Where exactly is a person defined in the Constitution?

Roe v. Wade found such a definition:

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.

Go through each of these provisions, strike out the word “unborn”, write in the word “extraterritorial alien” in crayon, and you’ll find a perfect fit — none indicates, with any assurance, that the constitution has any possible extraterritorial application.

Indeed, note the close parallel between Roe’s “prenatal application” language and Johnson’s virtually identical “extraterritorial application”

Now look at U.S. practices towards enemy combatants that it considered uncivilized — Indian wars come to mind, among others — and you’ll 19th century practices regarding disposing of undesired enemy combatants far freer than today, just like abortion practices.

An honest application of the test reaches one and only one conclusion.

Roe purported to provide a general test for what is and is not a person, a neutral test, one not invented specifically for abortion but rooted in general constitutional principles. A rather textually based test at that.

If it’s a valid test, it ought to apply here.

readery: Consider for example, cases like United States v. Alvarez-Machain (Constitution does not prevent Mexican national from being kidnapped and brought to U.S. territory)…

United States v. Alvarez-Machain, 504 U.S. 655 (1992), was a decision by the United States Supreme Court, which held that the fact of respondent’s forcible abduction does not prohibit his trial in a United States court for violations of this country’s criminal laws. It re-confirmed the Ker-Frisbie Doctrine established in Ker v. Illinois (1886) and Frisbie v. Collins (1952).

…and Chrisopher v. Harbury (American spouse of Guatemalian allegedly tortured and killed by CIA in Guatemala has no remedy under U.S. law) Cases like these, along with Johnson v. Eisentrager and Roe v. Wade, make the idea that rights precede the constitution completely meaningless as a practical matter, mere mumbo-jumbo. If the constitution provides the test to say who has rights and who doesn’t, then the constitution for all practical purposes supplies the rights.

In United States v. Alvarez-Machain, the question was whether or not he was prevented from being brought to trial for alleged crimes. That doesn’t mean he was prevented from seeking damages. Like I said, the Constitution is suppose to limit government in all its actions, foreign and domestic…

In Christopher v. Harbury, you imply a ruling that is not the case. As with many cowardly decisions made by the courts, the Court violated it’s prime directive. Justice. It seems it plays to the advantage of Government at the expense of ignobles.

People seem to praise the Constitution for having bestowed upon the citizens of the states certain rights. Unfortunately, all the Bill of Rights did was declare what was already true. It didn’t change anything. It restricted the federal government from exercising powers that it was never granted in the first place.

If your conclusion is based upon the actual constitution, what do you need precedent for? Precedent is not the Rule of Law, the Constitution is.

readery:
The fundamental difficulty with this argument is that we know that the constitution defines what is and is not a person. We look to the constitution to tell us that. Only persons within the meaning of that term as used in the consitution have rights. Roe v. Wade tells us so, as does Johnson v. Eisentrager.

We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

…It is not for us to say whether these prisoners were or were not guilty of a war crime, or whether if we were to retry the case we would agree to the findings of fact or the application of the laws of war made by the Military Commission. The petition shows that these prisoners were formally accused of violating the laws of war and fully informed of particulars of these charges.

Where exactly is a person defined in the Constitution? The Constitution establishes government, not humanity.

Since the Courts have jurisdiction over all things arising under the constitution (Executive Authority, lack of constitutional authority beyond defending from invasion, and military action to overthrow a sovereign nation not directly involved, in order to engage in a civil war, etc) and since the federal government believes invasion and occupation of a sovereign land is constitutional… it becomes a territory of the United States until such time that military action has ended. This also makes all citizens of an occupied country, naturalized as citizens of a U.S. Territory.

readery: There may perhaps be personal rights in some abstract platonic sense, but since the concept of personhood is wholly dependent on the constitution and only what the Supreme Court declares to be persons in accordance with the constitution are in fact persons and have personal rights, any existence of personal rights with no persons to enjoy them wouldn’t really matter — it’d be a purely academic conception with no real-world significance.

The rights in Question are endowed by our creator, that ALL men are created equal. Every person has the right to protect his home from invaders, which is part of the Law of Nature, as well as nations.

In order to go to war with another country, there must be a dispute in which one side has suffered a loss due to some violation of treaty or the Laws of Nations. Being that Afghanistan had nothing to do with 9/11, and considering the Taliban asked for evidence linking Bin Laden to 9/11 (of which the FBI’s official position is no such evidence has ever existed) and President Bush refused. It is the duty of any civilized nation to request evidence under similar circumstances, so was not an unusual request.. however the invasion is an unusual response.

