Opinion on the applicability of the Geneva Conventions in the war on terror.

When it comes to discussions of terrorists and GITMO detainees, there are considerable references to violations of the Geneva Conventions. Those who hold these opinions have, in my opinion, not bothered to read and understand the conventions for had they done so, they would understand that the conventions do not apply. That does not mean that we can’t, or shouldn't, follow them unilaterally, it only means that as a matter of law, in my opinion, we are required to follow them. So lets take a look at a few of the articles of the Convention IV so that I can explain why I have come to my opinion.

Art. 2. The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting powers, and then only if all the belligerents are parties to the Convention.

The key word here is ‘powers,’ and means ‘countries.’ Contracting powers are countries who have signed the Conventions (contracts). Since Al Qaida is not a country, it is not a power, it cannot be a contracting or non-signatory power and thus cannot, legally, be protected by the conventions. The next word of great significance is the word ‘between.’ It means that there are two ‘powers,’ both of whom are ‘contracting.’ The third word of importance is the word ‘belligerents,’ which is defined in Chapter I, Article 1 and 2. (see below).
Art. 6. Non-Signatory Powers may adhere to the present Convention.

The Power which desires to adhere notifies in writing its intention to the Netherlands Government, forwarding to it the act of adhesion, which shall be deposited in the archives of the said Government.

CHAPTER I
The qualifications of belligerents

Article 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and
4. To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."
It could be argued that the ‘insurgents’ are ‘commanded by a person responsible for his subordinates,’ but they do not have ‘fixed distinctive emblem recognizable at a distance,’ they do not ‘carry arms openly,’ and they do not ‘conduct their operations in accordance with the laws and customs of war.’ Thus, they are not covered by this article.

Art. 2. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.

Since the overthrow of the Hussein government and it can be argued that Iraq has been occupied; in the years since the occupation, the insurgents have had time to organize themselves in accordance with Article 1; they do not carry arms openly and they do not respect the laws and customs of war. Thus they need not be regarded as belligerents with the scope of this article.

What the Supreme Court really concluded in

In re MARRIAGE CASES

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand. Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

GEORGE, C. J.

As I read the four corners of this holding, utilizing plain English meanings of the words, what I understand is that The California State Supreme Court has ordered the Court of Appeals to order the Legislature to rewrite section 300. Why didn’t The Court just change the law itself? Perhaps it can’t. Perhaps there is an issue of Separation of Powers.

CALIFORNIA CONSTITUTION

ARTICLE 4 LEGISLATIVE

 SEC. 8. 

(b) The Legislature may make no law except by statute and may enact no statute except by bill. 

(c) (1) Except as provided in paragraphs (2) and (3) of this subdivision, a statute enacted at a regular session shall go into effect on January 1 next following a 90-day period from the date of enactment of the statute

SEC. 9. A statute shall embrace but one subject, which shall be expressed in its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void. A statute may not be amended by reference to its title. A section of a statute may not be amended unless the section is re-enacted as amended.

SEC. 10. (a) Each bill passed by the Legislature shall be presented to the Governor. It becomes a statute if it is signed by the Governor. The Governor may veto it by returning it with any objections to the house of origin, which shall enter the objections in the journal and proceed to reconsider it. If each house then passes the bill by rollcall vote entered in the journal, two-thirds of the membership concurring, it becomes a statute.

Now, were I a wise-guy undergraduate, I might entertain the “what if” scenario: What is the state of the law between the Supreme Court holding and when the Legislature actually changes the law? What happens if the Legislature refuses to act? Can the Executive order the law be enforced as if it had been changed?

This is why lawyers make the big bucks. Just because the code says a law reads one way doesn’t mean that it is so. Lawyers next need to look at case law to see if the law has been changed and the law books haven’t. Then they need to find the most current case to see if prior rulings have been modified or overturned. And what of all the other references in the Code and the California Code of Regulations?

In the Code, I have found 133 references to wife, 129 to husband, and 107 to domestic partner.

In the California Code of Regulations, I have found 85 references to wife, 76 to husband, and 31 to domestic partner.

A global find and replace will not do the job. Each section needs to be read and evaluated to determine the appropriate modification. This should not take more than a month.  Then the changes need to be written up in a bill, the bill enacted by the legislature and presented to the Governor or approval.

No one I know of ever said it would be easy.

In the middle of a basketball game a player fouls out. As the coach goes to replace him, the official announces that the expelled player cannot be replaced because in soccer, replacement of an expelled player is not allowed. How many basketball fans would tolerate this? None! If this is not tolerated on the basketball court, why is it tolerated from the legal courts?  The short answer is that more Americans know the rules of basketball than know the rules of our country, our state.

How did The Court justify their holding? Lets look at the majority opinion.

In In Re Marriage Cases (43 Cal.4th 757)

The issue is one of first impression in California, however, and for the reasons discussed below we conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

Strict scrutiny is the highest level of scrutiny. It is exceedingly difficult to overcome. By using this level, The Court almost guarantees that their decision will not be overturned. To reach the level of  Strict Scrutiny, they need to find homosexuality to be a "suspect class."  Or do they.

