Whatever. They have a large audience of people who consider themselves well-informed, and this kind of shift matters.
I also heard them refer to the people jailed at Guantanamo Bay as "prisoners", instead of "detainees". Once.
I don't listen (I don't even own ...), but if this is the case, it is indeed a good thing. Just this past May Andrew Sullivan and Glenn Greenwald highlighted how infuriating the hypocrisy of the NYTimes was on this subject (When China did it in Korea, torture; when we did it, not so much. Exact same techniques.)
There were no scare quotes. They were talking about Khalel Sheik Mohammed, and whether or not his confessions were tainted because he was tortured. The question was the timeline, not whether or not he was tortured. They said things like "Prosecuters will assert that he admitted his part in 9/11 before he was ever tortured, and thus this particular testimony is not tainted. However, during trials of other Guantanamo detainees, prosecutors will be forced to explain that that portion of Mohammed's testimony was achieved under torture."
In my ideal world, KSM will be acquitted due to inadmissibility of evidence collected through the use of torture, and then, when he is walking out of the court house, a free man, he will get run over by a bus.
Well, it's critically important that we as a country call it torture. I'm not so sure NPR saying it is critically important in shaping the narrative.
In my ideal world, KSM will be acquitted due to inadmissibility of evidence collected through the use of torture, and then, when he is walking out of the court house, a free man, he will get run over by a bus.
Could happen, if it's part of God's plan.
I had a little private moment of rage again this morning when NPR reminded me that the "war crime" Omar Khadr is accused of committing was throwing a grenade at an enemy soldier.
Remember, when a robot shoots a missle at a house that is suspected to contain an enemy of the US, it is just war. But when one of their guys throws a grenade at one of our guys, it is a crime.
NPR saying it is critically important in shaping the narrative.
Actually, I think it is just the right institution to shape the story. Wars these days happen when liberal hawks buy into them. You can always count on the right to support a war. You need to convince the center left that it is a humitarian intervention. US war crimes pretty much kills the idea that we are working to benefit the occupied nation.
11: Yeah, that pisses me off every time I hear it too. If that guys a War Criminal, then so are the Wolverines.
12: Wars these days happen when liberal hawks buy into them.
In Peter Galbraith's case, literally.
The host used the word torture, but the reporter was clearly uncomfortable and tried to used the word enhanced interrogation. She used the word torture sparingly and reluctantly.
It was not a great piece.
NPR has been pissing me off. Yesterday, they had horrible Ft. Hood coverage. very anti-muslim.
13: What kills me is people who are called terrorists for fighting for the Taliban in 2001. The Taliban was running the damn country. They were the government. Nazi soldiers were soldiers, not terrorists, and the same rules should apply.
Nazi soldiers were soldiers, not terrorists, and the same rules should apply.
Nazi soldiers were white, LB. There's a difference.
tried to used the word enhanced interrogation
There's a special circle of Hell, just for that.
If that guys a War Criminal, then so are the Henry Kissinger should be tied down and torn to ribbons by Wolverines.
Have any Americans been charged with "War Crimes" since the start of hostilities? All I can think of was Lynndie England, who was convicted of "maltreating detainees." I'm not sure if that counts.
18: a circle where they use enhanced damnation techniques.
tried to used the word enhanced interrogation
Good lord.
One thing that has struck me about the Fort Hood coverage is how comparatively little we've heard about other recent killing sprees - specifically the guy who went off in an exercise class, and the guy who killed the Amish girls.
21: with significant temporal extension.
What kills me is people who are called terrorists for fighting for the Taliban in 2001. The Taliban was running the damn country. They were the government. Nazi soldiers were soldiers, not terrorists, and the same rules should apply.
I generally hate getting bogged down in the semantics of "terrorist," but the general thrust of this argument would seem to exclude the very idea of "state terrorism." If we're going to have the designation, then I think it should get applied on the basis of the nature and aims of certain kinds of political violence, rather than institutional status of the actor. Firebombing Dresden or dropping Argentine dissidents from helicopters into the River Plate would seem to fit the terrorist bill, even if they're done under the auspices of a sovereign government.
I think the Bush administration's attempt to carve out a legal limbo for non-state actors has muddied the issue in ways that we shouldn't accept.
