Let's talk about the election

[Roguish Lawyer]

Originally posted by Airbornelawyer
Apples and oranges in this case.

The applicable international laws, in this case the Third Geneva Convention (Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949) and the Fourth Geneva Convention (Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949), apply to states. The First Amendment applies against the state. The U.S. government does not have First Amendment rights and non-government actors, in this case the media, are not parties to the Geneva Conventions.

It does get more complicated if you were to change the facts though. If Fox were to start running a reality show called "When animals attack ... enemy detainees", the government might try to censor such a program in the name of the Conventions' duty to protect the detainees "against acts of violence or intimidation and against insults and public curiosity." Fox might scream First Amendment violation. I doubt they would win, but not because the treaty trumped the Constitution, but rather because the First Amendment is not absolute, and fulfilling the Convention's goals would be a compelling government interest.

If the government tried to enforce a blanket prohibition on media coverage of prisoners on the grounds of the Geneva Conventions, it might lose though. The Supreme Court has recognized that while a treaty might impact the exercise of a Constitutional right (see, e.g., Missouri v. Holland, 252 U.S. 416 (1920)), it cannot take them away. Reid v. Covert, 354 U. S. 1(1957) ("This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."). See also De Geofroy v. Riggs, 133 U.S. 258 (1890):

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

F'ing lawyers. LOL

[Bill Harsey]

Airbornelawyer, Are the Iraqi prisoners in question here subject to the Geneva Convention laws? They are not uniformed combatants. Does this make a difference?

[Bill Harsey]

Oops, posted out of sequence (knifemaker...) RL, Same question as I asked Airborne.

[Roguish Lawyer]

Originally posted by Bill Harsey
Oops, posted out of sequence (knifemaker...) RL, Same question as I asked Airborne.

I know very little about international law, so I have to defer to my esteemed colleague. Sorry, Bill.

[Solid]

My research skills have been very poor for a while (some my say forever). I need to get back on the ball.

Thank you very much, AL, as always.

Solid

[The Reaper]

Originally posted by Bill Harsey
Airbornelawyer, Are the Iraqi prisoners in question here subject to the Geneva Convention laws? They are not uniformed combatants. Does this make a difference?

In Iraq, AFAIK, we are currently housing combatants, war criminals, terrorists, suspects, subjects, and criminals, or combinations thereof.

Some are protected by the GC, some are not, and some are protected by other laws.

All have human rights.

TR

[Bill Harsey]

Reaper, Very clear answer, especially the last line. Thank you, Bill

[Airbornelawyer]

As with pretty much anything in the military, actions regarding enemy detainees (the catch-all covers lawful combatants, common criminals and the other categories in between) are governed by law, regulations, orders and SOPs. The relevant ones are:

1. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949

2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, 12 August 1949

3. Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949

4. Geneva Convention Protocol Relative to the Status of Refugees, 1967

5. Geneva Convention Relative to the Status of Refugees, 1951

6. Geneva Convention for the Protection of War Victims, 12 August 1949

7. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949

8. Uniform Code of Military Justice and Manual for Courts Martial

9. DoD Directive 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other Detainees, 18 August 1994 (updating DoD Directive 5100.69, DOD Program for Prisoners of War and other Detainees, 27 December 1972) - pdf format

10. DoD Directive 5100.77 DOD Law of War Program, 10 July 1979 - pdf format

11. STANAG No. 2044, Procedures for Dealing with Prisoners of War (PW) (Edition 5), 28 June 1994

12. STANAG No. 2033, Interrogation of Prisoners of War (PW) (Edition 6), 6 December 1994

13. AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, 1 October 1997 - pdf format

14. AR 190-47, The Army Corrections System, 15 August 1996 - pdf format

15. AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties, 12 March 1993 - pdf format

16. AR 27-10, Military Justice, 6 September 2002 - pdf format

17. AR 715-9, Contractors Accompanying the Force, 29 October 1999 - pdf format

18. FM 3-19.40, Military Police Internment/Resettlement Operations, 1 August 2001 - html format

19. FM 3-19.1, Military Police Operations, 22 March 2001 - html format

20. FM 3-19.4, Military Police Leaders' Handbook, 4 March 2002 - html format

21. FM 3-05.30, Psychological Operations, 19 June 2000 - not approved for public release

22. FM 33-1-1, Psychological Operations Techniques and Procedures, 5 May 1994 - not approved for public release

23. FM 34-52, Intelligence Interrogation, 28 September 1992 - not approved for public release

24. FM 19-15, Civil Disturbances, 25 November 1985 - html format

25. Coalition Joint Task Force 7 (CJTF-7) FRAGO #749, Subject: Intelligence and Evidence-Led Detention Operations Relating to Detainees, 24 August 2003

