I'm no legal mind, but here's my opinion.

The only uninhibited private actors in that scenario would be the bad guys. Governments would be pressured to reign in or ban any vigilante forces before they could do any good. No civilised government will want their name associated with the inevitible atrocities and excesses of mercenaries.

We continue to deny the threat that faces us, and we'll learn the hard way that you can't defend yourself properly with one hand tied behind your back.

Chester,
Hell of an observation. What about today's NGOs? Are they now sovereign?

I'll say essentially what I said on Belmont Club. In American law, a treaty is, in effect, federal legislation, and as such, may be overruled or modified by later legislation.

We need a bill, immediately, requiring the Courts to accept as binding the interpretation of the Attorney-General or the President as tot he meaning and terms of treaties and international agreements.

Alternatively, we need a jurisdiction-stripping bill immediately.

Just posted this over at Belmont Club in response to the conversation about my post there:

Wretchard,

I believe it was Reuel Marc Gerecht who made the comment about "something between diplomacy and the Marines" and he was speaking in the context of our lack of covert action capabilities vis a vis Iran.

Also, I'm with you: It's interesting to think about a world with private entities running roughshod all over and providing various forms of security at various levels in various places, but in the end, thinking about it is all I'd like to do. I wouldn't want to live in it. I'll keep my uniform, thanks. Something fundamental will have been lost to civilization if things actually come to this. It goes very much along the same lines as your comment in one of your posts about the NYT and SWIFT: It sucks that they outed the program, and it sucks that guys like me are now trying to shame them for it. The whole thing stinks because in some level our civilization is breaking down. Niall Ferguson and Mark Steyn are right: we won't live in a multipolar world if the US goes down in flames. We'll enter the Dark Ages.

RWE: Your scenario is very, very interesting indeed. If I'm an American citizen, but a member of Al Qaeda, and Congress passes a law that Al Qaeda members will be tried by tribunals, does the executive have that option? And what happens when Al Qaeda morphs into a movement (bin Ladenism in the lexicon of the DoD) from an organiztion? Such is the case with the Miami crew yes? They drank the Koolaid, but never could get in touch with the leadership.

motr_dude, yes, I tried to make it assumed in my post that the US now recognizes these rights on the part of Al Qaeda, not necessarily that the Euros do, or would.

meme chose, your observation about the ceding of sovereignty is spot on: Bruce Bawer discusses this at length in "While Europe Slept" and it is truly incredible to read his anecdotes of how the authorities only selectively enforce their laws by virtue of basically whether the offender is a Muslim or not. Equal protection under the law is rapidly ceasing to exist there . . .

I'm still trying to figure out how Justice Breyer gets from "the Geneva Conventions apply to these guys" to "there's nothing stopping the President from going to Congress and getting a law passed to do what he wants to do with these guys". Isn't that the quintessential example of a non sequitur?

Your observation is both chilling and accurate.

That’s an interesting question.

It’s been done before with a different twist. If you recall history, FDR signed the “Lend Lease Act” which authorized a private company to lend fighter planes to another entity. This other company then recruited fighter pilots and shipped disassembled fighter aircraft to China.

This private company then provided a private “Air Force” complete with pilots, aircraft and munitions to fight the Japanese before WWII. It was legal and it worked.

I would guess a similar organization could be put together to fight the terrorists in Iraq and elsewhere.

[Picture of aircraft]

American Volunteer Group "The Flying Tigers" on patrol over China 1941-42.

http://www.flyingtigersavg.com/tiger5.htm

That’s an interesting question.

It’s been done before with a different twist. If you recall history, FDR signed the “Lend Lease Act” which authorized a private company to lend fighter planes to another entity. This other company then recruited fighter pilots and shipped disassembled fighter aircraft to China.

This private company then provided a private “Air Force” complete with pilots, aircraft and munitions to fight the Japanese before WWII. It was legal and it worked.

I would guess a similar organization could be put together to fight the terrorists in Iraq and elsewhere.

[Picture of aircraft]

American Volunteer Group "The Flying Tigers" on patrol over China 1941-42.

http://www.flyingtigersavg.com/tiger5.htm

The ruling provides only Article 3 protections.

But please: explain to me why giving these mopes trials protects us more than just keeping them locked up?

It seems to me that the SCOTUS decision undermines the very reason that the Geneva Conventions were drafted in the first place, which as I understand it was to protect civilians from the ravages of guerilla warfare by non-state actors. The GC sets up a reward-punishment system; if you behave, your soldiers will receive decent treatment if taken prisoner. Likewise, if you do not behave, all bets are off.