25: While there's a point there, I don't think it has much to do with what I'm talking about with Taliban forces in 2000. If people in the employ of a government shooting at combatants are terrorists, we're paying salaries for an awful lot of terrorists in green suits in Afghanistan and Iraq. I can see a reasonable position that 'there is no moral distinction between war and terrorism' -- if that's what you're saying, it's a respectable position to hold. But if that's not what you're saying, it's still bullshit to call someone fighting for the Taliban in 2001 a terrorist rather than a soldier.
25: LB's point really wasn't about the term "terrorist," which is probably hopelessly confused. The point is simply that international law accords a different status to people who are acting as a part of a state military force. In particular, the Geneva Conventions apply.
26: Right, that's why I said "the general thrust of your argument," rather than the specific claim about the Taliban. As for whether we should apply "terrorist" to any given Taliban, it would be based on what he was doing. If he's just taking up arms against the United States as an invading army, then no, that would not seem to merit the label. If he was setting off bombs in civilian population centers in Kabul because they were under the control of non-Taliban authorities, then he would.
27: That's what I was getting at with the last sentence of my previous post. The Bush administration's attempt to create a label for people who don't get the Geneva conventions has sort of framed the semantic debate. Yes, under those terms, uniformed soldiers aren't "terrorists," but I don't think it's particularly helpful to think in those terms.
I noticed the change this morning too.
I'm not so sure NPR saying it is critically important in shaping the narrative.
I think it's an important step. At least, I think NPR's practice of NOT saying it up to now, i.e. using "enhanced interrogation techniques" and similar such b.s. instead, played an important part in shaping the narrative the wrong way.
28: I think a much better set of terms would be "crimes" and "war crimes." If a non state actor commits an act of violence off of a battlefield, it is a crime and criminal proceedings apply. If the action is on a battlefield or under state sanction, it is potentially a war crime and a different set of rules apply.
We should just lose the word terrorist altogether, and work for rule of law.
8 I think that that would be a huge win for the pro-torture camp. There's not much question the guy is guilty, of 9/11 let's remember. I strongly suspect that all that would lead to would be outrage at the the courts not allowing torture. Of course if they did allow torture related evidence it would be even worse. But I suspect we have plenty on KSM without the torture stuff so the point is probably moot.
re: 30
That was the conventional [and legal] situation prior to the Bush/Blair muddying, I believe? No?
It's about time we started calling tough torture techniques what they are.
27 The Genevan Conventions do allow for a distinction. They are very heavily biased in favour of state actors. There's a whole set of special privileges that prisoners belonging to state militaries get, that non-state ones don't. Though under the Genevan rules the Taliban in 2001 would have qualified as a state, since then probably not. Still, what's always amazed me is that the Bush-Cheney folks were so blinded by the ideology of unilateralism that they didn't exploit what the Conventions allow. To give one example, they could have executed anyone involved in attacks on US troops in the period before Iraqi sovereignty. There's a whole lot more there, give them a read and pay attention to the loopholes.
31
8 I think that that would be a huge win for the pro-torture camp. There's not much question the guy is guilty, of 9/11 let's remember. I strongly suspect that all that would lead to would be outrage at the the courts not allowing torture.
It might turn out to be a Phyrric victory for the anti-torture camp, but calling it a huge win for the pro-torture camp is overstating things. In that instance, the court would have accurately applied existing law and precedent that conservatives don't happen to like. It would be a loss for torture supporters. Whether that would galvanize the pro-torture conservatives or not, and more importantly whether it would galvanize them more than either anti-torture hawks or genuine doves, is hard to say.
My head-desk moment this week came reading this:
"It's premature to reach conclusions about what motivated Hasan," Lieberman said on "Fox News Sunday" this morning. "But it's clear that he was, one, under personal stress and, two, if the reports that we're receiving of various statements he made, acts he took, are valid, he had turned to Islamist extremism."
Lieberman said if the shootings were fueled by such viewpoints it was the worst act of terrorism in America since the attacks of September 11, 2001.
Right. Because Islamist extremism = terrorism. Thanks, almost-Vice-President Joe!
Obama is a war criminal. I want him impeached;I want him to stand trial in the Hague. Compared to the horror of having a war criminal controlling the largest military in the world, what happens to KSM et al is not significant.
What a citizenry is morally required to do when its civilian and military leadership are active aggressive war criminals currently committing crimes against humanity is probably illegal to discuss in the United States.
Has there ever been a time when a war criminal didn't control the largest military in the world?
Um, war crimes perhaps, but crimes against humanity? And that link is about using military tribunals, that's not even necessarily a war crime.