Imagine if during the American Civil War, Britain, France, Germany, etc all sent troops, who in turn assisted the South in crushing the North. Should citizens who only wish to protect their homes and families be convicted under a military tribunal? It’s one thing when the enemy is the first to invade, it’s completely another when you’re the invader. It amounts to Global Tyranny.. and Misdirected vengence.

If any exercise of powers delegated by the Constitution is for any other reason than what is declared in the Preamble (aka Intents and Purposes Clause) than such an exercise is unconstitutional.

This post was mentioned on Twitter by marciahofmann: @tamaraholder Re: terrorism trial in NYC, thought you might find this interesting. http://bit.ly/7yq9bB...

Howard Gilbert: However, if you argue that they are some category of detainee not entitled to POW status, then any other label you put on them (terrorist, criminal, …) makes them a civilian whose entry into the US may provide additional rights they would not have enjoyed overseas or as an interned POW.

Under the Geneva Conventions, spies and saboteurs can be executed, IIRC. If they fit into either of those categories, which, from what I sort of kind of recall they do, then putting them in the US would give them no new rights. It would change the location of their death.

Rumsfeld replied that the Geneva Convention applies to all prisoners held in Iraq, but not to those held in Guantanamo Bay, where detainees captured in the global war on terror are held.

By sweeping so many combatants off the battlefield, by tolerating brutality in the search for intelligence, and by insisting that the executive branch alone made the rules, the Bush administration lost the opportunity to create an internationally accepted detention policy for that select group of truly dangerous al-Qaeda and Taliban operatives. [my emphasis]

I sense a certain desire to blame the victim, which is especially ironic in view of the legal victories the detainees did manage in the US Court System.

PersonFromPorlock: Much of law’s ‘complexity’ comes from government trying to have its cake and eat it too and this is a good example.

Exactly. Why the Bush Administration wanted to do this is worth thinking about. My belief is that since they wanted to be omnipotent (Article II trumps Constitution, treaties, etc.) they had to feign being omniscient (except “worst of the worst” included 90-y.o. man in very first arrivals at Gitmo).

Cases like these, along with Johnson v. Eisentrager and Roe v. Wade, make the idea that rights precede the constitution completely meaningless as a practical matter, mere mumbo-jumbo. If the constitution provides the test to say who has rights and who doesn’t, then the constitution for all practical purposes supplies the rights.

The Constitution does not grant anyone rights. So the answer to the question is quite simply, no… no rights are conferred upon him by the Constitution.

The fundamental difficulty with this argument is that we know that the constitution defines what is and is not a person. We look to the constitution to tell us that. Only persons within the meaning of that term as used in the consitution have rights. Roe v. Wade tells us so, as does Johnson v. Eisentrager.

There may perhaps be personal rights in some abstract platonic sense, but since the concept of personhood is wholly dependent on the constitution and only what the Supreme Court declares to be persons in accordance with the constitution are in fact persons and have personal rights, any existence of personal rights with no persons to enjoy them wouldn’t really matter – it’d be a purely academic conception with no real-world significance.

and joined the Afghan Army under the Taliban. They were soldiers in the regular army of a recognized country

I was not aware the Taliban was a recognized country.

However, the Constitution does limit the federal government from infringing upon any persons rights. Since all men are created Equal, the Citizens of the United States have the right to privacy as much as the Citizens in Brazil have a right to privacy. It also means the military, when occupying another country, must treat the citizens as if they were home… Since the federal government is limited to the Jurisdiction established by the Constitution, the rules of government are always the rules of government, and cannot exceed them no matter where they operate.

It would also seem proper that before invading, we’d have gotten a warrant or something… but hey.. that requires probable cause for a specific crime.

I don’t support Terrorism of any kind… 2 wrongs don’t make a right.

Thanks for the response. Your argument is colorable, but so is the counter-argument. I reject your conclusion that because they have a non-frivolous claim, we are obligated to give our nation’s declared enemies the benefit of the doubt, especially given that the enemy has not made any claim for greater status.

Note, my argument that we are not obligated to give the detainees POW status is not an argument that it would not be good policy to do so – the wisdom of that determination is a separate issue.