The GC sets up I believe 4 requirements that combatants must be meet:

(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.

al-Qaeda meets none of these requirements. What am I missing here?

As has been pointed out by many it was just a bad ruling. Remember Ginsburg and Kennedy has both commented that the court needs to look to international law when considering decisions. So, what international law would help them in this situation to make a decision and to make it look like the Bush administration was not playing by the rules, well that would be the Geneva Convention. But, it looks like they did not really study the GC and so there they set with egg on their faces when everyone starts to really look at the ruling and its implications in real practice.

It looks like congress can do a work around. This is just a pitiful waste of time. At a time when we need to be fighting so hard that our enemy is demoralized by our apparent ruthlessness. .

Bill out.

I think the ultimate result of this will be positive even though the ruling is ridiculous because it will force the president and congress to have a big debate about all manner of things. Perhaps even our membership in the Geneva Conventions will come up as a topic, who knows. This is a point that Wretchard made in the discussion at Bclub: now, this decision forces many things that had been lurking under the surface up to the top for some debate and finality. Hopefully, it'll end with the whole country being on the same page, and not with a need to translate Miranda warnings into Arabic.

Ledger,

The Flying Tigers is an excellent example. A lot of that was funded by one guy, though I forget his name.

I think there was an example in the 1980s of another gov't-funded private national security organization of some kind, but a lot isn't known about it because Iran-Contra was the reigning story of the day.

The only uninhibited private actors in that scenario would be the bad guys. Governments would be pressured to reign in or ban any vigilante forces before they could do any good.

Good point, but "good" or "evil" lie in the heart of the beholder. A non-state force has a constituency to which it must answer or else it loses its support. A non-state force might be even more beholden to its masters and their narrow agenda than a "stated" source.

In discussing this, however, we're putting the cart before the horse.

Can the decision not be said to simply mandate trial of a non-state actor by one means (per the Geneva Convention) or another (per the Constitution) instead of subjecting the detainee to any third undefined means or limbo?

There's an outfit called Blackwater, headquartered in North Carolina, that is doing just what the Flying Tigers did. Fighters available for pay. Most of Blackwater's business as I understand it actually involves training of foreign militaries and mercenaries.

This army-for-hire trend is growing notwithstanding the SC's avowed concerns for killers. Blackwater is quicker, more efficient and, yes, more intelligent than the U.S. military; this SC decision will widen the gap in Blackwater's favor.

Makes one want to revisit Gibbons' "Decline and Fall" as he analyzed how Rome went downhill as it depended more and more on mercenaries rather than citizens to do the fighting.

John R,

I did a recent post about Blackwater. See here:

Let Blackwater Loose in Darfur

CS,

I don't think you are missing anything about not treating them as anything other than common criminals. It's just that they can't be treated as irregular forces anymore, yes? It's either common criminal or POW.

Just thinking -

Does this apply to the memebers of the Irish Republican Army? Kill an American overseas, don't wear a uniform, you're free and clear.

Chester, that's right. But in my view, the procedural hassles are the chief, almost only, problems with treating 'em as common criminals. (I hated the Moussaoui circus, too, but they got it done at last.) The irregular forces slope's a slippery one. That's why the US isn't a party to the 1977 Geneva stuff that essentially legitimized guerilla movements. It's also why I think the whole military tribunals idea was a bad one. It opens a big box of treatment-of-irregulars issues better left closed. More important, it provides a basis for arguing that a guy not in uniform who triggers an IED isn't a murderer. Just try the easy cases, as war crimes or as common crimes. Detain the rest indefinitely. Who knows, maybe the possibility of release from indefinite detention would be a useful interrogation carrot and avoid a little of the political trouble other methods produce.

The Executive Branch is not bound by decisions of the Supreme Court insofar as those decisions arbitrarily limit the actions of the powers inherent to the Executive Branch as outlined by the Constitution. We have three CO-EQUAL branhces of government in this country. Treaties, and their definition, are the purview of the Congress. The conduct of war is the purview of the Executive. The SC had no jurisdiction in deciding that the military tribunals were irregular in dealing with prisoners captured on the field of battle, and had no jurisdiction in deciding when and where the Geneva Conventions should be applied. Both the Executive and Legislative branches of government should ignore this ruling.

Abraham Lincoln said, in his First Inaugural Address:

...the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal

The GC themselves put forward in its Customary laws section that this applies to States and States only. The US is *not* a signatory to the 1977 change to specifically include terrorirst organizations. That was a decision made by the Executive with the Head of State power, but also backed by Congress. As any Treaty sits at the same level as the Constitution, although amendable via legislation, it may not *amend* the Constitution as there is only one means set forth in that document to do so.

