Yoo Ruling Upholds Definition of ‘Enemy Combatant’

David Meir-Levi writes and lectures on Middle East topics, until recently in the History Department of San Jose State University.


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It is important to recall that modern regulations dealing with the treatment of war prisoners are based on the Third and Fourth Geneva Conventions, and these conventions did not envision issues related to the asymmetric terrorist warfare in which the USA and much of the Western world are now engaged. According to these conventions, to qualify for prisoner of war status and the protections provided therein, the prisoner must have been a lawful combatant when taken prisoner, engaged in lawful acts of war, wearing a recognizable uniform, part of a chain of command, openly bearing arms, and serving in the armed forces of a “high contracting party” (i.e., one of the states that signed the treaties enacting the Geneva Conventions).  Most terrorists share none of these characteristics, and al-Qaeda is not a “high contracting party.”  Moreover, there is no time limit to detention for a prisoner of war.  Prisoners are exchanged when the war is over, in accordance with the terms of the peace treaty. So even if terrorists were protected by the Geneva Conventions, terrorist prisoners may be legally detained for the entire course of the war until al-Qaeda and the USA sign peace treaties.

By denying Padilla the right to sue Yoo, and declaring that he has the status of an enemy combatant and not that of a common criminal, the court has in essence declared that the United States is indeed at war, was so in the days following 9/11 when al-Qaeda and its affiliates attacked, and continues to be at war with an enemy that has not agreed to the West’s laws of war and does not respect them.

This decision diametrically contradicts Obama’s un-enunciated Doctrine of “engage and negotiate even while they are blowing us up.”  This decision validates the assertions of many of Obama’s critics, who say that we are at war, we are under attack, and our Commander-in-Chief is trying to resolve this by glad-handing our attackers.

When the Japanese bombed Pearl Harbor, we did not send the FBI to arrest the Japanese pilots (the Clinton Doctrine) nor did we try to engage Japan in constructive conversation about how to address their grievances (the Obama Doctrine).  We recognized that Japan had declared war on us, and we retaliated with an offensive that brought Japan to its knees and won the war.

Osama bin Laden, his surviving al-Qaeda leaders, the now numerous al-Qaeda off-shoots and affiliates in the Maghreb, central Africa, the Sinai, Saudi-Arabia, Iraq, Syria, and Afghanistan, all are waging a brutal and savage terror war against the USA in particular and against Western civilization in general.  They do not wage this war in conformity to Western norms and conventions, nor are they amenable to treaties, compromises, engagement, or negotiations.   As their leaders have said numerous times, they wage this war against “global un-belief” (that’s most of us) until all the world is Muslim or at least under Muslim sovereignty, no matter how long it takes. Theirs is a triumphalist apocalyptic vision in which their terrorist jihad against the non-believer hastens the coming of the end times and ultimate Muslim victory and redemption.

This being the case, it is irrational for our nation’s Commander-in-Chief to preen and posture while doing nothing substantive, or worse, to commit military force and billions of dollars to countries in league with al-Qaeda.  Rather, it is incumbent on him to muscularly lead our forces in addressing expeditiously this existential, asymmetric, non-traditional, but still very military threat, in the most effective way possible.  He, with the full force of American military might behind him, must make clear to this intractable enemy through word and deed that we have the power to destroy their ability to harm us, and we will use that power to do so.

If he continues to dither, hope for change, appease, ingratiate, or grovel, he emboldens our enemy to greater aggression and more savage attacks.  If our Commander-in-Chief is not up to the challenge, he should be replaced.

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  • Larry

    The Military Tribunals should have one role, and one role only – deciding whether or not the prisoner is a legal or illegal combatant.

    If legal, incarceration for the duration, if illegal, up against a wall and shot.

    End of story. That's what actual, real, international law says.

    • sedoanman

      This is actually two things.

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        Perhaps, but they both work for me.

  • Bilovisso Sanspoul

    ‘Obama’ Is NOT “Commander in Chief”. He is a criminal usurper, who deserves only to be arrested and killed.B

  • Chris Gleason

    This is encouraging news. However, please correct me if I'm wrong, but isn't the 9th Circuit Court the same one that has been so liberal in its decisions? If so, what happened?

    • sedoanman

      Yes. What happened? That's a good question.

      • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

        They get overturned on appeal more than any other appeals court.

  • glee

    appease, ingratiate, or grovel? Our bowing, confrontation avoiding, stumbling, winking, waitinig until after the election, blowing with the wind ninny? Is that our President for eight more months?

    • http://www.youtube.com/watch?v=nLNn2YflwNs Roger

      Perhaps he'll find a new and challenging golf course to stay busy for most of that.