masinter at NOVA.EDU
Tue Dec 18 20:43:29 PST 2001
Without endorsing arguments whose factual premises I cannot test, I note
the following potential justifications, taken from reports of interviews
with John Walker, and presumably applicable to others who do not have the
benefit of U.S. citizenship:
Walker claims to have trained in the use of poisons. That hardly squares
with training to be a lawful combatant since the use of poisons or
poisoned weapons is a war crime.
Walker also claims to have been trained in the use of explosives, which
might (or might not) mean that he was trained in the use of explosives
that could not reasonably be expected to be used in combat, such as
explosives designed to fit within a cell phone or portable cd player.
Walker also claims to have been trained to avoid detection in airports and
in other similar places. One requirement for a lawful combatant is the
wearing of a uniform or other distinctive device that so identifies you
and is recognizable at a distance, per Hague IV, article 23(a).
None of the pictures transmitted with U.S. military clearance depict Al
Qaeda fighters dressed in identifying garb.
Michael R. Masinter 3305 College Avenue
Nova Southeastern University Fort Lauderdale, Fl. 33314
Shepard Broad Law Center (954) 262-6151
masinter at nova.edu Chair, ACLU of Florida Legal Panel
On Tue, 18 Dec 2001, Sanford Levinson wrote:
> I am genuinely confused as I listen to today's NPR story about the fate of
> captured members of the Taliban in Afghanistan. Among other things, Paul
> Wolfowitz (sp?) is heard suggesting that they might be tried by military
> tribunals (where the potential penalty, of course, is death). My genuine,
> completely sincere, confusion is this:
> 1. If they are prisoners of war, then by what right does the conquering
> power have the right to try any and all soldiers and, possibly, execute
> them, unless a serious argument can be made that particular soldiers
> violated the laws of war (for which execution is the appropriate penalty).
> I take it that almost no serious argument can be made that ordinary members
> of the Taliban are "war criminals" in this sense. That is certianly not
> the way we treated members of the German and Japanese armed forces after
> World War II. So what justifies our trying (and possibly executing) them?
> 2. One answer, of course, is that they're not really "prisoners of war,"
> but "really" members of a criminal conspiracy, more similar to the Mafia
> than, say, to the Wehrmacht. I can understand that argument, but, then,
> that undercuts the language of "war" that is so central to the
> administration's rhetoric. I take it, for example, that we would not try
> John Gotti as a "war criminal" because of the way he apparently treated
> those who opposed his expansionist ambitions. (There is an excellent
> article in the current Atlantic by Yale professor Michael Howard
> criticizing the use of the term "war" and suggesting that we would be
> better off adopting the term used by the Brits with reference to Malaysia
> in the 1950s or '60's, "emergency.")
> Can somebody help me understand how one makes sense of the juridical
> situation vis-a-vis the poor shnooks (certainly no worse, albeit perhaps no
> better, than German and Japanese schnooks captured at the end of World War
> II) we have captured in Afghanistan?
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