So, the the United States, the GC applies only to those organizations that are States, recognized or unrecognized. The formality of a Nation State is to have territory, populace, defined laws, international adherence to the common forms of diplomacy and interplay between Nations, and have full and accountable procedures in-place with which a uniformed military may be held accountable. al Qaeda does not meet this nor does it espouse to want to *become* a Nation. So al Qaeda falls outside of the entire framework of the GC as signed by the Executive and passed by the Legislative branches.

al Qaeda goes further and wishes to have, as its goal, an end to all Nations and one global Caliphate. Thus they also work to undermine all Nation States and the international framework amongst those States, since all of those work against the goals of al Qaeda. By taking no territory, planting no flag, establishing no laws, creating no accountable system for themselves, and for having no uniformed military that is accountable to a State, they can not even *apply* to the GC. They are outside the entire framework of everything that makes the GC possible and would endeavour to undermine that in any way possible.

The Supreme Court has now made them into a non-recognized State. And, as there are no treaties between the US and this new State, and only the most general of Treaty law available, and no ability of Federal law to cover Foreign States save those codified by Congress via Treaty, there is one and only one court mentioned in the Constitution that is fit to serve on any such trials where the US Stands against another State.

9 tickets to Guantanamo, please!

So glad of the Supremes to volunteer for this. I do hope they like Halal food... and they get to work on their tans...

As an extra bonus we can now officially declare war on al Qaeda and any other group or organization that has ever rhetorically declared war on the US since... oh... 1945 sounds about right.

This damn decision is so poorly worded and thought out that the above looks to be a valid interpretation of it. Unfortunately IANALOPOTV. Luckily the *real* law experts are also confused.

BTW - Preview makes this into one long sentence... I hope it does not come out that way. If so, my apologies!

Chester,

In following yesterday's decision and the insightful dialog regarding your post. I keep thinking of the end of one of the "Lethal Weapon" movies, where the villain kills lots of good guys and beats up Mel Gibson and Danny Glover and then once cornered states with arrogance and contempt, "Diplomatic Immunity!"

Of course, the good guys choose to ignore the statement.

Perhaps someone with photo shop skills might superimpose a picture of Justice Stevens or Breyer over the evil villain -- I bet they would love that.

Read the GC. The conventions do apply to all of our detainees, but the language is clear that they do not merit prisone-of-war status. Though they're most definitely not POWs, they are to be treated "humanely" and the ICRC must have access to all of them, thus no ghost detainees. This is a signed treaty, so we are beholden.

I am curious, Charles. Please cite from the GC where it states that the detainees, such as those at Gitmo, are protected by the GC. Thanks.

What is sad is that the Geneva convention specifically states that if an enemy is not in uniform, they can be shot on sight. Therefore, FOLLOWING the Geneva convention justifies treatment of terrorists much worse than we currently are.

When will the clueless American people figure out that there is an active fifth column in America, that sides with terrorists?

Chester wrote:

"Good point, but "good" or "evil" lie in the heart of the beholder."

Oh, so it's all relative, eh?

Would you agree that "good" or "evil" lie in the heart of the beheader?

Reductio ad absurdum.

q.e.d.

Well, Warren Buffet just agreed to donate $37 billion to philanthropy. Bill Gates donated $27 billion before that. George Soros supports far-left causes.

What if some multi-billionaire just got so offended with terrorists that he decided to donate billions towards hiring Blackwater-type mercenaries, or even an 'A-Team'-type group, containing snipers, language/disguise experts, etc? That could happen, and would be able to eliminate several key terrorists quickly, without the NYT and other treasonous media being able to even figure out what is happening..

Excellent discussion.

I want to second Dewage's observation, among others.

It strikes me that a viable option is to allow our military to invoke those portions of the Geneva Convention and Laws of War that recognize non-uniformed clandestine combatants as 1) outside the protections of the Convention, and 2) liable to summary execution.

Not that I would advocate that, but from my understanding, in a state and place of war, military commanders can take immediate action against those who perpetrate acts of sabotage and crimes against humanity without an outside judicial proceeding.

Lock them up until cessation of hostilities (they'll all die in captivity I'd bet), or turn them over to their native countries. For 95% of them, that would mean far worse than what we give them.

They are illegal combatants, plain and simple, and not entitled to GC protections.

full droolcup,

I believe it was the Liberal Avenger who made that comment.

Oops! My bad. Sorry, Chester.

Might be worse for all concerned! At what point in time does the unacknowleged new rule be,
Take no prisoners of this enemy in this war and above all, do not surrender.
This would put us firmly back to fighting the same war, the same way as it was fought during the Crusades.
No quarter.