In addressing this issue, the majority in the Court of Appeal stated: “For a statutory classification to be considered ‘suspect’ for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an ‘immutable trait’;...

How does the court define immutability? 

Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1)

It should be noted that not a single geneticist has ever considered homosexuality to be genetic, like the color of eyes or the color of skin. The court gets around this inconvenience by simply discarding it.

... immutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes. California cases establish that a person’s religion is a suspect classification for equal protection purposes (see, e.g., Owens v. City of Signal Hill (1984) 154 Cal.App.3d 123, 128; Williams v. Kapilow & Son, Inc. (1980) 105 Cal.App.3d 156, 161-162), and one’s religion, of course, is not immutable but is a matter over which an individual has control. (See also Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 292 [alienage treated as a suspect classification notwithstanding circumstance that alien can become a citizen].)

How on point are these cases that The Court relies on? Each one concerns the regulation of participation in a business and in each, The Court held that the appropriate test is not strict scrutiny but rational basis. Only Raffaelli involves a suspect category, that of allienage, and even then the rational basis is the appropriate level of scrutiny. They kept looking.

Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment. (Accord, Hernandez-Montiel v. I.N.S. (9th Cir. 2000) 225 F.3d 1084, 1093 [“[s]exual orientation and sexual identity . . . are so fundamental to one’s identity that a person should not be required to abandon them”]; Egan v. Canada, supra, 2 S.C.R. 513, 528 [“whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”].)

In Hernandez, the court found that it could rationally be assumed that a man who had been persecuted for being a transvestite in his home country would be persecuted if returned to his home country. So they finally turned to Canadian case law, Egan, which ignores immutability because, under Canadian law, immutability is not an element and so need not be considered.  Using Canadian law to address a US State issue is equivalent to applying soccer rules to basketball.

The Court played fast and loose with the rules, adjusting them as they went along, in order to obtain their desired result regardless of the law, knowing that the majority of the public had no interest in the opinion, only the result.  But this is only the beginning of the story.

What is a "stay," and what might the ramifications of refusing to grant a stay?

Who has the authority to make or change a law, the judiciary or the legislature?

If the judiciary orders the legislature to change a law, what happens if the legislature doesn't?

The US Supreme Court has held that Gitmo detainees have a right to challenge their detention in civilian federal court that has no jurisdiction over the detainees. What does this mean?

Suppose that a Saudi Arabian is detained on the battle field in Afghanistan fighting for the Taliban. He goes into US Federal Court to challenge his detention. What crimes might he be accused of?  What defenses might he present?

He was in possession of an banned assault weapon which he obtained in violation of the Brady Law: no mandatory background check , no mandatory waiting period, no purchased from a licensed gun dealer. He has killed, or attempted to kill people including active duty American military personnel. Do any of these laws apply to Afghanistan?  I would argue no.

These are all civilian laws and he was taken into custody by American military personnel in violation of Posse Comitatus, which forbids the federal military from the enforcement of civilian law. US civilian courts have no jurisdiction just as US civilian courts have no jurisdiction over a bank robbery committed in another country by a non US person.  He was (probably) not read their Miranda Rights prior to interrogation. The interrogation was illegal. Under Fruit of the Poisonous Tree, any evidence obtained is banned from use in any trial. There may be no admissible evidence against him.

No jurisdiction, illegal detention, violation of Miranda Rights, no evidence against the detainee: all charges must be dropped and the detainee must be released. But where to?

If he is released to Afghanistan, he will certainly be persecuted or prosecuted by the anti-Taliban government. If he is released to Saudi Arabia, he may well be persecuted or prosecuted as well. Are there any other countries that would take him and not persecute or prosecute?  At this point he should apply for asylum. And I would not be a bit surprised if the courts granted his asylum request which would then lead to the granting of Legal Permanent Residence here in the United States. Far fetched?

The investigation into the “outing” of Valerie Plame was a legal fraud upon the people and the court.

The investigators knew that Armitage was the one who “outed” Plame on October 1, 2003.  Fitzgerald began his tenure four months later.  The Grand Jury began its investigation yet another year after that.  After October 1, 2003, what was there to investsigate?  And during this entire time, everyone involved knew, or should have known, that no crime had been committed under 50 USC 426. 

When the Plame thing first hit the news, I did as I always do when there is an issue of law at hand, and what every prosecutor does or should do: I searched out the relevant law.  What I found in 50 USC 426 was that if you had not been posted overseas as a covert agent within the past 5 years, you were not protected by the law, no crime, no prosecution.  At that time, I asked: when was Plame last posted overseas in a covert status?

Working at Langly, I imagine that she had a parking sticker on her car, that she had “CIA” on her tax documents, that she was listed in the company telephone directory.  Hardly a way to keep one’s association a secret.

Over time, it came out that Plame was brought in from the cold in 1997 because the C.I.A. suspected that her name may have been on a list given to the Russians by the double agent Aldrich Ames in 1994.  If they were so concerned, why did they wait 3 years?  Not material to the question at hand.  What is material is that this was more than 5 years before the “outing” required by law for legal protection under 50 USC 426.  (The Wilson-Plame-Novak-Rove Blame Game, http://www.factcheck.org/article337.html).

