This story has been bothering me for weeks. Free Haleh! But how? How to pressure the Iranian government? Ideas?

"Opponents have warned that if not constrained by the courts, Padilla's detention could lead to the military being allowed to hold anyone who, for example, checks out what the government considers the wrong kind of reading materials from the library."

How can we risk any action at all with this kind of thinking hanging over our heads? The only viable strategy is to avoid all risky contacts and hide under the covers until it's either all over with or we're dead. Even posting here is violating that strategy. Ah, well.

What happened to the moral high ground?

Moral high ground? We don't need no stinkin' moral high ground.

The moral high ground is best used by snipers.

Clearly those who say there can be no common ground between Iran and the United States on matters of law are quite unfamiliar with the facts on the ground.

Just ask anyone held in Gitmo.

Do you people really think that legal protection in Iran is equivalent to legal protection in the United States, or is this just a nice opportunity for a nice round of "We suck?"

There's a stooge from the AEI who wrote an op-ed in yesterday's NYT that concludes:

If the Europeans are wise, they’d ensure that no discussion with the Iranians on any subject occurred without highlighting the plight of Mrs. Esfandiari. She indefatigably made European arguments about the need and effectiveness of soft power; they should just as indefatigably defend her.

Neither the Europeans nor the Americans will find any common ground with the clerical regime as long as Mrs. Esfandiari languishes in prison.
Until she is freed, it will remain clear that the [Iranian] regime understands nothing other than brute force.

No, it is an occasion for a round of `we suck now; let's do something about it.'

You don't have to join in; skip straight to the doing part if you want...

Synova at 7: generally speaking, "you people" does not go over well here.

Just sayin'.

No, Synova, I'm saying that the Repubs led by Bush and his cronies have reduced the US to the level of Iran. We don't suck. Bush and the Repubs and their wingnut enablers do.

Where is our moral high ground for objecting to Iran's actions?

Think about that.

Then do something about it.

I may not believe in predestination, but foreshadowing... I believe in foreshadowing.

#7, Nice vowels you have there. Would be a shame if anything were to happen to them.

What can we do? Clearly, nothing will get done via the normal diplomatic channels, since the diplomats (on both sides) are some of the people who got us to this position of mutual suckitude.

A lot of people who supposedly know something about the current situation in Iran say that there isn't a single power in the government setting policy for everyone; that there are a number of factions ranging from moderates who want to try to regularize relations with the West and especially the US, to stark raving crazies who are just waiting until they can prove that their nuke is bigger than ours. So maybe what the situation needs is some old-fashioned back-channel negotiation, where somebody without an official portfolio or a government axe to grind goes to Teheran and looks up a moderate in some position of respect and authority, and says, "Colleague, let's bargain."

It might be best if the person from the West was not a USian. Just now Britain and Iran seem to be in each other's rosy afterglow from managing to extricate themselves from that sticky hostage situation. So maybe a member of the Labour Party* who isn't one of Blair's cronies might be able to do it.

So, would anyone listen if the flourosphere got together and wrote a letter to somebody we think could do the job? Can anyone name a likely candidate?

* I may be showing my ignorance, but I just can't see a Conservative being willing to do it.

So it's not the moral high ground. It's a moral grassy knoll.

So maybe a member of the Labour Party* who isn't one of Blair's cronies might be able to do it.

Tricky. Of those who might possibly be candidates, most are maneuvering for positions in Gordon Brown's cabinet.

Uh, the Iranians are expected to release a suspected agent of an aggressive and hostile foreign power that has invaded their neighbors and is making repeated threats, including nuclear, toward them?

Right.

Thing is, if we're going to be world leaders we want the rest of the world to follow our example.

It's hard for us to object if they do.

Jon Meltzer said (#19):
Uh, the Iranians are expected to release a suspected agent of an aggressive and hostile foreign power that has invaded their neighbors and is making repeated threats, including nuclear, toward them?

You're making it sound as though the Iranians are somehow justified in what they're doing.

They're not. (Unless you think imprisoning people without charge and keeping political prisoners is acceptable behavior.)

