I noticed the netLeft nutJobs here avoided that question like a plague.

When, you ask David? Never. We won’t get a finding because when the GOPers recapture the WH for the People in 2012, we’ll follow our long tradition of not playing backward politics like the Dems play. We move forward. We won’t ask the DOJ to investigate the criminality of ACORN, even though the DOJ, the IRS, HUD and dozens of other govt’al agencies let that ripe watermelon fall to the barn floor because it means holding a mirror and light up to the Democrat Party’s corruption. We move forward.

We won’t ask DOJ to investigate the near-criminal tax evasion episodes by Obama cabinet hires, cabinet staff, EO staff, czars and the like. We move forward.

We won’t investigate the backroom corruption that Obama’s 2008 campaign brought into the WH –a WH that had finally purged itself 8 yrs earlier of the self-dealing, sexual predation and campaign finance corruption known as SlickWilly & the Band of Criminals. We move forward.

We won’t question the use of presidential pardons and Eric Holder’s role in letting another batch of criminals and federal felons off the hook because they gave money to the Obama camp. We move forward.

David, we’ll never get a finding that Obama and Holder were Conscientious Objectors in the War on Terror because, even though they are, driving them from office in disgrace in 2012 will be far, far better than any finding that a group of lame civil rights lawyers dropped the ball in the Christmas Terrorist case or the handling of KSM & his band of Obama supporters.

Are those Hillary Clinton’s daggers I hear being sharpened in the wings? Watch out Obama, when she’s says she has your back… she doesn’t mean it like a Chicago Thug street fight.

Taking the long view, this is actually required for a stable international order, so they are actually the same argument. But: it’s not one I’d make around here in any real detail or cost of effort.

Non-state actors, or indirect state actors acting in armed conflicts is not new and doesn’t require the proliferation of additional legal categories if the goal is to deal with combatants in a just way, and in particular one that doesn’t presuppose their guilt. The Yugoslav war crimes trials exist explicitly under a (US-supported) assumption that non-state actors are bound under the Geneva conventions and international law as it applies to human rights.

The only reason why al-Q, etc, differ from any of these situations, is their particular current position in the firmament of perceived US interest. In time, the worm will turn, and the US will again demand a broadly dichotomous interpretation of international law while e.g. China takes the opposite position in re Taiwan, etc. The goal of a stable international order demands a non-oscillating accepted interpretation of international law, without the capacity for individual states to unilaterally decide that there exist gaps in the law precisely contrived to suit the situations that match their passing interest.

Reciprocity is not a requirement of the Geneva conventions or international law in general. Signatories to the Geneva convention are considered bound by it regardless of the nature of the opposing side. Non-state combatants are considered to be bound under regular civilian law.

All of this is available both in the texts of the conventions and on Wikipedia. Check the entries for the Geneva conventions and for “unlawful combatants.”

And the echo chamber, circle jerk of AnnieM and TeaBagged just keeps blowing hot air with no constructive result. Stunning their level of base anger and hate against America. And these are what passes for Democrat patriots?

I understand good intentions, but also the need to re-interpret procedure when good intentions fail.

“The whole point is that governments must decide whether they are fighting foreign countries or civilian insurgencies/organizations and treat them as one or the other.”

I disagree that this is the whole point. Further, I fail to see any wording in any treaty that accommodates a proxy war, or a multi-lateral insurgency such as that we face today.

“(This is quite independent of any notion of reciprocity. As far as I know, neither international nor domestic law is based on any notion of reciprocity but instead equal enforcement insofar as is feasible.)”

Any treaty is, by definition, dependent on reciprocity. That is the purpose of having signatories. That said, I word argue that enforcement of Geneva conventions is not at all feasible as it respects our interests.

“This is not intended only to be the human-rights-mongering of effeminate dirty hippies or what have you, although why that shouldn’t be the primary goal is beyond me, of course.”

Really, it’s beyond you? You cannot understand why this is not a purely human rights argument?

“It was intended in a larger context of systems established over time to stymie imperial ambitions,”

On what basis do you assert this?

“It was intended as a practical defence the order of states: to place conflicts into categories of law that cover the rights of nation-states.”

This makes more sense, and seems to specifically exclude an organization such as Al-Qaeda, which operates internationally.

“In attempting to find semantic gaps that were never intended to be there,”

Again, on what basis do you assert that they “were never intended to be there”?

” Yoo and Bybee and all their fellow travellers including our dear host have undermined a legal system that protected state sovereignty.”

Huh?

“They did it as part of a larger—now failed—play for neocon imperium. Since the ploy, as predicted, failed, and the influence of the USA is waning, how do you think that other actors are going to exploit the proliferation of ambiguous legal entities?”

Same as they ever have. How do YOU think the “other actors” are going to exploit said proliferation?

“Do you honestly think this is a good outcome?”

You said that your argument is independent of any notion of reciprocity, and yet it seems to hinge on reciprocity. I am arguing that no such reciprocity exists. You can’t have it both ways. Defend one viewpoint, or the other.

As you mean it, and as it respects non-citizens who represent groups who are trying to kill us, yes.

“The individuals “we think /we believe” to be terrorist and we don’t know how to classify them under law, we’ll just shoot them and be done with it.”

What the hell are you talking about? I said I wanted to get information from the underwear bomber prior to reading him his miranda rights. So the only solution that accommodates my viewpoint without creating a gray area is to shoot him in the head immediately? That says more about your notion of a gray area than it does about my viewpoint.

“I guess it’s all part of the Cheney 1% doctrine, it there is the slightest possibility of something, take 100% protection against it. If the law get in the way, ignore it.”

No, we need to refine the law to accommodate a new kind of threat. Can you at least agree that existing laws are inadequate to meet a threat such as Al Qaeda, given that you advocate absolute adherence to them?

“Now that’s a government policy any good German could live with.”

The Germans to which you are referring had no interest in arriving at a consensus about what constitutes torture. I would argue that a failure to arrive at that consensus prior to suffering defeat in WWI was a precursor to the horrors of the Holocaust.

“I was just following orders, and I had a government permission slip from John Yoo saying it was okay to send the jews to the chambers.”

You demonstrate a strong fundamental understanding of history. I’d like to subscribe to your newsletter.

“What’s the difference?”

For starters, the whole waiting for a permission slip from John Yoo thing. That said, and as long as we’re making absurd, opportunistic arguments, I’m not sure FDR would have been taking advice from an internment camp of his own making, yah?

Otherwise, I would note that John Yoo is talking about people who, by definition, have been caught engaging in hostilities against American troops and innocent civilians in their own countries. Setting aside the question of whether they deserved to be detained in the first place (I’ll leave it to you to challenge the authority of our military to do so), there is no consistent application of this law along ethnic lines.

Oh, and there’s the whole thing about mutilating and murdering innocent women and children, harvesting organs, rape, extracting gold teeth, making people into lamps. I know those distinctions seem frivolous to one who is not inclined to think, but upon reflection… I mean… Yeah, reflections not in your wheelhouse, is it?

(This is quite independent of any notion of reciprocity. As far as I know, neither international nor domestic law is based on any notion of reciprocity but instead equal enforcement insofar as is feasible.)

This is not intended only to be the human-rights-mongering of effeminate dirty hippies or what have you, although why that shouldn’t be the primary goal is beyond me, of course. It was intended in a larger context of systems established over time to stymie imperial ambitions, or at least to deny them legitimacy in a system constructed to support organized global civilization. It was intended as a practical defence the order of states: to place conflicts into categories of law that cover the rights of nation-states.

In attempting to find semantic gaps that were never intended to be there, Yoo and Bybee and all their fellow travellers including our dear host have undermined a legal system that protected state sovereignty. They did it as part of a larger—now failed—play for neocon imperium. Since the ploy, as predicted, failed, and the influence of the USA is waning, how do you think that other actors are going to exploit the proliferation of ambiguous legal entities? Do you honestly think this is a good outcome?

I take it you would rather live in the murky gray area of extralegal justice. The individuals “we think /we believe” to be terrorist and we don’t know how to classify them under law, we’ll just shoot them and be done with it.

I guess it’s all part of the Cheney 1% doctrine, it there is the slightest possibility of something, take 100% protection against it. If the law get in the way, ignore it.

Now that’s a government policy any good German could live with. “I was just following orders, and I had a government permission slip from John Yoo saying it was okay to send the jews to the chambers.”

What’s the difference?

“Is it less dishonest to do what is wrong because it is not expressly prohibited by written law? Let us hope our moral principles are not yet in that stage of degeneracy” – Thomas Jefferson

To which civilian law are you referring?

The problem with the binary approach (official soldier of an army or civilian owed due process) is that any country can then fight a proxy war, whereby their combatants are entitled to constitutional rights. The Geneva convention cannot apply unilaterally, else it would require us to release those soldiers immediately, by definition.

The proxy war scenario is scarcely hypothetical, as I’m sure you’re all aware.

This doesn’t even consider the fact that the Geneva convention requires reciprocity in order to be effective. The United States never would have signed onto an agreement to engage an enemy on terms to which the enemy has not agreed.

I’m willing to eschew waterboarding, and other practices deemed to be torture, pending a reasoned discussion of what techniques are allowable. My position, contra the hysterical assertions of the left, is not that we should “shoot them as quickly as possible”. But as long as the torture question is merely a means of deriving a principle by which to condemn the previous administration, I don’t think we’ll every arrive at a satisfactory answer, nor do I think we’ll end said practices.

I do not think offering terrorists Miranda rights is tenable, and I fail to see how doing so is in our best interests as a nation, or why it is any sort of inherent moral good. The right to a fair trial is a procedural barrier between civilians and government, the goal of which is to subvert the tyrannical imprisonment of dissidents. It is a means to an end, not an end in and of itself.