What a citizenry is morally required to do when its civilian and military leadership are active aggressive war criminals currently committing crimes against humanity is probably illegal to discuss in the United States.
You see, I just don't get that. You're outraged against war crimes but implying that violent revolution is a good idea. Yet I can't think of a single one that didn't involve war crimes by the revolutionaries. So what do you suggest, a revolution against the war criminals, immediately succeeded by another one against the new guys in power, followed by yet another one, and on and on and on?
When we use quantity of degree to rationalize war crimes and atrocities ("he is just covering up torture, he is killing fewer women and children, he didn't start the wars he is stuck with") we become totally complicit in his crimes, and wide open to their vast expansion "next time."
When you look at Obama on your television, and Pinochet and D'Aubisson and Stalin and Hitler and Pol Pot come immediately to your mind, because a "matter of degree" is utter corruption, then that is the baby step to regaining integrity.
A baby step, because the first step is saying such things publicly, so the second step of convincing the Int'l community to try and hang Obama becomes possible, and the third step, of doing what it takes to get that done. becomes imaginable.
Philosopher kings, TKM. If only George Bernard Shaw were still alive.
You're outraged against war crimes but implying that violent revolution is a good idea
You are always making this leap. There are obviously many possible steps between doing nothing and violent revolution which should be tried first.
My position is that ruling out violence at the beginning (or not having violent allies and associates as Gandhi and MLK did) makes real negotiation and change impossible when you are dealing with a violent opponent. Others disagree.
Except that those folks don't come to mind. And what international community? Brown, Sarkozy, and Merkel? They're all part of the war. Or is it maybe Putin or Hu Jintao. How about Castro or Ortega? Are we going to hang them all? And this would improve things?
43 On the whole I'd say the decision not to seriously punish the ex-leadership in the East Bloc worked out pretty well. Fun fact, the folks who argued against mass criminal prosecutions in Poland explicitly drew on Spain's successful transition to democracy; those on the other side thought of Franco as a hero.
But first:
Where did I read that, FDL, I think, 16 Predator strikes against Afghani villages, with 261 civilian casualties, targeting one supposed terrorist kingpin...is a war crime, and Obama is a war criminal.
27
... The point is simply that international law accords a different status to people who are acting as a part of a state military force. In particular, the Geneva Conventions apply.
Only if they are in uniform. The WWII German saboteurs landed by submarine were not treated as POWs. See here.
Bob, just as a heads up, for consistency shouldn't you be calling for the hanging of all living ex-presidents? (And lots of other people, of course.) Calling for just Obama to be hanged is confusing.
47: Only if they are in uniform.
Not exactly -- the conventions don't deprive soldiers of their status as such if their government can't supply them with uniforms. Carrying arms openly as part of a state military force is enough, even if you haven't literally got a uniform.
I think that reading assignment (Geneva Conventions) is something you should get on. You will quickly find that killing civilians is not in and of itself a war crime.
48 They need identifying marks as well.
40.last: It kills me that people are still acting like there's any kind of consistency to mcmanus's arguments. Jesus, he's been trolling for how many years now, and people still keep biting?
Right. And of course it's not just state actors, resistance movements fighting openly either with uniforms or some distinctive mark get the same status.
48:I make a distinction of priority between crimes past and crimes currently being committed, with a reasonable expectation of future crimes by the same actor.
50:I read the relevant Hague sections on the bombing of civilian areas several years ago, in connection with Fallujah. In short, the bombing of civilian areas in the hope of hitting a military target is a war crime, opposed to the bombing of military targets with collateral civilian casualties.
It is of course arguable whether the Predator strikes are war crimes, and war leaders are always able to find advocates, especially when they are popular and charismatic and talk pretty. IMO, some of the Predator strikes are Hague violations.
53 They have to belong to one of the 'Parties to the conflict' with 'Party' defined as a state actor. The provision was intended to cover the situation of resistance movements in WWII which had ties to governments in exile. As I read it you can make a case that the Taliban's former state status carries over, but you can also make a decent case that it doesn't. But IANAL.
Incidentally, and more on topic, I oppose the trial of KSM and co-conspirators, on the matter of jurisdiction. Whatever crimes (conspiracy?) KSM may have committed, I doubt that they were committed in the United States.
If he is accused of committing War Crimes he should be tried in the relevant Int'l Tribunal, as Milosevic was.