And neither is anyone else who behaves like that, including the US. That's the point.

I suspect this has something to do with the number of Iranian diplomats that the U.S. imprisoned in Iraq a few months ago. I've seen nothing about charges or about release (?), implying that we are still holding them, which would make Ms. Esfandiari an unfortunate pawn in this particular game of chess.

Isn't it obvious that the U.S. is looking for reasons to malign Iraq..whoops..now it's Iran.

What irks me is the whole intentional mis-translation of the Iranian President's statement about "wiping Israel off the face of the map", when he actually said something more like the name Palestine belongs on the map instead of Israel in a non-military threatening way. A bit like Golda Meir's statement that there were no Palestinians. Which she clarified to mean that she didn't advocate killing them all but that they just didn't exist.

It's impossible for the U.S. to "police" the world when it's become a dirty cop (not to mention that historically the U.S.'s foreign policy had really sucked).

Unless you think imprisoning people without charge and keeping political prisoners is acceptable behavior.

It is in America. Why not in Iran, a country that has a real enemy threatening them?

If we're going to act like thugs, we have no business telling the rest of the world not to act like thugs; especially when, as Sky notes, we're looking for excuses to continue acting like thugs. Saying that one is "justifying the Iranian government behavior" is continuing that frame.

Hitting Iran would be a real bad idea. The majority of the Iranian people think that their president is a real nut case. The hardliners have very little support, but bombing Iran would swing the populace in their favor. Which is probably why that the hardliners in charge of the military and security organizations are poking and poking and poking, hoping to provoke us into a military strike.

ADM Fallon, the current CENTCOM, said there would be no war with Iran on his watch, which is probably why there has been more diplomatic talk-talk lately.

The economic situation there is very bad. Unemployment, especially among the young people, who make up the majority of the population, is catastrophic.

-- Alcohol is readily available in Tehran and in the other cities and towns. All you have to do is know who to ask.

-- Thirteen and fourteen year old girls are prostituting themselves on the streets of Tehran, desperate for money for their familites to survive. Women of college age are selling themselves in order to earn the college tuition which has not been forthcoming from the government as promised.

-- Hard drugs are being sold openly on the streets. The people think that this is because that the government wants to take the people's minds off the screwed up economy.

-- The Iranian government is terrified of their citizens having free access to information, so they ordered their Internet providers to gear down all connections to 128K and to jack up the prices to try to put it out of reach to the average citizen. Plus the religious police regularly go out on sweeps and confiscate satellite dishes. It doesn't work. They're back the next day.

-- The vast majority of the Iranian people like Americans. They want normal relations with America. It's a small group at the top that wants to keep the freeze on relations. The Iranian young people want to sample Western culture. They may reject certain aspects of this, but they want to make that choice themselves, and not have someone make that for them.

-- Corruption in Iran is worse than under the Shah (that says much). Ninety percent of the economy is state-controlled. That leaves lots of room for shenanigans. The majority of large companies are controlled by ayatollahs, their family members, or their friends from the bazaar merchants.

"Hitting Iran would be a real bad idea. The majority of the Iranian people think that their president is a real nut case."

[neoconservative selective information filter]
Ah, so we'll be greeted as liberators!
[/neoconservative selective information filter]

And I wish that were a joke.

I feel some sympathy for Synova @ 7 - Holding folks without charges is bad. But two wrongs don't make a right. Comparing this case to Padilla's, who for the record is now (finally) on trial with a real lawyer and charges feels like a cheap shot.

Padilla is an aberation in the US - my understanding is that this is business as usual in Iran.

I feel some sympathy for Synova @ 7 - Holding folks without charges is bad. But two wrongs don't make a right. Comparing this case to Padilla's, who for the record is now (finally) on trial with a real lawyer and charges feels like a cheap shot.

Padilla is an aberation in the US - my understanding is that this is business as usual in Iran.

Um, off topic, sort of, but just wanted to let you know that Wikipedian Admin Will Baebeck has removed a link to this blog from Teresa's Wikipedia entry on the basis that this is an "attack site."

