You've got a long two years to wait. This is the kind of thing Dear Decider will never reconsider.

My nick is for one of the Surety Barons of Magna Carta. I chose it as a private joke because he was a badass (no baths, illiterate, thuggish property grabs). The name is due to the Normans' constant swearing, so people started calling them the "By Gods". Roger's folks thought that was cool, so they adopted the name.

The Magna Carta thing seemed kind of quaint, since the rights like habeas corpus have been nailed down for 900 years now. Little did I know, dude. Nothing is nailed down with this bunch.

They only get away with it because of the swine they lead. They don't care, long as they're safe.

I have done some research on this matter for a past post on a scholarly listserv prior to the recent commissions act.

Reader's Digest version:

Military commissions and incarceration of combatatants are constitutional and subject to past practice and a few key SCOTUS decisions, notably Eisentrager and Ex Parte Quirin, which SCOTUS itself pointed the Bush administration toward.

Quirin is in my view, a much better model (and speedier)than this recent legislation. In fact, nothing barred the Bush administration from using military tribunals for irregulars who could be tried as spies or saboteurs under the laws of war. This goes back to the Hague Convention and is solid case law.

But in my view, the Bush administration does not want military trials of terrorists, executions or long prison sentences that would be subject normal appellate review under the UCMJ - they want indefinite detention, something that is not allowed under the laws of war or the Constitution but has no provision for oversight which is what they really prefer to avoid. So this is all an attempt at dragging the process out. Khalid Sheik Mohammed should have long since been sent to the gallows and the illiterate Pushtun hillmen captives sent home by now.

And of course, it is a political disaster overseas as Col pointed out. No one would have liked us executing convicted al Qaida captives but the legitimacy of the gripes would have been stymied by our transparently following the historical military precedents and procedures and the sheer malevolence of the Qaida hard core defendents.

ZP, the government was well aware of both Eisentrager and Quirin long before any of the cases got to the Supreme Court.

Neither, of course, has a thing to do with civilians wrongfully detained as if they were enemy soldiers. Or people held for years without charge, or expectation of charge.

This isn't really a purely domestic issue either. The standards set by the US in its treatment of alleged combatants will become the internationally recognized minimum under various international treaties.

For example, under the 1946 treaty, the US is obligated to observe international law with respect to the holding of any Yemeni prisoners: and this treaty explicitly applies to lands outside the US but under US control. The question is, does international law permit indefinite detention without trial? Similarly, are the CSRTs adequate under international law to decide who is a civilian and who a combatant?

The jurisdiction dispute may be domestic, but all of us will live under the substantive regime. John Yoo's torture memo can be waved about by any tinhorn dictator who happens to kidnap you or yours, on whatever basis.

CharleyCarp,

Of course the administration was aware of Eisentrager and Quirin, they did *not* want to follow what those pecedents required - which was the point in my comment. The Commission Act is itself different from Quirin for that reason.

IMHO, IL does not permit indefinite detention but it does permit extended detention of POWs and war criminals. Both the U.S. and Soviet Union as well as the Allied Control Commission held Axis prisoners until the mid to late 1950's, long after WWII ended and national governments existed in Germany and Japan. Hess of course committed suicide in the 90's as the Allies last prisoner. I must add that this was *after* the status of prisoners was ajudicated, not before, and millions of POWs were released in the first few years after the war.

Terrorists and guerillas are *not* civilians. Members of al Qaida, HAMAS, Hezbollah, Tamil Tigers, the IRA, FARC -whatever- are paramilitary fighters, and as irregulars they come under the laws of war and several different precedents, decisions and protocols. This is why prisoner status should be adjudicated *quickly* so actual civilians can be swiftly released and repatriated.

ZP we're not in disagreement.

It seems to me that it's perfectly possible for someone to be a member of Hezbollah, say, and not be a 'paramilitary fighter' at all. There's a civilian wing, there are social services, and the like. The Wolfowitz definition, though, would make someone who was a social worker -- or the receptionist at the office for the social workers -- a "combatant." There are many problems with the detention policy, but this is surely the first.

I'll have to second CharleyCarp's take: there are many instances where the linkage between "civilian" and "militants" are blurred. I personally like organized crime comparison--since I think al Qaeda and other terrorist organizations are a lot more like the mob than armies. I've always been ambivalent about anti-Racketeering laws for this very reason...but these are still much more within the bounds of the usual notions of civil liberties and rights.

Ah, you can be as militant as you like and remain a civilian. Pick up an Ak-47 or plant an IED or car bomb and under the laws of war you are a combatant.

No distinguishing insignia and you are an illegal combatant as well ( you don't need a full-fledged "uniform" under IL but you do need to be bearing arms openly and be clearly marked as a fighter in some way).

I'm going to be sorry for stepping into this but if we're going to be talking about "the laws of war" and such, there's a key legal point that always seems to get glossed over. That's a shame because it's really at the heart of the "enemy combatant" problem.

The USG theory seems to be that anyone thinking bad thoughts anywhere in the world is an "enemy combatant. But that's a complete perversion of the international "rules" of war.

Take, for instance, Afghanistan. People seem to forget -- or never knew -- that the U.S. has never been at war with Afghanistan. Rather, the U.S. choose to intervene in a civil war on the side of the legally recognized government, the Northern Alliance. But that doesn't make it an international conflict and I think it's open to considerable debate whether, apart from might making right, the U.S. really has legal jurisdiction over acts done by Afghans in Afghanistan in rebellion against the "legitimate" government.

Is for, example, the FARC now "enemy combatants" because the U.S. has sent military advisors to Columbia? Can they now be captured and detained indefinitely by the U.S. because they are in rebellion against a government the U.S. supports? Or are they just Columbian criminals?

Ah, you can be as militant as you like and remain a civilian. Pick up an Ak-47 or plant an IED or car bomb and under the laws of war you are a combatant.

There's a certain logic to this. WRT US policy in Afghanistan, I'd add one more item: pick up a weapon as part of the Afghan civil war (1978-present) and you're a combatant; put it down and flee once the US gets involved (fall of 2001) and you're not an "enemy combatant" of the US.

Apply these common sense principles to Gitmo, and dozens, if not hundreds, go home.

OT, and this seems like as good a place as any for the plug, I'll be on ZDF on March 8 saying more-or-less that nothing less than the viability of Western civilization itself is at stake in the Gitmo litigation. (We'll see how far the voice-over translation goes in that direction). [By which I mean that the Rule of Law is the central underpinning of western civilization. Not Christianity, Aryan blood, birth in North America, or whatever else the bitter-enders are thinking it's about.]

Anyone that runs is Taleban. Anyone that stands still is a well-trained Taleban.

5 points for reference.

[By which I mean that the Rule of Law is the central underpinning of western civilization. Not Christianity, Aryan blood, birth in North America . . .

I suspect the Germans already know this but it certainly bears repeating. If you have time, it'd probably be a good idea to point out, and quite strongly too, that there is a huge debate about this in the U.S. and that the administration is really only one voice in that debate. Unfortunately, the administration's voice is often the only one that people, especially non-North Americans, hear. Even in Europe, people need to be reminded that "America" /= "Bush administraton."

Hundreds of tribesmen probably should have gone home. Our real target aren't the illiterate rag-tags but the professional, transnationalist, terrorist hard-core, of which very few are actually Afghans ( Pakistanis, yes. Afghans, not so much).

" I'll be on ZDF on March 8"

Excuse my ignorance but what is ZDF ?

"Anyone that runs is Taleban. Anyone that stands still is a well-trained Taleban.

5 points for reference."

Full Metal Jacket, helicopter scene.