Hi, John, good to hear you popping in. The thread has declined since your absence.
I got the latest issue of FA last night, and didn't notice Steve's article. I did, however, read the article on the law concerning treatment of prisoners on the WOT. Unfortunately, for the first time, I have some rather severe (for me) criticism.
The author is highly biased, is apparently not a trained lawyer, though he cites a few cases that support his thesis. He doesn't cite a pertinent 1950 Supreme Court decision, Johnson v. Eisentrager, on which the Ninth Circuit's dissenting judge properly relied in blasting his colleagues for allowing AQ prisoners the full panoply of rights.
The law, as presently interpreted, properly in my view, is that an enemy combatant captured and imprisoned overseas cannot invoke US rules on due process because the territorial reach of the federal courts does not allow them to provide him with any relief. This is absolutely clear from Johnson v. Eisentrager.
The author doesn't even mention the case, a huge hole in his argumentation.
caselaw.lp.findlaw.com
The author of the FA article also proposed a three-part test for determining whether aliens who are not part of a "war" should be given the full Geneva Conventions treatment that is a bit vaporous. The first two prongs of the test are fine (organization into combat plus a finding that the individual is a part of the effort) but the third, whether there is available "law enforcement" to deal with the individual is--tb will perhaps pardon me--ridiculous for its difficulty in implementing. A lawyers' dream of a test.
Merry Christmas to you. |