In general the fairness and impartiality of the supposed "victim" nation should always be questioned. I would not have GWB tried by an Iraqi court.
resistance movements fighting openly either with uniforms or some distinctive mark get the same status.
Yup, that's the rule. And it strikes me as very wrong that they put the burden of knowing this on 15 year-olds in Bumblefuck, Afghanistan, when soldiers of a imperial power from the other side of the planet have shown up in their town.
When you hire someone for murder, are you tried in the place where the murder occurred or where you hired the person?
I suppose it is important to understand, for legal purposes, that most of the Gitmo detainees>/a>
were not Afghani natives.
We let >a href="http://en.wikipedia.org/wiki/Dasht-i-Leili_massacre">General Dostum deal with many of the Afghani, Uzbek, and Pakistani Taliban.
I have a vague sense (and I'm really not an expert in this sort of thing) that the 'distinctive mark' requirement isn't terribly tight -- that the idea is really that you have to be visually distinguishable from the local civilian population rather than attempting to blend in, not so much that everyone in your resistance movement has to have matching armbands. Here's an article on it which seems to generally accord with what I recall.
59:I'll repeat, that most of those picked up and sent to Gitmo were not natives of Afghanistan, I presume partially to vitiate many of the objections people are talking about in this thread.
Now as to whether the Saudis (or more challenging, Pashtun Pakistanis) in Afghanistan during the American Invasion were legitimate Taliban or Afghani combatants, or whether they were so considered by the Taliban leadership or were internally considered al-Qaeda merely affilated with the Taliban...is complicated.
Spell out what makes your country of origin important, in what context? I'm not sure what you're talking about.
62:Ma jref="http://en.wikipedia.org/wiki/John_Walker_Lindh#Trial">John Walker Lindh for example, who confessed to being a "soldier to the Taliban" and was convicted of "supplying services to the Taliban". If there is no difference, could we have charged all Taliban fighters with aiding and comforting the Taliban?
You and terza were talking about "resistance movements", I presume pertaining to fighters captured by Americans etc on Afghani battlefields, and whether they should be considered terrorists, or state actors out-of-uniform, presuming the Taliban was a legitimate state.
As I said most of those sent to Gitmo were not natives of Afghanistan, and so questions could be raised as to whether they were "defending their homeland" or whatever. I presume this was a factor in the decision about whether a given detainee should be sent to Gitmo vs Bagram. IOW, "nation of origin" was used, perhaps disingenuously, to distinguish Taliban from al-Qaeda in many cases.
I don't understand what you don't understand, unless you wanted to keep your discussion at a very high level of generality.
Not doing well with tags today.
48 They need identifying marks as well.
I think that once you've hung an ex-President, tattooing "War Criminal" on him is just gratuitous.
not so much that everyone in your resistance movement has to have matching armbands.
If I can't have matching armbands, I won't join your revolution.
63: I might be wrong about this, but I don't think country of origin has any legal effect on your status as a combatant. If John Walker Lindh were fighting as part of a qualifying resistance with the matching armbands and all that, I don't know of any reason that his not being a native Afghan would change his entitlement to be treated as a POW. Possibly you know something I don't, but I'm not seeing it.
Well, heck, apparently the entire Taliban has been designated a "terrorist organization" so there are no legitimate resistance fighters in Afghanistan who need to treated according to the Geneva Conventions. Just criminals and terrorists.
And we have determined, with John Walker Lindh, that crimes committed in Afghanistan can be tried in the US.
Eh. I can't figure out when you're talking about what you think the current state of international law is, and when you're being sardonic about what the US has done and claimed to be legal. I give up.
68:I don't know of any reason that his not being a native Afghan would change his entitlement to be treated as a POW. Possibly you know something I don't, but I'm not seeing it.
Right. JWL is doing 15 years in Federal Penitentiary.
I am sorry to be so confused as to his status as a POW.
And we have determined, with John Walker Lindh, that crimes committed in Afghanistan can be tried in the US.
Which is why nobody says, "What happens in Afghanistan stays in Afghanistan."
70:the US has done and claimed to be legal.
Fine, a start.
So the trial, conviction, and imprisonment of John Walker Lindh is a violation of the Conventions and Int'l Law, and JWL should be released and treated as a POW?
Is this also true for KSM etc?
Was designating the Taliban a terrorist organization, when it was our primary combatant in the nation we were invading, also a violation of Int'l Law?
See, keeping this at such a level of generality when there are specific cases does not seem very useful. We are very very far down the road from worrying about armbands.
