What is the Geneva Convention status of CAP members?

[lordmonar]

Godwin.

I know...but in this case it was an applicable analogy.

[JohnKachenmeister]

How Congress defines CAP is not important to the discussion.  How the GC defines combatants and who is entitled to PW status IS the discussion.

The GC is vague, not at all like American law.  For example, the GC establishes that PW status is afforded to members of "Militia and Volunteer Corps" without really defining what those terms mean.  A "Militia" under American law is an armed force under state government.  Can you have a militia in a country with no states and without a federal system of government?  These questions are to be resolved by the capturing power in a "Military Tribunal" but there is no definition as to how such a tribunal is constituted.

Can the Boy Scouts be considered prisoners of war under the GC?  Yes, if they are in uniform and performing a function is support of the military.  Also, they must be under the control of a central authority.

In an earlier post, someone mentioned Joe Bag O'Donuts with a rifle.  IF Joe "Spontaneously took up arms upon approach of an armed hostile force," bore his arms openly, and conducted himself in accordance with the Law of War, then yes, he IS entitled to status as a PW.

There are several classes of captive:

Prisoner of War.  PW's retain the right to wear their uniforms, remain under the command of the senior member of their own force, are entitled to send and receive mail, must be paid for any work performed except housekeeping duties in the camp, and their capture must be reported to a Protecting Power, the International Committee of the Red Cross.  They must be fed and housed under conditions similar to the feeding and housing of the capturing power's own troops of similar rank.

Detained Persons.  No rights, except the right to humane treatment.  Reserved for war criminals, pirates, mercenaries, bandits and similar battlefield riff-raff.

Retained Persons.  Limited to medics and chaplains.  All the rights of PW's except they can only be made to work at medical and religious duties, and they need not be paid for such work.

Civilian Internees.  Civilians rounded up and held for security of the capturing power's force OR rounded up for their own safety to comply with the capturing power's duty to protect civilians.

[skymaster]

And besides, such a case would be tried in a state or local court, not a Federal court.

That should really make the prosecutor famous as he tries to convict people in state court for conduct specifically allowed by Federal law.

You must be referring to 18 U.S.C. § 702.  Such protection presupposes that as CAP members that we are acting as an auxiliary of the Air Force.  However, there have been several changes in the United States Code of late, including amendments to 10 U.S.C. 9441 that call into question our auxiliary status, and, if taken at face value, basically restrict CAP members to auxiliary status ONLY when signed in on an AFAM.  Of course, the fact that CAP is in fact restricted on an AFAM by the Posse Comitatus Act in the first place, makes a prima fascia case that, legally, we must fall under the military side of the house (though perhaps in a dual status such as National Guard and military contractor personnel).  As far as the possibility that CAP members could be considered legally as military contractors, be VERY CAREFUL what you might wish for.  Under several recent changes to Title 10 of the U.S. Code, military contractors (including "accompanying forces" such as embedded civilian journalists employed by private companies such as CNN, ABC, CBS, ABC, FOX News, etc.) are now legally subject to the UCMJ (irregardless of any prior or current sworn military status or lack thereof), and are subject to the military justice system (including punishment as minor as Article 15 punishment or as major as execution by a military tribunal, if deemed necessary).  What is the difference between a member of a private corporation such as CNN and a member of a private corporation such as CAP.  Read the current US Code sometime, and you might be suprised at the parallels.

[lordmonar]

Our title 18 authority to wear the USAF uniform has nothing to do with our USAF Aux status on or off AFAM.

Title 10 Section 772 (j) give the service secrataries the authority to designate who can wear the uniform.

SECAF could say to the BSA "wear the ABU's" and it is done.

SECAF has said to CAP "wear the USAF uniform"....so it is done.  AFAM or no AFAM.

[JohnKachenmeister]

Military contractors, defense civilian employees, Red Cross workers, and any other "Civilian accompanying the Armed Forces" have been subject to the UCMJ since it's inception.  These are NOT new interpretations, they are black-letter law.

The discussion is the status of CAP under the Law of War, not the Uniform Code of Military Justice.

If CAP officers were to serve with US forces in theater, we would be subject to the UCMJ, no doubt.  Since Congress has empowered CAP to perform "Non Combat missions and programs for the Air Force," the chance of doing so in a combat theater is a contradiction.

But such Congressional designation as "Non Combat" has no meaning under the GC... The only non-combat status recognized under the Law of War is that of medics and chaplains.

[RiverAux]

And there were arguments made at the time that CAP subchasers were subject to UCMJ, though I'm aware of no evidence that it was ever applied.  But, that is a different topic,

[PHall]

And there were arguments made at the time that CAP subchasers were subject to UCMJ, though I'm aware of no evidence that it was ever applied.  But, that is a different topic,

There wasn't a UCMJ during the Second World War. So it would be really hard for the CAP Subchasers to be subject to it.

[JohnKachenmeister]

The Subchasers were subject to the Articles of War, which preceded the UCMJ.  Back then, the Congress passed separate laws for the "Government of the Army and Navy.