February 16, 2007
Horse 720 - Unlawful Combatants
People are trying to convince me somehow that due process was followed through when applied to the detainees at Guantanamo Bay. I made the comment that if someone could prove otherwise that I'd eat my hat.
David Hicks is one such person who has been held there without charge. The terms of being an "Unlawful Combatant" were actually held to be invalid when the US Supreme Court ruled against the US Government in the case of Hamdan v. Rumsfeld (2006) in which it was held that the terms of imprisonment "violated both the UCMJ and the four Geneva Conventions."
Deeming people as "Unlawful Combatants" is fairly tricky since there is no real oversight within US Law or International Law. What is to stop someone from flying through the US, detained and declared as an unlawful combatant, thrown to who knows where for interrogation purposes? The answer still seems to be shrouded in hand waving and other mysterious "trust us" assurances. Can you really blame people who look at this scheme as a "lock them up, we'll invent the excuse later" kind of thing? The current administration plays fast and loose with things here which shouldn't be exactly applauded but that is all off topic.
Unlawful Combatants do not fall under the UCMJ, the Geneva Convention, nor the US Code. They are foriegn nationals whose countries deny any association with them. Logically it follows then that they are being held without authority. Since the term "Unlawful Combatant" is also unknown in international humanitarian law under whose authority are they incarcerated under?
This I think is quite an important point. In the wake of this the Military Commissions Act of 2006 was passed in order to "bring to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."
Yet the act is being applied retrospectively. In the case of Hicks, he was sold to the US Special Forces in 2001 some five years before the act. The US administration has not alleged Hicks engaged in any actual acts of terrorism, nor that he killed any U.S. or Coalition soldier, so therefore is not being held as a POW but under a piece of legislation that did not exist at the time or under a set of terms that violated the US Constitution and the Geneva Conventions.
Suffice to say, I have written to my Federal MP Louise Markus which I expect will precisely nothing, since she has never responded to any letter I have ever sent - that's democracy for you isn't it? And since she's a member of the Liberal Party in theory supports the Australian Government's standpoint.
I have also written to the Prime Minister's Office which I also expect will do nothing because he personally supports the US Government on this.
Just as an aside, the following is the first Article of the United Nations Convention Against Torture
1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Torture has been alledgedly used on the Unlawful Combatants in Guantanamo Bay. Quite frankly this makes me sick. The fact that this exists tends to make me think that there are some truly evil people running the world.
Posted by Rollo at 12:56