It remains to be seen what planet the fellow is from, but I expect he'll be finding the Statue of Liberty half-buried on the beach any minute now.

See http://en.wikipedia.org/w/index.php?title=Teresa_Nielsen_Hayden&diff=133949439&oldid=127520705"

Kathryn @ 26

I guess he didn't like the discussion of Wikipedia and its moderators and admins.

I think he just proved Teresa's point for her.

He's making really really sure to prove Teresa's point over and over again. Will's reverted to his own version minus the link to ML. Twice.

he wants us all to be sure to understand what organ of the body he is.

Interestingly, I'm finding the way this was dealt with (swift intervention of a neutral third party) rather disproves some of the criticisms of Wikipedia.

It's still not somewhere I would spend my joy or my expertise (the bookbinding page's gaps and omissions notwithstanding), but it wasn't as bad as I feared it would be.

Chris @25 - It is true that the Iranians have scores of political prisoners were arrested this year in Iran, in addition to scores more arrested before. Amnesty also reports that at least a dozen were held without charges.

In contrast, the technically-Multi-National Force in Iraq has detained tens of thousands of people without charges. The US is deeply involved in the Iraqi court system.

Where's your boundary for "business as usual"?

Chris Gerib @ 25

Padilla is not the extreme case; as I understand it, the DOD, which administers Gitmo, has made it clear that a number of the detainees there have not been connected in any way with actual acts against the US: they're there because they were in the wrong place at the wrong time, and they won't be released because it would be somehow (manner unspecified) detrimental to National Security. Padilla gets his day in court, those guys probably never will.

An unfortunate fact of international politics that Amnesty International deals with daily is that getting political prisoner their rights depends on public indignation at their plight. This can happen, but the public only gets indignant about one out of every thousand cases (maybe even a lot fewer). So Padilla gets a lot of press while the other guys rot. Back in the 1980s Sakharov's treatment in Russia became a cause celebre because of his high profile and the political nature of his case; at the same time, many other dissidents were ignored by the same people in the West who were agitating for Sakharov's release.

Synova #7:

Jailing political prisoners, disappearing people without any kind of trial or access to the law, these things are wrong all around. Iran does them sometimes, and this is a good reason to think ill of their political and legal system. The US does them sometimes, although I think it happens much, much less frequently. But a lot of us are Americans, so we think we may be able to have some effect over US policies, whereas we suspect the Iranian government isn't too interested in our opinions.

Nobody ought to be jailing people without trial, holding people incommunicado forever, or torturing people. But I definitely expect better from my own country (and the rest of the first world) than from Iran, Syria, Saudi Arabia, or other theocracies/thugocracies.

FungiFromYuggoth & Bruce Cohen:

The distinction between Jose Padilla and the prisoners at Gitmo is that Padilla is a US citizen. This does nothing to excuse what's being done at Gitmo (or at US-run prisons in Iraq and Afghanistan), but it does suggest a limit, however fragile, to what the US government is supposed to do, at least to its own citizens.

Haleh Esfandiari is an Iranian citizen (and also an American citizen; she has dual citizenship), as are most or all of the Iranian political prisoners. Iranian citizens who protest their government's treatment of other Iranian citizens run a very real risk of suffering the same fate.

Fungi @ 30 and Bruce @ 31 - I have been continually disappointed and upset with US treatment of Gitmo "detainees." As you can read at my blog, I am no fan of Gitmo or this administration.

But as pointed out by Peter @ 33, they are not US citizens or residents, and were not arrested in the US. There is no automatic assumption that they get protected by the US constitution. Padilla, as a US citizen arrested 15 miles from my house, is a different story.

I'm also not much of a fan of the war in Iraq. I would point out that your article specifically states that the problem with Iraqi courts isn't that the US are running them, it's that they're f*#ked up. Not an excuse, but incompetence is not malice.

...incompetence is not malice.

Any sufficiently advanced incompetence is indistinguishable from malice.

We have sunk to the level of our opponents -- and maybe lower.