The primary function of al Qaeda was to get wealthy Arabs to donate some of their zakat (required annual charitable donation) to support the fighting in Afghanistan and to recruit religiously motivated Arab fighters to serve in front line units. In part, this involved a scam where people were told they were donating or volunteering to support Chechen rebels when the money and fighters were really going to the front lines to defeat fellow Muslims of the Northern Alliance.

Al Qaeda trained thousands of soldiers to fight in the Afghan Army, and many of the detainees in Guantanamo fall in this category. A few are famous like Yasir Hamdi, who was on the front lines on 9/11, was captured by the Northern Alliance, was turned over the the US, and whose case was one of the first Supreme Court decisions on detention. Although it is correct to say that these men were trained by al Qaeda, they were not members of al Qaeda and were soldiers in the Afghan Army.

Foreign fighters formed the 055 Brigade. The top ranking military officer among the foreign fighters was Mohammed Atef until his death in a US air strike. He was a follower of Bin Laden and might have been described as an al Qaeda member, but he was also an officer in the Afghan Army. His primary responsibility was the font line troops, but he was aware of and supported the separate terrorist operations.

A reasonable working hypothesis is that almost all the legitimate detainees (that is, excluding the Boumediene Bosnians and others freed through Habeas because the courts held they were not properly detained) were members of the Afghan Army under the Taliban, most of whom were recruited, trained, and equipped by al Qaeda at the al Farouq camp.

The failure of detainees to comply with Geneva procedures may strip them of any individual cause of action, but when we pass judgment on policy instead of looking for someone to sue, US assertions may fill in the missing procedural gap. The US classified many of these prisoners as “unlawful enemy combatants” because of a option authored by John Yoo that members of the Afghan Army under the Taliban were not entitled to the status of lawful combatants. If that opinion was wrong as a matter of law, then applying correct law to the same allegations of fact (that they were members of the Afghan Army) then makes them lawful combatants entitled to POW status. If we have been asserting as a basis for detention all the facts needed to establish POW status, a failure of the detainee himself to claim his rights formally does not absolve us of blame for not fulfilling our international obligations on our own initiative.

The question is their status as persons. Even illegal aliens become persons when brought into the United States, just as even unwanted fetuses become persons by being born. And persons clearly have rights that non-persons, under cases like Johnson v. Eisentrager and Roe v. Wade, simply do not have

Roe v. Wade teaches that alhough government can apply moral values and principles in its dealings with non-persons, its ability to do so is highly circumscribed and scrutinized, and courts are on their guard to ensure that and government consideraion of non-persons does not unduly burdens Americans’ enjoyment of liberties, definitely including reproductive freedom and possibly including security.

Persons feel pain, but it is not at all clear whether non-persons are capable of feeling pain. It has been argued that the that non-persons feel pain is a mere religious idea and that government acting on it represents religious belief in violation of the First Amendment.

The constitution speaks of the “accused” as distinct from both persons and people, so government unquestionably can choose to charge non-person security threats and subject them to criminal trials rather than use military procedures, and could presumbly do the same regarding fetuses matters rather than use medical procedures. It doesn’t have to, but it can. But allowing accused aliens to enter the country has the same effect as deferring a criminal trial until accused fetuses are born. Instead of having only the rights of the accused, they also enjoy the rights of persons (and in the case of fetuses, the rights of people and the priveleges and immunities of citizens.) They have the right, for example, to due process of law which they are not otherwise entitled to.

Indeed, Roe v. Wade gives rise to some difficult questions about the morality of bringing non-persons into the country. Can one deliberately create a moral being when there wasn’t one before for the purpose of destroying it? A supproter of Roe might think the idea of trying a baby for its conduct while a fetus seems a bit odd. Is a person even responsible for conduct that occurred while it was a mere thing that happened to occupy the same biological body? Crime has a concept of personal responsibility that seems inconsistent with Roe v. Wade’s dichotomy of persons wih rights and objects in which government may have an interest but which have no rights.

But is this any different? The constitution definitely permits making non-persons into “accused”, no doubt with exactly this sort of case in mind But doing so seems to require a non-objectifying concept of non-persons that, while still compatible with the Eisentrager v. Johnson approach where regarding non-persons as objects was merely a choice government had, seems completely incompatible with the world after Roe v. Wade, which after all at its core requires government to regard nonpersons as objects, and severely circumscribes government’s ability to look upon them otherwise

The Roe binary doesn’t really seem to make sense here. We may believe aliens have fewer rights a foot across the border and entertain the idea that any government protection of them is only to protect international relations and implement traditional morality, but it’s difficult to reach the conclusion, as Roe did, that anything that isn’t a person thereby is nothing more than a sack of chemicals so far as rights are concerned. Its hard for us to actually think of them as sacks of chemicals despite the constitution’s command, as Roe v. Wade tells us.

