Thursday, November 09, 2006

Is there a lawyer in the house?

I'm trying to put one of the Guantanamo cases in perspective by considering a bunch of hypotheticals. Suppose for a second, that there is no war on terror and no war in Afghanistan. The existing conflict is over and something like the current Karzai government is in charge.

Case 1: A Canadian national kills an American national on Afghan soil. Where is the trial held?

Case 2: A Canadian national kills an American soldier on Afghan soil. The soldier is stationed lawfully in Afghanistan. Where is the trial held?

Case 3: Just like case 2, except we now remove the assumption that there is no war in Afghanistan. Instead assume there is combat, authorized by congress, but no declared war, and still no bullshit rhetoric about a war on terror. Where is the trial held?

Case 4: Just like case 3, except add that the Canadian national is believed to have been working with the enemies of the US in Afghanistan. Where is the trial? Is the Canadian now simply a prisoner of war, to be held until hostilities are over?


C.A. said...

I'm not a lawyer, but I my guesses are:

1. Afghan. unless extradited at the request of the U.S. govt.

2. Afghan. unless extradited to U.S.

3. Martial law? Or Afghan. law.

4. martial law (if not in uniform etc.), otherwise p.o.w.--if a taliban regular otherwise, I think martial law.

a) The citizenship of the killer is largely irrelevant I think.

b) Unless the U.S. has occupied or is actively engaged in warfare, Afghan. courts should have jurisdiction (except there is probably some significance to who captures the prisoner, if the U.S. then perhaps they could remove them to U.S. jurisdiction, but I'm not sure on that. Once the prisoner arrived on U.S. soil they would be arrested I think. I think that the C.I.A./special forces have kidnapped suspects and brought them to the U.S. for trial before the recent rendition programs. The guys who did the first wtc bombing I think were grabbed either by us or someone like the pakistan intelligence people and then brought here for trial I think. (I don't know whether there was formal extradition, or just extradition by custody.)

c) If civilian courts aren't functioning, then the occupying force I think has jurisdiction (and can shut down civilian courts presumably if it wants?). I presume that during vietnam, there would have been civilian authority technically, but in practice presumably a lot of summary executions.

d) Civilian status is worse for the prisoner than p.o.w. status (it isn't a crime for a member of one military to kill a member of the other in principle during conflict, but a civilian (I think) can be tried by a military court.)

I'm basing this on my memory of reading stuff on geneva convention and occupying authority a while back and stuff on extraordinary rendition, like Ghost Plane. But of course none of it should really be assumed to be accurate. . ..

C.A. said...

And by under martial law, I think I mean military tribunals or courts martial, depending on whether there is authority to hold tribunals rather than courts martial, I think.