My country right or wrong, and right now it's wrong, wrong, wrong.

Chris @ 34

One of the problems we have now is that this administration says that the Constitution (and the rights it guarantees, some of which are limited to citizens) and the Geneva Conventions don't apply to anyone they consider an 'unlawful combatant', and they decide who is an unlawful combatant. Not the courts, not the UN: the President and whoever he delegates it to. There is nothing (AFAIK) preventing him from sending anyone in the US, citizen or not, to Gitmo, or anywhere else that serves effectively as a black hole. We don't know if any of the people at Gitmo are US citizens: what we know is what we've been told.

PJ Evans @ 37:

The Administration's claim about "unlawful combatants" has been partially challenged by the Supreme Court, in the case of Hamdi v. Rumsfeld, which involves the other (known) case of a US citizen held as an "unlawful combatant."

Yaser Esam Hamdi was captured by the Northern Alliance in Afghanistan, turned over to US forces, and transferred to Gitmo. When it was discovered that he was a US citizen (by virtue of birth in the US, though I believe he grew up and lived in Saudi Arabia), he was actually transferred out of Gitmo to a naval brig in Virginia, where he was (eventually) able to appeal his detention through the court system. Given that this transfer was done by the Pentagon on its own initiative, it doesn't seem very likely that they left other US citizens there.

The eventual resolution was that the US government made a deal with Hamdi whereby he renounced his US citizenship and was deported to Saudi Arabia. They did this as a sort of end-run around the obligation to formally justify his detention, which apparently they were reluctant to attempt.

(This is one of the vanishingly few cases where Antonin Scalia came across as more liberal than the rest of the justices, since he argued that -- in the absence of Congress officially suspending habeas corpus -- the government had no options other than formally charging Hamdi with a crime or releasing him. Clarence Thomas, not surprisingly, was the only justice who sided with the Bush Administration.)

Scorpio #36: There's always Carl Schurz's amplification and response: "My country, right or wrong: when right, to be kept right; when wrong, to be set right."

I know a couple who immigrated from Iran back in the 80's; the husband cannot return to visit his parents because he would be imprisoned for not meeting his mandatory military service requirement. His wife says that when she went there a few years ago, Tehran is as cosmopolitan as any European city, but the towns and villages are hotbeds of Islamic fundamentalist activity.

While a large part of the populace dislikes their government, an attack on Iran by the US would almost certainly result in widespread resistance and support for their leader. Our history in that part of the world is working against us, yet again.

Two people in ths thread have already mentioned Amnesty International; if folks here in the fluourosphere want to do something to help Ms. Esfandiari; they can probably get information from Amnesty International on how to write to the Iranian government on her behalf, and also on behalf of others. US citizens can badger their senators and representatives about restoring habeas corpus. Those who aren't USians can badger their own governments as appropriate, both as to their policy towards Iraq and their policy towards the US. It might be time for Bush to get more in the way of plain-speaking when he encounters foreign leaders.

Amnesty International/US
(Don't be put off because the first page asks for a donation.)

Amnesty International main site

I thnk AI includes instructions on how to write effectively; polite, direct, and concise is always a good plan.
US Senate

US House of Representatives

Tempting though it is to use the e-mail forms to contact senators and congressmen, I've been told over and over again that the most effective contact is a letter, mailed to the local office (they fax them to Washington from there) or faxed to Washington, followed by telephone calls, with e-mail a poor third. Be polite, but be plain and concise. Contact them early and often; they can't call you a nag to your face, because they want your vote so badly.

fidelio @ 41

e-mail a poor third

This may be true in general, my own experience is that twice in the last year I have sent emails to my Senators and Representative, and on both occasions received individual replies (in snail mail) from one Senator and the Representative. Interestingly, it both cases the holdout was the Republican, Sen. Gordon Smith, who may now be changing his policy, since he's opened himself up to electoral challenge by coming out against the current conduct of the war.

John@40: Our history in that part of the world, yes, but also just human nature. Imagine if the European Union decided that Bush was a war criminal, and invaded us to force regime change: don't you think that a lot of Americans would then be pulled into supporting him?