We cling, when push comes to shove, to the very traditional morality Roe labored so hard to rid us of. Even Roe’s supporters don’t seem to be capable of actually applying its commands when push comes to shove.

Is your claim that every member of Al Qaeda was a member of the Afghan Army? Unless this is your claim I don’t see any contradiction. The US has consistently treated Al Qaeda as the functionally equivalent of a stateless militia, which would make the 4 part test exactly applicable. I don’t understand the basis on which you imply that is inapplicable?

I was not aware that no prisoner had requested an Article 5 Tribunal. I agree that they are entitled to such a hearing, and furthermore that the CSRTs as originally conceived were quite possibly insufficient. But knowing that no one has requested such makes claims that their rights have been violated totally specious. Article 5 only requires a hearing in the case of doubt, but if the detainee accepts their designation, then there is no doubt. Any process we provide can be at our discretion.

Although the Bush administration disagrees with this statement, the full text of Article 4 of the Third Geneva Convention does not apply qualifications to members of the regular army of a signatory country like Afghanistan. The limitation on carrying arms openly and such (the four part test) applies in the text only to independent militia, and that was the understanding during negotiation of the text. However, since the interpretation is contested, this can only be determined authoritatively in court.

There is, however, an objective procedural issue that can be raised. A captured soldier must give his name, rank, and serial number (or equivalent) and signatories are supposed to furnish their soldiers with an ID card. The Army of Afghanistan provided no ID, and based on religious doctrine (Gods law is sufficient, there is no need for secular law including international law) no detainee has ever claimed POW status under the Geneva Convention even when invited to do so. Had they done so, that would have triggered an “Article 5 Tribunal” and there would then have been some legal process to determine status. Having neither presented ID nor made the claim, no individual detainee has a basis to claim that he personally was mistreated by the policy. That does not, however, resolve the contradiction between the claim that these people are enemy combatants and the claim that none of them can be entitled to POW status.

Getting back to the original question, however, if someone is brought into the US as an interned enemy combatant and is held by the military under conditions that conform to the Geneva Conventions, then there are 435,000 WWII precedents to suggest that they acquire no additional rights as a result of their internment. However, if you argue that they are some category of detainee not entitled to POW status, then any other label you put on them (terrorist, criminal, …) makes them a civilian whose entry into the US may provide additional rights they would not have enjoyed overseas or as an interned POW.

PersonFromPorlock: Ariel: We declared war on terror and these guys are what terror’s soldiers look like. Which is why they’re POWs. If we’d called AQ a criminal conspiracy and declared war on any country protecting it we could have gone into, say, Afghanistan, put down their armed forces, captured the terrorists and had a nice distinction between POWs (the Afghan Army) and accused criminals (KSM et alia).But we didn’t, and now we’re stuck with it if we have any respect for consistency.

To be clear, we did not declare war on terror. Congress authorized the use of military force against the terrorists behind 9/11. The grant of power to the executive was not broader than that, notwithstanding some of what he said. If you looked at his actions, though, he generally acted in comportment with that – we didn’t get involved in the Sri Lankan civil war.

Nevertheless, you may think that these are what terror’s soldiers look like. But that’s not what the Geneva Conventions define soldiers who receive POW treatment as. We can call them a criminal conspiracy, or terrorists, or whatever – they are not following the requirements under the Geneva Conventions to receive POW treatment. There’s no reason to think they should get it. The fact that some soldiers don’t comport themselves with the Geneva Conventions, and that arguendo we’re at war with them, does not mean that we have GC duties with regards to them.

Howard Gilbert: A person’s status is not determined by the place of detention, but rather the detention is determined by his status. There are rules in the Geneva Convention, but the idea goes back hundreds of years. In Eighteenth Century terms, being a soldier is about duty and honor, and it would be intolerable to put them in a civilian prison where they have to associate with “common criminals.” So enemy soldiers must be detained by the military in facilities that only hold other captured soldiers and are separate from criminal prisons. Anything else is an affront to honor. We would probably use different language today, but the rule still holds.However, since KSM is charged with a civilian criminal offense defined in international law (air piracy and murder arising from it) then during trial he can probably be held in the same type of facility that holds other accused criminals. The question is what type of facility do they use to hold him when he is not on trial. A formal declaration, however, might be made to explain why the court cannot consider bail (enemy combatant) or should remand him without bail (normal criminal).