70: IF WE ACCEPT THAT THE VERY NOTION OF "INTERNATIONAL LAW" IS A FICTION AND HIDEOUS PARODY OF REAL LAW USED TO REINFORCE THE POWER STRUCTURE, THAT WILL BE THE FIRST STEP TOWARD FINALLY USING INTERNATIONAL LAW TO GO AFTER THE POWER STRUCTURE.
So, I must've missed something, why are you not calling for violent revolution, bob? I think prosecutions under the Smith Act are probably unlikely, and as long as you don't mention veganism, you're probably safe from the AETA. Just how is it that any president is going to act differently from Obama? This was where I was confused in the run-up to the election as well. Do you seriously think Hillary Clinton or John Edwards would be doing anything substantially different on this issue? With what political capital? (Although, it has to be said, if Edwards had won, and the affair & baby had come to light, and he'd been forced to resign, leaving his presumptive Veep pick, Barbara Mikulski, as President, that would have been different.)
75:So, I must've missed something, why are you not calling for violent revolution, bob?
Are you trying to recruit me? Or entrap me?
I'm afraid I am not getting the "everybody else is doing it, or would if they could, so STFU" argument. Sorry.
74:Thank you.
A corollary:IF WE ACCEPT THAT THE VERY NOTION OF "LAW" IS A FICTION AND HIDEOUS PARODY OF JUSTICE TO REINFORCE THE POWER STRUCTURE, THAT WILL BE THE FIRST STEP TOWARD FINALLY GOING AFTER THE POWER STRUCTURE.
73: What's confusing me is that you seem to be trying to convince the people in this thread that the US has violated international law all over the place. And of course we have -- you're not going to get much disagreement there from this crowd. No one's joining in calling for Obama's head because that's simply not going to happen, so what's the point?
No one's joining in calling for Obama's head because that's simply not going to happen, so what's the point?
That never stopped us when it came to Bush!
Well, with Bush we had the goal of getting rid of him in favor of someone who would commit fewer war crimes. None seemed out of reach, but fewer. And we got that: bad as he is, I'm pretty sure that we're torturing/detaining fewer people under Obama than we were under Bush, and releasing at least some of those imprisoned before. Aiming for someone who would commit still fewer, or none, would be great, but I don't see a plausible route to it. But that seems like a useful conversation, if anyone had any ideas. Hang him! Hang him! not so much.
81: Yeah, I agree with this. Also "Hang Obama" is mostly being said by people with the exact opposite point of view -- that he's showing too much respect for human rights and international law.
Note the shift and subject change from 68-73 to the abstractions and ad hom of 79
I do not consider 79 a good faith response to 73.
to the abstractions and ad hom of 79
Goddammit, I called you a troll all the way back in 52. I'm starting to feel underappreciated here.
I'm holding my head sideways and squinting at 79, looking for the ad hominem in it. Not working.
And I feel absolutely no need to defend the utility of calling out ongoing war crimes, violations, and abuses. There are organizations beloved by us all entirely dedicated to that project.
Those organizations do not as a rule point out the culpable by name or call for consequences or punishment, because, among other reasons, they believe that becoming involved in local politics would make them less effective.
However, as an individual in a state that is committing the war crimes, my position is necessarily different, and I do believe that a dis-affection for, detachment from, and de-sentimentalization of Our Awesomest Leader is probably the first and necessary step toward reducing the atrocities.
Political efficacy is never my first consideration when morally outraged. Sorry.
85:Aww, LB, if you felt it, it was there.
Do I have to translate or deconstruct it?
79.1:You are stating the obvious, boring and pointless
79.2:No one is bothering with you
79.3:You are being ridiculous
Now as a response to 73, going upthread to find demonstrations of absurdity does not strike me as an answer to my questions about John Walker Lindh, KSM, or the Taliban as terrorist organization, which at the time of 73 were on point of ongoing discussion of "enemy combatants" but does look like an attempt to distract from the questions by discrediting the interlocutor. Ad hom in intent.
I certainly am used to it. Josh thinks he gains points with this crowd by simply jumping in and calling me "troll."
68
... If John Walker Lindh were fighting as part of a qualifying resistance with the matching armbands and all that, I don't know of any reason that his not being a native Afghan would change his entitlement to be treated as a POW. ...
His being an US citizen and presumedly having a duty of loyalty to the United States makes a difference.
Dismissing someone's arguments out of hand may be irritating, but it is not ad hominem, unless the reason given for dismissing them is something about the person advancing the dismissed arguments, rather than something about the arguments themselves.
Josh thinks he gains points with this crowd by simply jumping in and calling me "troll."
Validation! Thanks, bob!
88: That seems like a valid point, James.
Do you have a response, bob?
88: The thing is, Bob, I'm not sure if you want to have a general rant about Obama and Bush before him committing war crimes, which they both certainly have done, or if you want to have a finicky conversation about details of international law. The details thing is dependent on the exact facts of each thing we're talking about -- like, if you wanted to talk about Lindh, I'd have to look up what exactly were the circumstances of his arrest, and look up some law I don't remember perfectly.
89:So check out 79 as a response to 73. 79 in no way addressed the arguments of 73, so could not be said to dismiss them, unless by implication, and had three sentences with the subject "you." (One implied, "No one's joining (you))"
Now all personal attacks are not ad homs, but I think it is fair to use proximity.
"All roses are red."
"Here is a white rose."
"Did you just fart?"
91:My response is that I try my best to not interact with Republicans.
96: I'm shocked at you, Bob -- implying that it makes sense to let the war-criminal Democrat organization off the hook like that.
Many of the Kossack-libs
Those who favor the liberation of Ukranian horsemen do have interesting ideas, but I don't think it's fair to just start talking about their daddies like that.
Getting back to 14: what the flying fuck was Galbraith doing, and how the hell did nobody catch onto his tens of millions-dollar personal stake in the constitutional makeup of Iraq? At the very least, this should be the end of his public career. Ideally, there would be some sort of public corruption case against him. Worst case, his personal greed could undermine the legitimacy of what fragile Iraqi legal framework exists. It's just staggeringly stupid. (And here I thought myself past shock with this shit.)
Kobe isn't pleased with Galbraith, either.
Lindh pled guilty. He was very unlucky wrt timing. If his trial had come up a couple years later, after the hysteria (and after the Hicks deal) the plea deal he was offered would have been much better. And the government would have been a lot more scared of the evidence coming out.
Plenty of ways for a non-Afghan to end up in GTMO, as Omar Abdulayev, Fouad al Rabia, or Murat Kurnaz can tell you. Or the Yemeni kid who's offense was owning a Casio watch.
If I hear/read one more conversation about uniforms, I'm going to scream. What uniform was Omar Khadr supposed to be wearing? Hozaifa Parhat?
Charlie, any thoughts on the legal stuff brought up in this thread? You presumably know the legal arguments quite well.
101
Lindh pled guilty. He was very unlucky wrt timing ...
Or perhaps he had lousy lawyers.
And we have determined, with John Walker Lindh, that crimes committed in Afghanistan can be tried in the US.
bob, if obama is a war criminal, he could be tried in the US, right? and doesn't that necessarily mean that crimes committed in afghanistan can sometimes be tried in the US?
104:bob, if obama is a war criminal, he could be tried in the US, right?
In practical terms, no he can't.
I am a big fan of the ICC, and related organizations and ideas. I think it is time for law to be fully internationalized and democratized so that jurisdictional disputes become irrelevant and immaterial.
TKM, I really only know the issues presented in my cases. We filed a motion for a preliminary injunction to stop violations of the Third Geneva Convention -- which, we argue, apply to our client (a civilian refugee) absent adjudication to the contrary -- and had some interesting sparring with the government. The prison has been run in blatant violation, and the assertions of compliance bad faith of the most dishonest kind. (Even the dramatic improvements of the last 3 months don't bring the particular facility into full compliance, much less those that have improved a lot less).
Of course, we have to get through all the jurisdictional crap, including judges (and a DOJ) who want to follow a footnote in Eisentrager (a travesty of its own) rather than the explicit commentary from the drafters of the conventions that replaced those at issue in Eisentrager.
They could (and should!) let my guy go, and then we'd be arguing about CORYER I suppose.
Our judge actually came up with the cleverest work-around on the self-executing issue. We have a winning argument on this already, I think, but his was diabolical: because Congress didn't delegate any authority to the President wrt this war other than that which is inherent in the common law of war, then a President's violation of the common law of war is a separation of powers issue, which would render a detention that is illegal under the Third Convention a constitutional violation.
Some of our briefs on this are not under seal: drop me a line if you're interested.
As I think about it, you don't have to write me. We had decent coverage on scotusblog. March, April, May.