President presents a negotiated instrument to the whole Congress for majority approval, the agreement is typically called a congressional-executive agreement." For example, the North American Free Trade Agreement (NAFTA) and most other U.S. trade agreements are executive agreements. Treaties are not necessarily permanently binding upon the signatory parties. As obligations in international law are traditionally viewed as arising only from the consent of states. There are several reasons an otherwise valid and agreed upon treaty may be rejected as a binding international agreement, most of which involve errors at the formation of the treaty. In the United States, the term "treaty" is used in a more restricted legal sense than in international law. U.S. law distinguishes what it calls treaties from treaty executive agreements, congressional-executive agreements, and sole executive agreements. All four classes are equally treaties under international law; they are distinct only from the perspective of internal American law. The distinctions are primarily concerning their method of ratification. Where treaties require advice and consent by 2/3rds of the Senate, sole executive agreements may be executed by the President acting alone. Some treaties grant the President the authority to fill in the gaps with executive agreements, rather than additional treaties or protocols. And finally, Congressional executive agreements require majority approval by both the House and the Senate, either before or after the treaty is signed by the President. Currently, international agreements are executed by executive agreement rather than treaties at a rate of 10:1. Despite the relative ease of executive agreements, the President still often chooses to pursue the formal treaty process over an executive agreement in order to gain Congressional support on matters that require the Congress to pass implementing legislation or appropriate funds, and those agreements that impose long-term, complex legal obligations on the U.S. In 1882, U.S. President Chester Arthur signed the treaty, making the U.S. the 32nd nation to do so. The U.S. Senate ratified it shortly thereafter. The second Geneva Convention in 1907 extended protection to wounded armed forces at sea and to shipwreck victims. The third convention in 1929 detailed the humane treatment of prisoners of war. The fourth convention in 1949 revised the previous conventions and addressed the rights of civilians in times of war. However, a signature does not bind a nation to the treaty unless the document has also been ratified by that nation (in the U.S., Congress ratifies such treaties). thomas.loc.gov/cgi-bin/query/Z?r104:H29JY6-206:The United States ratified the Conventions in 1955. However, Congress has never passed implementing legislation. The Conventions state that signatory countries are to enact penal legislation punishing what are called grave breaches, actions such as the deliberate killing of prisoners of war, the subjecting of prisoners to biological experiments, the willful infliction of great suffering or serious injury on civilians in occupied territory. While offenses covering grave breaches can in certain instances be prosecutable under present Federal law, even if they occur overseas, there are a great number of instances in which no prosecution is possible. Such nonprosecutable crimes might include situations where American prisoners of war are killed, or forced to serve in the Army of their captors, or American doctors on missions of mercy in foreign war zones are kidnapped or murdered. War crimes are not a thing of the past, and Americans can all too easily fall victim to them. The United States is a party to the four Geneva Conventions, but has not ratified the two Additional Protocols. The United States refuses to ratify Protocol I because it claims the protocol will legitimize groups involved in wars of national liberation. Although the United States has not ratified Protocol I, it has indicated that most of its provisions are incorporated into customary international law. The United States also decided not to ratify Protocol II, fearing that it might enhance the status of rebels, even though there was little objection by the U.S. military to ratification of this protocol. Without the Additional Protocols, recent conflicts in Bosnia and Herzegovina, Sierra Leone, and the Democratic Republic of the Congo might not have been covered by humanitarian law.
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Post by realdre on Sept 7, 2006 20:35:18 GMT -5
Furthermore, of why youre UN is broken...
Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the "Uniting for Peace" resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permanent member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions.
They can also be raised in the Security Council. The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions.
Under the Third Geneva Convention a fighter or belligerent in an international armed conflict who wanted lawful combatant status (and therefore prisoner of war status if captured), would have to meet certain criteria including:
(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." (From Article 4)
Lawful combatants are accorded "combatant's privilege," whereby they are exempted from the ordinary criminal law of the place they are fighting in. This means that they cannot be tried for murder, for example, for killing soldiers of the opposing side. Prisoners of war are accorded this privilege in the event they are charged with crimes after capture. They may be tried for war crimes, such as murdering civilians or torture, but not acts of violence in accordance with the laws and customs of war such as killing or capturing enemy soldiers or damaging military property.