There is an online petition you can sign calling for Dr. Esfandiari's release. Also a petition for the release of Kian Tajbakhsh, another of the Iranian-American scholars being held in Evin Prison.

(The Guardian article I linked to also mentions a French-Iranian journalism student named Mehrnoushe Solouki who has been imprisoned, interrogated, and had her passport confiscated.)

I note that the administration is denying that there is any relationship between the Iranians holding Dr.Esfandiari and the Iranian diplomats being detained by the Americans, which I mentioned above. See NYTimes, this morning. Well, that's a relief.

Marginally related to this thread: an organization calling itself "Warriors for Innocence" has reported a slew of journals to Livejournal and SixApart for having particular words listed in their journal interests list. Unfortunately, while their intended target was pedophiles and the like, they managed to get almost as many rpg and fanfic blogs permanently deleted as they did journals actually espousing illegal activity. More information from some fic writers here and here.

#40 John:

I think this is almost always true. Nations tend to unite against a common threat/enemy, which is one reason why leaders often want to create or maintain one.

I think a lot of the discussion on this thread is assuming we're not trustworthy (true), but not that Iran is also not trustworthy. Diplomacy, international and national politics, and spying all involve a lot of lying. This isn't a new thing, and it isn't something done exclusively by the US (or Iran). Trying to figure out which side wears the black hats, and which the white, is an unrewarding exercise. It's very likely that the US and Iran are both lying through our teeth about all kinds of motivations, background reasons for doing things, plans, and facts.

Hm. I guess my comment @46 wasn't relevant at all. I could have sworn i was posting in one of the fanfic threads. Ignore it here, I'll try again there!

Peter @ #33 and Chris @ #34 - can you point me toward where Iranian law forbids what they have done to Haleh Esfandiari and other dissidents?

The US has signed the Geneva Conventions, which pretty specifically forbid a lot of what the US has done at Guantanamo (and as even this Supreme Court has pointed out). The US constitution clearly states that treaties are the law of the land, so (at only one level of indirection) the US constitution does, in fact, protect detainees at Guantanamo.

Incompetence and malice can be very difficult to distinguish, and at some point it really stops mattering which is which.

Imagine if the European Union decided that Bush was a war criminal, and invaded us to force regime change: don't you think that a lot of Americans would then be pulled into supporting him?

Tangentially, there's a cartoon of that very situation.

Rereading my post, I realized I'd misplaced my point.

To summarize:
1. I'm not convinced that the US is less morally culpable than Iran in prisoner-related activities. By volume and by severity (though not by kind), we can point to incidents in which the USG or its agents have outdone Iran.

Most notably in the "aggressive war" department.

The fact that torture and indefinite detainment has been mostly limited to brown noncitizens does not, in my opinion, diminish the severity of the situation one whit. There's nothing to stop this administration from detaining any US citizens they feel the need to detain, so one presumes the relatively unique nature of Jose Padilla reflects only a lack of motivation on the administration's part.

2. Legality is not morality. Even if it is legal for Iran to detain nonviolent dissidents, they should not (with or without charges). The same applies to indefinitely detaining some random schmuck sold to the US by Afghani hill tribes in winter 2001.

3. I am unpersuaded that persistent incompetence can be differentiated from malice. Picking a minor example, Bush asserted that the IAEA released a report showing that Saddam was six months away from developing nuclear weapons. Not only was such an assertion made, there wasn't even a report made in that timeframe, by the IAEA or other similar agencies.

Was this just Bush not knowing what he was talking about, or is it symptomatic of a tendency to lie his way out of awkward situations? I don't know.

FungiFromYuggoth @ 49:

This 2004 report by Human Rights Watch ("Torture, Detention, and the Crushing of Dissent in Iran") has numerous details of recent Iranian crackdowns and oppression against reformers and dissidents, including some notes on which treaties or parts of the Iranian constitution are being violated. E.g.