I opined, and was ridiculed, that there would be no indictment for “outing a covert agent.”  I was right.  No crime, no indictment, no trial for the “outing.”  But there was more.  Armitage was the “leaker” and the investigator knew it from the get go.  There was no legal reason for the investigation.

The time line is as follows:

June 2003 - As it turned out, Novak wasn't the only person Armitage talked to about Plame. Washington Post reporter Bob Woodward has also said he was told of Plame's identity in June 2003. (Newsweek, Sept. 4, 2006 issue, By Michael Isikoff)

July 8, 2003- Armitage acknowledged that he had passed along to Novak information contained in a classified State Department memo: that Wilson's wife worked on weapons-of-mass-destruction issues at the CIA. (The memo made no reference to her undercover status.) Armitage had met with Novak in his State Department office on July 8, 2003 (Newsweek, Sept. 4, 2006 issue, By Michael Isikoff)

July 11, 2003 –...Cooper also says he had talked earlier to Cheney’s Chief of Staff, I. Lewis “Scooter” Libby, about the story. “I asked Libby if he had heard anything about Wilson 's wife sending her husband to Niger. Libby replied, ‘Yeah, I've heard that too,’ or words to that effect. Like Rove, Libby never used Valerie Plame's name or indicated that her status was covert.” (Matthew Cooper, " What I told the Grand Jury, ” Time, July 2005).

September 30, 2003 – The Justice department publicly announces an official criminal investigation.

October 1, 2003 –- In the early morning of Oct. 1, 2003, Secretary of State Colin Powell received an urgent phone call from his No. 2 at the State Department. Richard Armitage

 Armitage's admission led to a flurry of anxious phone calls and meetings that day at the State Department. (Days earlier, the Justice Department had launched a criminal investigation into the Plame leak after the CIA informed officials there that she was an undercover officer.) Within hours, William Howard Taft IV, the State Department's legal adviser, notified a senior Justice official that Armitage had information relevant to the case. The next day, (Newsweek, Sept. 4, 2006 issue, By Michael Isikoff)

October 2, 2003 – a team of FBI agents and Justice prosecutors investigating the leak questioned the deputy secretary. Armitage acknowledged that he had passed along to Novak information contained in a classified State Department memo: that Wilson's wife worked on weapons-of-mass-destruction issues at the CIA. (The memo made no reference to her undercover status.) Armitage had met with Novak in his State Department office on July 8, 2003. (Newsweek, Sept. 4, 2006 issue, By Michael Isikoff)

October 14, 2003 – Libby is interviewed by FBI special agents on this day and on November 26, 2003.

December 30, 2003 – Facing allegations of bias, Attorney General Ashcroft recuses himself from the investigation and U.S. Attorney Patrick Fitzgerald takes over the investigation as a special prosecutor. (" Ashcroft Recuses Self … ” Washington Post, 31 December 2003 ).  

Janurary 2004 – The grand jury investigation starts. (Fitzgerald, Patrick J., Department of Justice , United States of America v. I. Lewis Libby.  28 October 2005.)

The Los Angeles Times recently had a front page article on English Learners in the K-12 schools of the Southern California counties of Ventura, Los Angeles, Orange, Riverside, and San Bernardino (February 11, 2007).  There was not enough definitive information to make a guess as to what it all meant.  So I searched the net for numbers.

 

I found the following numbers but failed to save the hyper link:

 

$56,444	Average teacher pay
6,077,861	ADA
$7,860	per ADA
46.7%	Latino ADA
25.6%	English Learners.

In Comparing California

http://www.ed-data.k12.ca.us/Articles/article.asp?title=California%20comparison

it was noted that the Student-teacher ratio in California was 20.6.

 

That would give us 295,041.8 teachers and $16,653,339,140 for teacher wages per year.

 

In 2004-05, 25.2% of California’s students were learning English, while an additional 16.8% had mastered English though it was not their first language.  80% of English Learners are Hispanic. http://www.edsource.org/sch_stu_ell.cfm

 

The rest of this requires the application of common sense and deductions, and the like.

 

This gives us 42% of the total student body as immigrant or immigrant extraction with 31.6% Hispanic.

 

25.2% of 6,077,861 is 1,531,620.97 Students, 74,350.53 teachers (and classrooms), and $4,047,940,398.04 in wages for those teachers.

 

16.8% of 6,077,861 is 1,021,080.65 Students, 49,567.02 teachers (and classrooms), and $2,698,626,932.02 in wages for those teachers.

 

http://www.edsource.org/sch_stu_dist.cfm shows that close to half the students in California schools are Hispanic.  What percentage of those are illegal?  What percentage are anchor babies?  If, in the mid 80’s, the border had been closed and amnesty had not been given, what percentage of these students would not be in our schools today?  By not asking the status of the children and their parents, we can’t know.  Perhaps we don’t want to know.