Look, I hate the ideas of the likes of Yoo and Feith as much as anyone. I'm not here to put forward all their legal opinions as correct. I'm simply saying that, legally, either the GCs apply to a situation or they don't. Claiming that they apply when they don't is simply incorrect and sloppy thinking.

I put forward the argument that the GCs themselves don't directly to apply to our conflict with al-Qaida (although they do apply to us in our armed conflicts with other countries). Just because the GCs do not apply DOES NOT mean that there isn't some OTHER law, international or otherwise, that DOES apply! I'm saying that you are simply pointing to the wrong law!

The only possible way that I see that the GCs apply to our conflict with al-Qaida is when we are in armed conflict with another High Contracting Party (CA2). Since we are not, then pointing to the GCs as governing law today is simply incorrect.

Even if we still were in conflict with another HPC (like we were recently in 2002 and 2003 in Iraq and Afghanistan), GCIV explicitly says if captives are not nationals of the opposing HPC, then GCIV protection doesn't apply.

The only possible coverage the GCs could provide would be CA3 and would depend completely on the interpretation of the clause "not of an international character." If CA3 was meant to be binding at all times and under every circumstance of armed conflict, then why was this dependent clause added? Why doesn't CA3 instead simply say:

"In the case of armed conflict occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following:"

and why doesn't CA3 precede CA2 to reinforce that it takes precedence and governs ALL situations of armed conflict for HPCs?

You've admitted that wiping out a city because someone tried to kill you is a disproportionate response. What you don't seem to understand is that wiping out civilians en masse is always a disproportionate response.

I completely disagree. It would have been completely proportionate, although no less immoral, for the Japanese to have fire bombed all US cities (if they could have) after how the US treated mainland Japan in WWII.

A proportional response is basically along the lines of an eye for an eye. What it precludes is a life for an eye.

My previous post is talking about proportional actions as they were defined in the pre-modern era.

Modern law updates proportionality as part of military necessity and basically says incidental civilian damage cannot be clearly excessive relative to military advantage gained in a military attack.

Actually, sloppy thinking is when you decide about all prisoners taken based on their affiliation - viz. al Qaeda. If a prisoner is a civilian, and is taken in the war zone, and is a citizen there, they are entitled to GC4 protections. If they are a combatant, to GC3 protections. Exactly what protections are to be determined by an Article 5 hearing. Before that hearing is held, or if it is not held, they are afforded treatment due to either civilians or to prisoners of war.

A prisoner taken not on the battlefield, not in the war zone, not fighting, is not a GC issue. Such a prisoner has to be charged with a crime, they have to be extradited, and they cannot be held under GC for the "duration of conflict". BTW, that last situation applies to Khalid Sheikh Mohammad, who was captured in an apartment in Karachi, and is a Pakistani citizen.

If the U.S. wants to conjure a circumstance where he is a war prisoner, he becomes a civilian, in which case his deportation is illegal, and his status for release needs to be evaluated every 6 months. Declaring someone whatever is convenient to evade the law is not legal behavior on behalf of the U.S. government.

I get fairly upset when I think of KSM, because he was talking before the torture to FBI agents, and a squeaky clean case could have been built and brought against him with an iron clad conviction.

A question to the President Elect

How will you remove the stain on our Constitution left by the failure of this Congress to honor their oath of office to protect and defend the Constitution in the face of so many carefully researched and well documented violations of trust and law attributed to Bush, Cheney et al?

The Constitution does not empower Speaker Pelosi to take impeachment "off the table". The repudiation of Bush's impeachable actions through the constitutionally mandated process of impeachment is the only way to demonstrate to our children, future Presidents and the world that our system of government establishes a nation of laws that works for all the people.

This work left undone is a corrosive so dangerous to the fundamental ideals of our democracy that it undermines the very oath of office taken by every elected officeholder.

Personally, I find no motivation to work for a political party whose leadership and whose elected representatives found insufficient devotion to the Constitution to use its mandated procedure, impeachment, to remove the President as well as the Vice President whose actions in office have been more reprehensibly impeachable than those of any administration in our history.

It would have been completely proportionate, although no less immoral, for the Japanese to have fire bombed all US cities (if they could have) after how the US treated mainland Japan in WWII.

You're right---I was sloppy. What I meant is that targeting civilians for what soldiers do is always something beyond proportion (there are always more civilians than soldiers), and I agree that "immoral" is the correct word for it. Which has been my argument all along.

I'm with Glenn. The level of ethical fairness for not being criticized for whom you defend would seem to be the fact that everyone who violates the law must be provided legal counsel. Therefore, defending even the most heinous law breaker must fall to someone. Law is designed to be a faceless process. It becomes a personal one out of inevitability and necessity.

You're welcome to slap my hand off the mouse for that pompousity. I only had one semester of law school. It was great fun reading all the posts.