Protocol I was rejected by the Senate & Reagan in 1987

While I recommend that the Senate grant advice and consent to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.'’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.

In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.

Sounds very familiar doesn't it? The Kelo-5 insisted the Geneva Conventions includes this very 'Protocol I' which was specifically rejected by the President and Congress 19 years ago.

So... did not the Kelo-5 quite simply lie, and in doing so:

"...undermine humanitarian law and endanger civilians in war."

"...give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology."

"...grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war."

Act to "endanger civilians among whom terrorists and other irregulars attempt to conceal themselves."

Grant "these groups legitimacy as international actors."

Support "the politicization of that law by groups that employ terrorist practices."

Apparently tiring of ignoring our protections guaranteed by the limits of the US Constitution with the inclusion of references to international law, the Kelo-5 have moved on to ignoring the protections of international law.

Chester,

What you are suggesting use to be done quite frequently albeit mostly on the high seas. Check out letters of marque and reprisal. It’s in the Constitution.

G. Mitchell,

I had forgotten about letters of marque and have never heard of reprisal. I'll investigate!

Just a no-nothing foreigner eavesdropping on your fascinating conversation.

Please preserve all this in some sort of archive. It's important that future generations understand how a nation strong and wealthy could produce so many citizens so enthralled by myth and legend that they literally don't know what hit them.

Yo, Joe. Just what "myth and legend" do you mean? And what "hit" us? C'mon man. Dee-tails. Or at least more *convincing* snark, svp.

I take it then, that, if I decide to secede from the union, and exact retribution for the continued efforts of the State to prevent or reject my secession, then I am protected by Geneva no matter what atrocities I commit -- that I receive its protections without the burden of obeying it?

Cool!

I'd ask a corollary question, then. If these people are protected by Geneva, then -- can they not, in addition to all the other charges, be tried for war crimes for violating the Conventions? Perhaps this is where the Bush Admin was maneuvering this decision? Hmmmmm?

I take it then, that, if I decide to secede from the union, and exact retribution for the continued efforts of the State to prevent or reject my secession, then I am protected by Geneva no matter what atrocities I commit -- that I receive its protections without the burden of obeying it?

Cool!

I'd ask a corollary question, then. If these people are protected by Geneva, then -- can they not, in addition to all the other charges, be tried for war crimes for violating the Conventions? Perhaps this is where the Bush Admin was maneuvering this decision? Hmmmmm?

I take it then, that, if I decide to secede from the union, and exact retribution for the continued efforts of the State to prevent or reject my secession, then I am protected by Geneva no matter what atrocities I commit -- that I receive its protections without the burden of obeying it?

Cool!

I'd ask a corollary question, then. If these people are protected by Geneva, then -- can they not, in addition to all the other charges, be tried for war crimes for violating the Conventions? Perhaps this is where the Bush Admin was maneuvering this decision? Hmmmmm?

> Just a no-nothing foreigner eavesdropping on your fascinating conversation.

Please preserve all this in some sort of archive. It's important that future generations understand how a nation strong and wealthy could produce so many citizens so enthralled by myth and legend that they literally don't know what hit them.

Thanks for stopping by. We appreciate learning that the sort of nonspecific, exceedingly vague and thus totally baseless and unrefutable attacks which are so commonly a tactic of The Left here in the USA are, in truth, common to all of those on The Left, regardless of nation of origin.

It is good to know that the same sort of muddleheaded thinking, so lacking in clarity of reason or starting point applies to the entire end of the spectrum and not only to some inherent flaw unique to the American Left.

Again, we appreciate your contribution.

Several commenters seem to think I'm advocating a privatization of the war. Nothing could be further from the truth. Private militaries are here to stay and figuring out how best to deal with them is important. But in no way do I think that completely outsourcing the war to them would be a good idea. See my comment above of June 29, 10:07 pm.

joe south,
we're all gentlemen here (and ladies too). If people of good manners can't cordially disagree about matters of great import, in order to come to some understandings about them, well, what's the point of manners in the first place? Do you think you'll be flamed for disagreeing with something that's here?

What is it you find so revolting? Do tell and we'll discuss. Otherwise, return to your neck of the internet and know you wasted the opportunity to speak with people who see things differently than you do.

Another little sidelight to this debate is the notion of avowal: common in the Middle Ages and before, when territories were poorly defined and could in fact overlap (the so-called Marches). In those areas, deciding which feudal lord you'd like to have as your temporary protector was a big decision. Avowal meant that you could, in effect, choose your jurisdiction and set of laws/customs. Hamdan feels (to this South Seas inhabitant, far away from the real action) like some sort of harking back to a 'pick your jurisdiction' era.