Tuesday, September 19, 2006

Unlawful Combatants And The Law

Photobucket - Video and Image Hosting
Muslim translation of the Geneva Convention

The Liberals have used one phrase over and over to criticize any action President Bush takes to protect Americans from Islamic terrorists. “If we do (whatever President Bush suggests), the terrorists will have won.”

For instance, if President Bush wants “unlawful combatants” treated as unlawful combatants, the terrorists will have won. Why will the terrorists win? Because we are not giving unlawful combatants the protection of the Geneva Convention, even though the Geneva Convention does not give them its protection, in that the unlawful combatants are neither signatories to the Geneva Convention, nor do they extend its protections to any prisoners they hold.

Perhaps, the Liberals may suggest, the terrorists really should be treated as criminals – when captured, they should be given all the rights afforded an American citizen through the United States criminal justice system. Such an approach would impose a legal system on a battlefield. Probably, as a minimum, there would need to be a body of laws to enforce. If the unlawful combatants, i.e., combatants captured in Afghanistan who were not wearing uniforms, and were not part of a national military, were treated as criminals, whose criminal laws would apply? Afghanistan’s? The United States’?

I am guessing that Liberals wouldn’t be satisfied unless there was International Law, which brings me to the next consideration. What is the enforcement agency for violations of international law by unlawful combatants? The United States military? What rules of evidence will apply? Probably as a minimum a chain of evidence would have to be maintained. Of course the soldiers who made the capture would have to testify, and be subject to cross examination by defense counsel. Further, unless there was testimony from crime scene investigators and forensics experts, I doubt if the testimony of soldiers not trained in proper police procedures would stand up before an experienced defense lawyer.

How was probable cause determined? Just because you find someone carrying an AK-47 on a battlefield doesn’t mean he was going to use it against you. And if he did, he probably was frightened by all the soldiers and only fired it in self defense. Would testimony from American soldiers be necessary to prove that the unlawful combatant intended to kill or injure an American?

“Of course not,” Liberals might say, “you can’t be so legalistic on a battlefield. Adjustments in legal procedures would be made.”

Oh yeah? What will the International Criminal Court say about that? Wouldn’t they have jurisdiction? It’s either that, or the United States (the world-wide left would never stand for that), or an Afghan government that didn’t exist when the crimes took place.

It only took five years to try Slobodan Milošević, whose death in prison before a verdict was rendered was an act of mercy which saved the International Criminal Court further embarrassment. Legal experts had already faulted the court for a lack of modern jurisprudence, and the prosecutor for having little or no evidence to support his case. Now multiply the International Criminal Court workload by many hundreds, the witnesses and evidence by many thousands, and all parties to the trials would be dead of old age before any verdicts were rendered.

I’m sure there are thousands of legal experts out there who will tell me how wrong I am about the proper way to handle legal procedures involving unlawful combatants. I suppose they are the same legal experts who were so critical when the United States did not endorse the International Criminal Court.

I eagerly await their learned comments.

Photobucket - Video and Image Hosting

Ann Coulter wonders "Are Videotaped Beheadings Covered by Geneva?"
Dafydd on Big Lizards and John on Power Line note that Senator McCain had President Bush sign a bill into law two years ago covering the treatment of terrorists, but now wants to give the terrorists even better treatment. I guess Senator McCain feels that this will make the terrorists continue to treat prisoners they hold humanely - you know, no dull knives for beheadings.

No comments: