Tag Archive | Armed Forces

RELEASE OF DETAINEES FROM GUANTANAMO BAY CUBA

While Doing Research on Enron, in 2006, an article in the New York Times was published January 2001, “The Inspiration,” Afghanistan’s Appeal As a War Zone.  These 1200 Detainees were captured before September 11, 2001; before President George W. Bush, became President of the United States; before United States invaded Afghanistan.  President George W. Bush had passed the Detainee Treatment Act of 2005, which caused many of the professors at Yale, Harvard and New York University to file Amicus curiae briefs in the Federal Courts.  The President George W. Bush, wanted to try the detainees by Military Commissions at Guantanamo Bay Cuba and did not want to present indictments, he knew he lacked jurisdiction.  The President lacked jurisdiction to try the detainees, who were captured and detained at Guantanamo Bay Cuba.  Margaret Chisholm, Reference Librarian at Yale Law Library, had encouraged me to complete my “Report” on the release of the detainees. Margaret Chisholm had said the members of the House had passed the bill the day before and the Senate had also passed the Detainee treatment Act of 2006, on September 28, 2006, and she suggested that I complete my “Report”  before President George W. Bush was to sign the bill on the weekend.  My “Report” was completed on September 29, 2001 and faxed at 4:00PM to Senator Arlen Specter, Chairman of the Committee On The Judiciary.  President George W. Bush didn’t sign the Detainee Treatment Act of 2006 on the weekend as a result of my “Report” questioning his jurisdiction. 

The President had changed the name of the bill to the Military Commission Act of 2006, also known as HR 6166, and signed into law on October 17, 2006.  There was criticism of Section 7, Section 7.1 Claims the Military Commission Act is an unconstitutional suspension of Habeas Corpus, Section 7.2 Claims the Military Commission Act an unconstitutional ex post facto law, Section 7.3 Protections from criminal and civil prosecutions for previous instances of alleged torture, Section 7.4 Other claims Military Commission Act is a violation of human rights.   http://www.defenselink.mil/releases/2005/nr20051107-5078.html

“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants.  Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.  Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for an act which render their belligerency unlawful.  Hague Convention No. IV of October 18, 1907, 36 Stat. 2295 Article 1 of the Annex to which defines the persons to whom belligerent rights and duties attach, was signed by 44 nations.  See Ex parte Quirin, 317 U.S. 29-30 (July Special Term 1942) See footnote 7.”

“Authorities on International Law have regarded as war criminals such person who pass through the lines for the purpose of (a) destroying bridges, war materials, communication facilities, etc.”  “As we have seen, entry upon our territory in time of war by enemy by belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and warlike act.  It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents.”  Ex parte Quirin ID at 37.  “By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.” ID at 37.”     http://laws.findlaw.com/us/317/1.html

UNLAWFUL ENEMY COMBATANT (BELIGERENT) Under the laws of nation and the laws of war, Article 15. When the enemy has orders in his hands from his commander, to attack our infrastructure, destroy our facilities that produce weapons to defend ourselves, and means of communication, and then travels surreptitiously to our borders, arrives on land, and takes off his uniform, by taking off his uniform he is in violation of the laws of war and the laws of nations.  He is Unlawful, an Unlawful Enemy Combatant (Belligerent), if he is captured, he is to be tried by Military Commissions, providing the Article III Courts are closed, Martial law and rebellion is in existence in the territory of the courts.  The President is empowered by the United States Constitution to suspend habeas corpus.

LAWFUL ENEMY COMBATANT  The lawful enemy combatant in accordance with the laws of nation and the laws of war, is the same soldier who has orders in his hands; to destroy the infrastructure, destroy the facilities which produce the weapons to protect ourselves, and the means of communication, however, when he  arrives on our shores, he leaves his uniform on, “carry arms openly” and “have a fixed distinctive emblem.”  He is a lawful belligerent; if he is caught he is treated as a prisoner of war.  In accordance with the laws of nations and the laws of war; when he leaves his uniform on and has fixed distinctive emblem, he is a lawful enemy combatant.         http://laws.findlaw.com/us/71/2.html

 

“Our Government, by thus defining lawful belligerents entitled to be treated as prisoners of war, had recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear “fixed and distinctive emblems.”  and by Article 15 of the articles of War, Congress has made provision for their trial and punishment by military commission, according to the law of war.”   http://laws.findlaw.com/us/317/1.html
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