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The closest you can get under Article 4 is Section 6: "6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war." however in this case most of the detainees were neither inhabitants (natural born Afghan) or respected the laws and customs of war (uniforms, insignia, humane treatment of prisoners, etc) <br> <br> The SCOTUS decision in Hamdan v Rumsfeld did not establish protections for the GTMO Group under the GC, but instead overturned the Court of Appeals decision and established that President Bush did not have authority to set up the war crimes tribunals...not provisions of the GC. Also the SCOTUS found that special military commissions were not in compliance with the UCMJ or the Geneva Convention. Further, SCOTUS ruled that the minimal protections under Art 3 requires being tried by a regular court or Courts Martial, which military commissions fail to meet. Specifically, Hamdan asserted that the military commission lacks authority to try him because "(1)neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, isnot a violation of the law of war; and (2) the procedures adopted totry him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him." So the decisions held against the Bush commissions under the provisions of Hamdan v Rumsfeld address the governing bodies, not detainee status.<br> <br> Regarding Bourmediene v Bush and the Military Commissions Act the SCOTUS decision found that right of habeas corpus applied to the GTMO Group designated as enemy combatants. Suspension of HC would allow for the use of military tribunals under the provision. SCOTUS provisions established that if Congress suspended HC, then the US must provide an adequate substitute for the detainees to prove that he was being held erroneously and that the governing body (MCA) must "have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence." The military tribunals did not grant that provision under their original establishment. SCOTUS established that the Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.
By Rex Machina
Search Boortz.com