Howard, what about the odd case of Manuel Noriega:

The Federal Bureau of Prisons website as of 2009, does not give a projected release date for inmate Noriega.[3][23] However, he may be handed over to another country for trial or imprisonment instead of being released into the public realm.

Under Article 85 of the Third Geneva Convention[24], Noriega is still considered a prisoner of war, despite his conviction for acts committed prior to his capture by the “detaining power” (the United States). This status has meant that he has his own prison cell furnished with electronics, which some have described as the “Presidential suite.”[25]

Noriega’s prison sentence was reduced from 30 years to 17 years for good behaviour. After serving 17 years in detention and imprisonment, his prison sentence ended Sunday September 9, 2007.[3] Noriega remains in prison as of 2009.

http://en.wikipedia.org/wiki/Manuel_Noriega#Incarceration

(And yes I’m aware of the danger of relying on wikipedia, but I don’t see anything wrong about the information here)

Noriega is considered a POW, but is held in regular prison, though with some extra benefits as per POW status.

And I’m not sure why he’s still being held even though his sentence is complete — if France or Panama want to extradite him, they’ve had 17 years to to that already.

But we didn’t, and now we’re stuck with it if we have any respect for consistency.

But I think it’s now incumbent on the real Chief Magistrate, Chief Justice John Roberts, to issue a statement guaranteeing the neutrality of the legal process KSM will face; and if he can’t make that guarantee because the administration has adopted a position of “KSM hangs for these acts, regardless,” to refuse to allow the criminal trial to go forward.

Two major issues with your analysis:

(1) The captured folks are not POWs (for the most part). Prisoners of War are the captured members of armed forces who follow certain requirements, such as carrying their weapons openly, segregating themselves from civilians, and having a uniform. The Geneva Conventions do not have something directly on point for these kinds of folks, but the categories of spy and saboteur are probably the closest. IIRC, there are no requirements for how you hold captured spies or saboteurs (but I could be wrong). Arguably, the Taliban might qualify for POW treatment, but I’m pretty sure AQ would not.

(2) The GCs were designed for nation-to-nation warfare. The original intent was to make fighting wars a slightly less nasty business by creating a system of reciprocal methods for good treatment of each country’s soldiers in exchange for other countries doing the same. The GCs may apply to an insurgency/insurrection context, but it’s hard to see how that would apply to an external force attacking through terrorist methods. Here, I’m not talking about a captured Taliban soldier, but a captured AQ member.

geokstr:
Of course it does. It gives them the absolute constitutional right to be blatantly used as political pawns in the PR war to get the evil Bush/Cheney/Yoo/CIA/et al punished somehow for having policy differences with the lunatic left.

I know what you mean. I have this asshole neighbor who is always mowing is lawn just to show up how crappy mine is. And his snotty kids are always making the honor roll out of spite… just to show up my beautiful but dumb children. And don’t even get me started about how bad his wife makes mine look…

“Stronger”, as used by both of them, is not a term used to describe the type or quality of evidence against the accused. Rather, “stronger” is a term used by both of these men to describe facts or arguments that when used correctly by the defense and judge will place the Bush adminstration and military, and thus the entire GOP, in a bad light.

Then again, were Verdugo decision ever to reach the Supreme Court for a challenge, it would probably be overturned or ruled as bad case law. Verdugo’s use of defining “the people” to deny a class of people their rights reminded me of this gold nugget from Dred Scott v. Sanford:

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary.

But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

It’s bad when the logic of your opinion mirrors the worst Court decision in history so closely.

The issue is that the assertions by Obama and holder directly contradict the idea that giving KSM (although not others) his day in court is necessary to restore international confidence in our justice system. If this were in any part a confidence building exercise, the Obama administration would be going to great length to emphasize the fairness of the process, not stating the outcome before hand. Since his actions contradict the explanation, the explanation must be wrong – so again, why is Obama is giving KSM a criminal trial?