Iran is a party to the International Covenant on Civil and Political Rights (ICCPR), which prohibits arbitrary arrests and detentions. An arrest or detention is arbitrary when not carried out in accordance with the law, or if the law is itself arbitrary or so broadly worded as to allow arrest and detention even for the peaceful exercise of basic rights such as freedom of expression. In 2000 and 2001, many intellectuals, activists, and dissidents feared the Ministry of Intelligence, which was known for its links with plainclothes security agents ready to do the ministry’s bidding: pick up dissidents, search homes, and imprison activists and intellectuals in illegal detention centers—without judicial orders or on the basis of vaguely worded prohibitions.

Since 2000 the use of plainclothes security agents to attack critics of the government has taken on a more formal character. They are increasingly armed, violent, and use sophisticated communication and transportation equipment. Very few of the individuals interviewed have reported encounters with the regular Iranian police or Law Enforcement Forces [LEF]. We asked one writer if the uniformed police had worked with or attempted to stop the plainclothes agents who had attacked a group of students and others who had gathered to hear him speak, "The police?" he replied, "The police are afraid of these groups."

The same report notes that:

Iran’s constitution requires that the authorities submit provisional charges to the competent judicial authorities within 24 hours. As described above, detainees were held, often incommunicado and in solitary confinement, for long periods without being charged, in violation of the constitution and Iran’s obligations under international human rights law.

It also mentions that the Iranian constitution requires public trials, but that the "trials" for dissidents are rarely public, and goes on to say:

Under Iranian law, those convicted of a crime have the right to appeal to a higher court within ten days of notice of their conviction. In practice, however, many political prisoners never have the chance to appeal their convictions. They are told that if they appeal, they will be sent back to prison or additional charges will be brought against them. The politicization of the judiciary in Iran has led to a systematic denial of the last remaining mechanism for accountability for those imprisoned for their political expression or opinions.

(I've left out the footnotes specifying which articles of the Iranian constitution are being violated, but you can find them in the full report.)

It's not as apropos, but this Amnesty International page reports that "Even though Iran has signed up to international treaties that prohibit the use of the death penalty for crimes committed by those under the age of 18, there are reported to be at least 24 child offenders currently on death row in Iran, and four child offenders were executed in 2006 alone."

Now, I'm not sure what the implications would be if Iran actually had laws allowing this sort of thing[*], but for what it's worth, it's clear that the growing Iranian crackdown violates their own constitution and the treaties they've signed.

[*] If, tomorrow, the US withdrew from the Geneva Conventions, would you drop your opposition to what's going on in Gitmo and the US-run prisons in Iraq and Afghanistan on the grounds that the US was no longer in technical violation of the law?

FungiFromYuggoth - we've had this Geneva Conventions conversation on this site. Per the actual conventions, combatants are defined as: "members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war."

You could argue that terrorists aren't. Quoting from the same site (Society of Professional Journalists) "However, other individuals, including civilians, who commit hostile acts and are captured do not have these protections."

More importantly, under the Geneva Conventions, one can hold POWs UNTIL THE WAR IS OVER or they DIE. You can't try a POW except for war crimes. If you're upset about people being held without trial now, think about holding the Gitmo folks FOREVER.

I suggest that you visit this article about treating terrorism as a form of piracy. (Full disclosure - I discovered this article on this site).

If you've seen this discussion on this site before, how can you not know a status hearing is required first? If someone's going to say Joe Detainee isn't covered by the conventions, they're required to give him a chance to prove that he's not the brown guy they're looking for. This was the subject of a fair amount of controversy, not to mention poorly respected court decisions. (Last I heard, they were frequently repeating detainee hearings until they got the answer they wanted.)

Not to mention that some of the detainees at Guantanamo would like to be considered prisoners of war (as referenced in the Guardian link).

If all that it takes to pull someone outside of domestic and international legal protection is the unverified assertion of administration staff, how is that different from no protection at all?

FungiFromYuggoth @ 54 - I'll try to be clearer. I do not think that the US conduct in Gitmo is correct, fair or terribly effective in combating terrorism. I agree that the detainees are entitled to a fair and impartial status hearing. I would point out that there is no requirement in the Convention for such a status hearing. It assumes that people are either POWs or not.