The 1979 First Protocol Additional to the Geneva Conventions (Protocol 1) seeks, among other things, to effectively bring legal combatant status to forces not adhering to the uniform and certain other regulations of the Hague and Geneva Conventions, which arguably can include those some may consider terrorists.
The definition of an "international armed conflict" would include "armed conflicts in which peoples are fighting against colonial domination and alien [foreign] occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."
Guess what terrorists do not fit under the UN definition upon whos is protected, nor did the US ratify the last two provisions of the Geneva Conventions back in 1977.
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Post by realdre on Sept 7, 2006 20:46:31 GMT -5
* Article 4 covers all conflicts not covered by Article 3 which are all conflicts of an international character. It defines prisoners of war to include: o 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces o 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions: + that of being commanded by a person responsible for his subordinates; + that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I); + that of carrying arms openly; + that of conducting their operations in accordance with the laws and customs of war. o 4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. o 4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support. o 4.1.5 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. o 4.1.6 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. o 4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
* Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt as to whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.
The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the Bush Administration's interpretation of "unlawful combatants". The phrase "unlawful combatants", although not appearing in the Convention itself, has been used since at least the 1940s to describe prisoners not subject to the protections of the Convention.
Because many of the guerillas do not display a "fixed distinctive sign recognisable at a distance", they are traditionally not entitled to the protections of the Geneva Convention
Terrorists are not afforded protection under the 3rd convention. Nor the 4th one because, The Fourth Geneva Convention (or GCIV) relates to the protection of civilians during times of war "in the hands" of an enemy and under any occupation by a foreign power. This should not be confused with the better known Third Geneva Convention, which deals with the treatment of prisoners of war.
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wyldberi
P&M Regular Contributor
Posts: 93
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Post by wyldberi on Sept 7, 2006 22:17:22 GMT -5
Wow, there's a lot of points made in realdre's last three posts. Too bad they don't address Morrison's challenge to strike down the Constitutional requirement that all legal entities within the U.S. to obey the treaties to which the U.S. government is a signatory party.
All these points remind me of the stuff the neo-clowns point out to explain how anyone kidnapped, captured, wounded or killed as "terrorists" do not deserve to be protected by the terms of the Geneva conventions.
It's like claiming foreign-born visitors or residents residing within U.S. borders are not entitled to the protections afforded to Citizens by the U.S. Constitution. The Declaration of Independence which Morrison had the foresight to post here states that "all men are are created equal" [ and endowed with certain unalienable rights, . . . including . . . life, liberty, and the pursuit . . .]
There is no interpretation. The words declare what they mean. We have no right to kidnap and incarcerate suspected terrorists in secret prisons without exercising due legal process to deprive them of their rights. And no state governor, U.S. senator, or president has the ability to ignore the rule of law.
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Post by Nathan Morrison on Sept 8, 2006 0:40:22 GMT -5
Wow, there's a lot of points made in realdre's last three posts. Too bad they don't address Morrison's challenge to strike down the Constitutional requirement that all legal entities within the U.S. to obey the treaties to which the U.S. government is a signatory party. All these points remind me of the stuff the neo-clowns point out to explain how anyone kidnapped, captured, wounded or killed as "terrorists" do not deserve to be protected by the terms of the Geneva conventions. It's like claiming foreign-born visitors or residents residing within U.S. borders are not entitled to the protections afforded to Citizens by the U.S. Constitution. The Declaration of Independence which Morrison had the foresight to post here states that "all men are are created equal" [ and endowed with certain unalienable rights, . . . including . . . life, liberty, and the pursuit . . .] There is no interpretation. The words declare what they mean. We have no right to kidnap and incarcerate suspected terrorists in secret prisons without exercising due legal process to deprive them of their rights. And no state governor, U.S. senator, or president has the ability to ignore the rule of law. Thank you Wyldberi for that thoughtful evaluation and passionate response. I'd like to go one step further, and suggest that the USA would expect human treatment from other countries also. This goes beyond merely signatories, although I agree that with signatories the obligation is undeniable. It goes beyond signatories with IHL, or international humanitarian law. That doesn't include all treaties, but it does cover all of Geneva. Good to have you aboard Wyld
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Post by PHILIP RACUEL on Sept 8, 2006 1:10:33 GMT -5
The bottom line is eveeryone else in the world has to abide by laws and treaties except the Bush Crime Family- they are above the law...we are in a "time of war" and dumb ass is a "wartime President" ........so law? treaties???........blah Bush can't deal with that...it will keep him from protecting us- what we have to ask ourselves is jjust what exactly do we need protecting from?