This was explained at length in the other thread in which you were a participant. Why the protestations of ignorance here?

egd: I can’t recall any public officials saying “X will be convicted.” There’s too much chance for tainting the case. I wasn’t able to find anything like this (admittedly, Google is now tainted by Obama’s statement), are you aware of any specific cases?

I was recalling another thread where someone found it untoward that Holder was saying how confident he was that KSM would be convicted. For examples of prosecutors making statements like this, take your pick. Giuliani in particular was infamous for waging war in the media with criminal defendants during his tenure as U.S. Attorney.

As for Obama, you are right it is unusual for a President to make a statement like this. Then again, it is unusual for a bipartisan committee to publish a report several hundred pages (the 9/11 Commission Report) detailing the evidence against someone like KSM before they have had a criminal trial. For Obama to honestly say he has doubts about the outcome of the trial would basically require him to distance himself from the work of the 9/11 Commission as well as question his own administration’s position in holding KSM as an enemy combatant. He is not a neutral or agnostic party in this case and there is no real reason for him to pretend otherwise.

The US would be entitled to hold KSM pending the efforts to deport him. But at least under immigration law, if it were determined that there was a likelhood of, say, torture we would not be permitted to deport him and, in the end, we also could not hold him indefinitely. The SCt in a case called Zavydias held that presumptively a detention of 6 months to find a place for removal was the maximum.

So, to spin the hypo out, if KSM is acquitted, he would then be subject to an order of removal to say Pakistan. He could challenge that in court alleging he would be tortured in Pakistan if returned. If a court agreed and if the US could not find an alternate place to remove he where he would not be tortured (and which country would agree to take him??) then after 6 months he might, conceivably, be ordered released into the US. Unlikely — yes, highly. Plausible as a construction of law — yes, also.

From the Third Geneva Convention:

Art 21. The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.

A POW may only be held in close confinement (that is, in an individual prison cell) as punishment after being convicted of a military crime in a military court. A proper POW camp is a barracks (one in which you would house your own regular soldiers), although for a POW it may be surrounded by a fence and they may be constrained not to leave it.

In a proper POW camp, the detainees continue to function as a military unit. Captured enemy officers command captured enlisted men. This unit is, however, disarmed, cut off from the enemy army, and having surrendered is bound to follow the lawful orders of American officers just as they would previously have followed the orders of enemy superiors.

Those accused of a real crime (like KSM) can certainly be held in a prison during their trial, and then afterward if they are convicted and serve their sentence. Those whose only action was to join the enemy army, and those who have completed any sentence for a crime, should be held in a military camp surrounded by a security fence, not in yet another supermax prison now in the US.

Internment of enemy combatants without charge or trial is the way the POW system is supposed to work. That is not a problem. Close confinement of an enemy prisoner for eight years without charge or trial, however, is a clear, unambiguous violation of the Geneva Convention. Calling them “unlawful enemy combatants” without any sort of trial does not cure the violation.

Ricardo: But are you seriously suggesting this is the first time you have ever heard of public officials going before the cameras in announcing how confident they are that someone will be convicted?

Usually the line is “the perpetrators will be brought to justice” or “X will receive a full and fair trial…”

I can’t recall any public officials saying “X will be convicted.” There’s too much chance for tainting the case. I wasn’t able to find anything like this (admittedly, Google is now tainted by Obama’s statement), are you aware of any specific cases?

The US has absolutely no right to prosecute some Yemeni for enlisting in the Afghan Army even if to do so they had to receive basic training at an al Qaeda camp.

The US didn’t recognize Al Qaeda as the legitimate rulers of Afghanistan. This Yemeni wouldn’t be enlisting in the Afghan army, they’d be enlisting in a very large, well-funded, gang.

Try him in Federal Civilian court for things other than 9/11 – like the 1993 bombing or possibly Daniel Pearl’s murder.

If he gets acquitted, try him in a tribunal for war crimes and/or murder for 9/11.

If he gets acquitted, hold him for the rest of his life as a POW. He claims he’s in a war against the US that will only end with the destruction of the US. Well, so long as we’re not destroyed it’s an active war and he gets held legitimately as a POW.

Jeff Wilson: Won’t this be seen as poisoning the jury pool? How can these people get a fair trial if the Chief Magistrate is quoted while preparing the gallows?

I’ve been seeing this “show trial” meme so much recently I’m really curious where it comes from originally. But are you seriously suggesting this is the first time you have ever heard of public officials going before the cameras in announcing how confident they are that someone will be convicted?