However, I don't really care if a detainee "wants" to be treated as a POW or not. If the detainee has not acted in accordance with the Conventions, they're not a POW. The point of the Colonel's question in the hearing, presumably to determine status, was to find out exactly what the accused had done in Afghanistan.

Yes, the current administration has twice tried to pull US citizens out of the court system. Both times, rather then get their wrist slapped by the Supreme Court, they've put them back in the system. In this case, the administration's actions speak louder then their words.

I'm not sure what relevance Gitmo has to what Iran does to Iranian citizens in Iran. I'll go back to my original statement - two wrongs don't make a right.

You have six months to give them a hearing or release them. The hearing has to be in front of a duly constitution tribunal, in accordance with the Conventions, rather than in front of these kangaroo courts the administration has put together. We already have a legal system that can handle these cases; I just wish the administration would use it.

Robert Glaub @ 56 - I agree that we should give hearings to prisoners rapidly and fairly. The rules of the hearing should allow for a fair defense. The Uniform Code of Military Justice would be a suitable code.

Unfortunately, I'm not finding that requirement within the Conventions.

Chris Gerrib: Given the timelines in Afhganistan, there is a need for a status hearing, as the principle of levée en massse could come into play.

If they are not POWs, per the convention, the default status is that they become detained persons (with very specific rights, one of which is that they are, with the exception of regulations promulgated to protect the forces of the occupying/invading power, to be subject to the laws of the country in of which they were resident/are citizens).

To make them anything other than a detained person (which, as a rule, means they are common criminals, or spies) requires a status hearing, to show they are captive because they broke the law of the land/violated a regulation of the occupying/invading power, or that there is sufficient evidence to charge them with espionage, and then try them.

There is no such creature as, "an unlawful combatant" who is exempt from the protections of the Conventions.

It could be argued that the people who created such a category, to remove persons from the rights the Conventions afford them can be, legitimately, tried for war crimes, completely independant of any other treatments in violation of the Conventions (i.e. they could be living in the lap of luxury, put up at the Savoy, fed the foods of their choice; made to order, given 600 count sheets, allowed to speak to anyone they liked, etc., etc., but denied the right to the protections of the Conventions).

One's rights under the Conventions are absolute, they cannot be given up.

Terry, help me understand this. I'm not a lawyer, and my (brief) formal training in the Conventions was during my military service, years ago. I have, however, read the Conventions online, and from my reading of the Conventions one is generally either a civilian or a combatant. If one is a combatant, but doesn't follow the rules of war outlined in the convention, one does not qualify for POW status. (There is no definition of what one is, which is a problem.)

Back during my training, it was explained to me that if I as an officer did certain acts against the convention, I and people under my command could loose the protections granted by the convention.

Was this explained to me incorrectly? What am I missing? Again, we SHOULD provide hearings, and it's the right thing to do. My question is where and under what law are we *required* to do so in this case. People posting to this site make the argument that "it's in the Convention" without ever showing their work, so to speak.

Yes, it was explained to you less than clearly.

The Conventions are the part of my bible (that and the FM on Interrogation, which has been changed; so I don't have the number and title ready to mind) which matters the most, because they are what define war crimes.

I will quote the various portions of the relevant articles. All emphasis is added, unless otherwise indicated.

60. General Division of Enemy Population
The enemy population is divided in war into two general classes:

a. Persons entitled to treatment as prisoners of war upon capture, as defined in Article 4, GPW (par. 61).

b. The civilian population (exclusive of those civilian persons listed in GPW, art. 4), who benefit to varying degrees from the provisions of GC (see chs. 5 and 6 herein).

Persons in each of the foregoing categories have distinct rights, duties, and disabilities. Persons who are not members of the armed forces, as defined in Article 4, GPW, who bear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges attaching to the members of the civilian population (see sec. II of this chapter).

So everyone is either POW, or Civilian, when captured.