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Post by realdre on Sept 8, 2006 12:05:17 GMT -5
U all do realize that there is legal precedent for what Bush is doing with "unlawful combatants" BushCo was not the first to use this term either...see if you can keep up and follow me on this one. And for the record I did answer Nathan's question regarding unlawful combatants because I believe this is what is hanging undernearth his question. Im into the legal argument solely, because you can make the case. Now as a matter of social dignity yes Id agree with you all, but legally Geneva has no weight which what this is about.
Feel free to read the Geneva Conventions and read the defintions of "POW" and "civilians" dont be mad because all the terror suspects, are not specifically mentioned by the Conventions. Because legally speaking under the Conventions they have no classification whatsoever, especialy members of terrorist organizations. The question you should be asking is are they members?
An unlawful combatant (also unlawful enemy combatant or unprivileged combatant/belligerent) is a person who is accorded neither the rights a soldier would normally have under the laws of war, nor the civil rights a common criminal would normally have.
The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII). However, Article 4 of GCIII does describe categories of persons who are entitled to prisoner of war status. "Prisoner of war" is generally synonymous with "detained lawful combatant."
Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a prisoner of war (POW). A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5.
1942 Quirin case
The term unlawful combatant has been used for the past century in legal literature, military manuals and case law. The term "unlawful combatants" was first used in US domestic law in a 1942 United States Supreme Court decision in the case ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):
"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 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."
Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.
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Post by Nathan Morrison on Sept 8, 2006 12:48:05 GMT -5
"but legally Geneva has no weight which what this is about. "
That's where I stopped reading what you wrote Dre. That's where you are so CLEARLY WRONG that it's really silly.
Dre, I just quoted the constitution for you.
It doesn't get any more legally 'heavy' than that. It carries ALL of the legal weitght possible. Period.
Define these people however you want Dre, they are HUMANS and they are defined under Geneva as such.
Additionally, it's funny you've switched the entire debate over to detainees now, when the Geneva Debate regarding Cluster Bombs wasn't quite working out for you LOL.
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wyldberi
P&M Regular Contributor
Posts: 93
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Post by wyldberi on Sept 8, 2006 13:09:42 GMT -5
There is no legal argument to be made for any of this.
1) The legal documents upon which our system of justice is founded state that all people are entitled to due process. Kidnapping, transporting detainees across international borders, and failing to treat them as human beings violates our laws.
2) The U.S. in not engaged in a war. War is a state of conflict existing between nation states, and in our country, war must be declared by Congress. None of this has happened.
What has happened is that our executive branch has usurped the power of Congress and claims it has the right to wage unlimited warfare anywhere, anytime it chooses. As a corollary to his presumptive, unproven status as a wartime president, bush claims he has the right to violate the Constitution and the Civil Rights of ordinary citizens, which is nothing more than a lie. bush is playing the role of dictator; all that remains is for him to abolish the Congress to take complete control of the federal government.
At that time, I would expect to see bush, and possibly cheney assassinated, and the replacements would be closer to the inner circle of those responsible for placing bush upon his paper throne.
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Post by realdre on Sept 8, 2006 14:31:11 GMT -5
Once again geneva is optional....I citied the case for you of where that determination comes from....read the case file. First off I could care less if Israel cannot use cluster bombs, in warfare you should be allowed to use any means necessary. Limiting what kind of weapon is even more silly only because the true enemy of war itself has yet to be stopped which is war. And they have not done that is the UN or Geneva. So I find that to be a little on the bs side when it comes to who cant use what kind of weapon.
I still feel as you know Geneva is second fiddle to the Constitution. These people do not fit under the Geneva definition of "prisoner of war", nor do they fit under the genevea definition of "civilian", "protected persons".
Personally, Bush found a legal international loophole. Thats it. And you he beat the system. If you go to charge him with these alleged violations, A) you cannot prove he himself sanctioned them and said torture them, B) not knowing is not the same as masterminding such a plot, C) He has legal precedence in the Quirin case.
The only argument I keep is getting is that they are Human and should not be treated as such. On a social level yes you are correct. However Im talking about legal which has nothing to do with morality or ethical considerations. Its called legal povitism.
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