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Thanks for the great work here. I recommend you expand the study to include the actual language of the Law of War, Geneva and Hague conventions.
While I am not a lawyer, as a soldier with 23 years of service I frequently received training in the Law of War (required by the Geneva and Hague conventions). Here's what I was taught:
- To be considered a ' Lawful Combatant' a person has to meet certain criteria, namely they must be caught in an overt act (fighting in a battle, mining a road, firing artillery, constructing bombs, etc..), and they must be clearly identified in some visual manner with the combatants (uniform, arm-band, headband, something distinctive) and must identify themselves as a lawful combatant.
- If the captive is determined to be a 'Lawful Combatant' then they must be treated as POW's, with care and feeding commensurate with that provided to friendly combatants. The opposing force must be notified of their capture. And the combatant may be confined until the end of hostilities, subject to general discipline and leadership of the forces from which they came (Taliban, Iraqi Army, what have you), and to the military authority of the camp administrators exactly as though they were members of the friendly combatant military.
-If someone is captured in an overt act, and has not identified themselves as a combatant then they MAY be an UNLAWFUL combatant. If the captive is found to be an UNLAWFUL combatant (a.k.a. a criminal) then they are to be provided to the court system of the country in which their overt act occurred, to be prosecuted in accordance with existing laws much like any other criminal.
I interpret this thus:
-If I or another military member were to capture someone in the U.S. engaged in an overt act of warfare - say, like planting and IED on a major highway - and this person did not distinguish themselves visually and otherwise make it clear they were a combatant on the part of some hostile organization - Al Queda, whatever - then by the Law of War I should find them to be an UNLAWFUL combatant. And as an unlawful combatant, conducting an overt act of combat in the territory of the US I would be required to provide them to the Courts of the locality in which the overt act occurred, to be prosecuted under existing local laws.
This whole line of expanded action in the WOT is dangerous in the extreme. I have no intention of acting in any way other than that which I described above - under orders or not - because I could easily construe those orders to be illegal, and in following them I could inadvertently contribute to the factual overthrow of the US as defined and created by the Constitution. Accepting orders to the contrary of the above would constitute placing the authority of the person giving the orders primacy over the text of the Constitution itself - which I understand as forbidden by the Constitution as it would invalidate the Constitution as the Supreme Law of the Land and replace it with a government official whose official authority would ipso facto no longer be dependent on the Constitution, or law in general - ergo it would make a King, or Noble.
These sections of the NDAA are also a dangerous line for the Congress or any other body to take in that they could easily overthrow the constitutional republican nature of the country by asserting extra legally where lies the judicial authority over the 'overt act' in which the illegal combatant was engaged. Such an act in itself could be an act of warfare against the United States.
I hope you will expand this line of research further. I have no intention of subverting my oath in any way.
At the present time, given these sections of the NDAA, and the present Executive Orders asserting democidal powers, I am seriously considering resignation. I am unsure that simply refusing to comply will be enough. And I view that I am oath bound to actively oppose such activities.
However I to not wish to reach any conclusion rashly. It is obviously important that I make such decisions with a cool head!
With that in mind I look forward to your future articles as a source of enlightenment and education.
3 years ago on NDAA Sections 1021 and 1022: Scary Potential