There is no third category, "unlawful enemy combatants," a person who engages in hostile acts, and fails to adhere the laws of war may lose of of his priveleges as a civilian, but none of his rights.

246. Protection of Civilians Generally
The protection of civilian persons is governed by both GC and HR, the former supplementing the latter insofar as both relate to occupied territory. Certain provisions of GC are applicable only in the territory of a party to the conflict, others to belligerently occupied territory, a number to both or to civilian populations generally. Those relating exclusively to occupied areas appear in chapter 6, while the requirements of GC having to do with the territory of a belligerent or with both such territory and occupied territory or with the general protection of civilian persons are set forth in this chapter.

247. Definition of Protected Persons

a. Treaty Provision.

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

The provisions of Part II are, however, wider in application, as defined in Article 13.

Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered as protected persons within the meaning of the present Convention. (GC, art. 4.)

b. Interpretation. Subject to qualifications set forth in paragraph 248, those protected by GC also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.

248. Derogations

a. Domestic and Occupied Territory.

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case such persons shall nevertheless be treated with humanity, and in ease of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be. (GC, art. 5.) (See also par. 73.)

There are those who say this applies to those at Gitmo, but note that this applies to persons in "occupied territory." The battle space operates under different rules, mostly because the job of those in the battle space is to affect the security of the hostile power.

So, we have two categories of people; broadly speaking.

Combatants, who may be entitled to POW status, with all its priveliges; or who may not be so entitled, and lose some of those privileges.

Protected persons. Protected persons may be interned, or imprisoned (should they violate the laws of the occupied territories, or threaten the security of the occupying power), but there are more severe restrictions on what may be done to them

266. General

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. (GC, art, 27.)

267. Danger Zones

The presence of a protected person may not be used to render certain points or areas immune from military operations. (GC, art. 28.)

268. Responsibilities

The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred. (GC, art. 29.)

269. Application to Protecting Powers and Relief Organizations

Protected persons shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them.

These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations.

Apart from the visits of the delegates of the Protecting Powers and of the International Committee of the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate as much as possible visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons. (GC, art. 30.)

270. Prohibition of Coercion

a. Treaty Provision.

No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.b. Guides. Among the forms of coercion prohibited is the impressment of guides from the local inhabitants.

271. Prohibition of Corporal Punishment, Torture, Etc.

The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents. (GC, art. 32.)

272. Individual Responsibility, Collective Penalties, Reprisals, Pillage
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

The only thing we can claim, vis-a-vis Geneva, is that the present gov't of Iraq, and the Taliban, aren't signatory.

Though our claim that we aren't an occupier, but rather there on the sufferance of the Iraqi Gov't muddies the waters. It could be claimed we are holding people (from Iraq) at the behest of their own government, and so they fall outside the Conventions completely.

We haven't, however, done this. Rather we have declared a war on a non-state. This is problematic, because non-states can't be party to treaties.

There are other laws which prohibit torture, one of them is U.S. law, and it makes torture, no matter where done, or at whose behest, a war crime; capital if the victim should die.

Terry - thank you for explaining this. Too much of this conversation (in general, present company excepted) has been uninformed shouting matches.

Chris Gerrib: What conversation? This one here, at Making Light?

Not to be, too, snarky, but if this is what you think of as a shouting match, you ain't been in the same conversations I have about the Geneva Conventions (inluding at least one, in person, where I was the one doing the shouting, in a semi-coherent foaming at the mouth kind of way.

Here's the short story on torture, and all the other suff this administration has said about it's ideas on the Conventions.

It's morally wrong. Full stop, end of story.

The utilitarian take: It doesn't work.

The political take: It makes us a pariah in the eyes of the civilised world, and costs us the moral high ground (tattered though it may have been) we used to be able to claim.

So no matter how one looks at it, the whole thing is a bad idea.

Everything else is smoke and mirrors to justify horror.

Terry, I've seen a number of screaming matches as well on Gitmo and the whole "War on Terror" thing. This thread is not a screaming match.

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All spam is for the birds.