26. 800th MP Brigade FRAGO #89, Subject: Rules of Engagement, 26 December 2003

27. CG CJTF-7 Memo: CJTF-7 Interrogation and Counter-Resistance Policy, 12 October 2003

28. CG CJTF-7 Memo: Dignity and Respect While Conducting Operations, 13 December 2003

29. 205th MI BDE, Interrogation Rules of Engagement, unknown date

[Roguish Lawyer]

Originally posted by Airbornelawyer
As with pretty much anything in the military, actions regarding enemy detainees (the catch-all covers lawful combatants, common criminals and the other categories in between) are governed by law, regulations, orders and SOPs. The relevant ones are:

1. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949

2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, 12 August 1949

3. Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949

4. Geneva Convention Protocol Relative to the Status of Refugees, 1967

5. Geneva Convention Relative to the Status of Refugees, 1951

6. Geneva Convention for the Protection of War Victims, 12 August 1949

7. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949

8. Uniform Code of Military Justice and Manual for Courts Martial

9. DoD Directive 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other Detainees, 18 August 1994 (updating DoD Directive 5100.69, DOD Program for Prisoners of War and other Detainees, 27 December 1972) - pdf format

10. DoD Directive 5100.77 DOD Law of War Program, 10 July 1979 - pdf format

11. STANAG No. 2044, Procedures for Dealing with Prisoners of War (PW) (Edition 5), 28 June 1994

12. STANAG No. 2033, Interrogation of Prisoners of War (PW) (Edition 6), 6 December 1994

13. AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, 1 October 1997 - pdf format

14. AR 190-47, The Army Corrections System, 15 August 1996 - pdf format

15. AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties, 12 March 1993 - pdf format

16. AR 27-10, Military Justice, 6 September 2002 - pdf format

17. AR 715-9, Contractors Accompanying the Force, 29 October 1999 - pdf format

18. FM 3-19.40, Military Police Internment/Resettlement Operations, 1 August 2001 - html format

19. FM 3-19.1, Military Police Operations, 22 March 2001 - html format

20. FM 3-19.4, Military Police Leaders' Handbook, 4 March 2002 - html format

21. FM 3-05.30, Psychological Operations, 19 June 2000 - not approved for public release

22. FM 33-1-1, Psychological Operations Techniques and Procedures, 5 May 1994 - not approved for public release

23. FM 34-52, Intelligence Interrogation, 28 September 1992 - not approved for public release

24. FM 19-15, Civil Disturbances, 25 November 1985 - html format

25. Coalition Joint Task Force 7 (CJTF-7) FRAGO #749, Subject: Intelligence and Evidence-Led Detention Operations Relating to Detainees, 24 August 2003

26. 800th MP Brigade FRAGO #89, Subject: Rules of Engagement, 26 December 2003

27. CG CJTF-7 Memo: CJTF-7 Interrogation and Counter-Resistance Policy, 12 October 2003

28. CG CJTF-7 Memo: Dignity and Respect While Conducting Operations, 13 December 2003

29. 205th MI BDE, Interrogation Rules of Engagement, unknown date

But which of these provide a private right of action under international law? Or is there such a thing?

[Airbornelawyer]

Originally posted by Roguish Lawyer
But which of these provide a private right of action under international law? Or is there such a thing?

There is (probably) no private right of action under customary international law. There would have to be a statutory basis. But because of Johnson v. Eisentrager ("a nonresident enemy alien has no access to our courts in wartime"), I don't know if an enemy detainee would have standing to bring suit in Federal court even where the court has subject matter jurisdiction under 1331 (Federal questions) or 1346 (US as defendant).

[Bill Harsey]

AirborneLawyer, I'll take your response as meaning yes, Iraqi non uniform combatants are both subject to and covered by the Geneva Conventions.

[The Reaper]

Originally posted by Bill Harsey
AirborneLawyer, I'll take your response as meaning yes, Iraqi non uniform combatants are both subject to and covered by the Geneva Conventions.

Not exactly.

IIRC, in order to be entitled to the GC POW/combatant protections, combatants must:

1. Wear a recognizable uniform.

2. Have a responsible Chain of Command.

3. Adhere to the GC themselves.

I think they are missing some key elements to be ENTITLED to the protections, but we may choose to AFFORD them the protections, whether they are entitled, or not.

TR

[Bill Harsey]

Reaper, Thanks.

[Roguish Lawyer]

Originally posted by Airbornelawyer
There is (probably) no private right of action under customary international law. There would have to be a statutory basis. But because of Johnson v. Eisentrager ("a nonresident enemy alien has no access to our courts in wartime"), I don't know if an enemy detainee would have standing to bring suit in Federal court even where the court has subject matter jurisdiction under 1331 (Federal questions) or 1346 (US as defendant).

Is this also true in international courts like The Hague or whatever it's called (you can see how much attention I pay to these things)?

[Bill Harsey]

Ok, what I've learned here is that this could be more complicated than what the cartoon version of the news (networks) tells me.