And the Hamdan case was ‘Technically you didn’t word the suspension of Habeas right, so it’s invalid’. Congress did attempt to selectively suspend.

I’m opposed to military forces being used to enforce every-day criminal law outside of a declared state of emergency (Katrina, for example) – stuff like shoplifting, robbery, murder, rape or illegal border-crossing.

But when we are dealing with war-criminals (Which is what state-sponsored, state-seeking, and formerly-state-governing terrorists are under international law) military court is the appropriate venue – in line with the letter & spirit of international law on the subject (the reason that issues involving enemy combatants – lawful and unlawful – are required to be tried in military court, is that combatants should be tried by combatants, not by civilians who do not understand what is and is not legal in war).

That’s why I never understood the uproar about killing al-Awaki; how does that differ from killing JEB Stuart at Yellow Tavern? (And, like al-Awaki, Stuart was intentionally killed due to his role.)

What I can’t agree with is intentionally indefinitely detaining US citizens apprehended in the US without “some kind of hearing.”

The AQ operators who planned and executed the 9-11 acts committed a criminal act. Someone like Jose Padilla, who is a US Citizen, should have gotten some kind of protection through a writ of habeus corpus (unlike the Civil War, this was NOT suspended for the duration). This was acknowledged by Congress when they passed the Military Commissions Act, after the decision in Hamdi.

In general, I opposed to Star Chambers.

Thanks

No doubt this will be appealed.

Regardless, I think the law was poorly thought out. The folks who drafted and pushed the bill did not concern themeselves much with whether it would stand up to court reviews for constitutionality. Now we are seeing that the NDAA is vulnerable to constitutional review.

Like most of the hysteria surrounding the Patriot Act (which was almost entirely fiction – there is nothing in PATROT that actually takes away anyone’s rights – all it does is apply existing legal processes available for use on organized crime and espionage rings to terrorisim), there’s simply no basis for it to be used in the ways the opponents claim…

I am more concerned with the ‘slippery slope’ of trying combatants (lawful or unlawful) in civilian court, than with any ‘Well they could ’round up’ political dissidents’ angle…

As a Soldier, I can relate to why it’s a bad thing to break the LOAC conventions on this subject – it undermines our argument for not doing the same to our troops if they are captured…

Which means indefinate nonpunitive detention for lawful combatants, and military tribunals for unlawful ones… No civillian legal process should ever be used, period…

The fact is, if you join enemy forces & get captured while attacking the US, you’re a POW, or an unlawful combatant subject to military jurisdiction & punishment.

That’s the way it’s always worked.

Now, I’d be a bit more careful on the subject of US citizens captured inside the USA, personally… But mainly because I’d rather try them for treason & execute them (easier to do on the civilian side than the military, and the US has legitimate jurisdiction over it’s citizens in addition to the LOAC jurisdiction for captured persons), than run them through the unlawful combatant process…

But overseas? I don’t care what kind of citizen you are – if you join the war on the enemy’s side, our first choice should always be ‘Kill’, then ‘Capture’ as a backup plan, as required by international law if you surrender before we can complete option-A…. With exceptions for those we believe can provide valuable information if taken alive, of course…

Under no circumstances, other than a negotiated prisoner exchange for captured US persons, should ANYONE captured overseas, or ANY foreign citizen captured ANYWHERE be released from detention until formal cessation of hostilities.

Indefinite detention for captured persons should be the rule, not the exception… Just like it always has been…

This is where the term ‘unlawful combatant’ comes from.

The conventions are very clear on the subject – a detainee is to be presumed to have EPW status until a status hearing can be convened – at which time those found to be unlawful combatants (for example, terrorists or partisans/francs-tireurs) may be tried and punished under the capturing power’s military law.

Eg, we are legally required to subject them a specific process, which is the reason for the 2006 Military Commissions Act (which implements said process formally in US law).

Beyond making sure that we have the right people in Gitmo, I’m not really too concerned about what we do with foreigners who we are sure are illegal enemy combatants. I’m also not terribly broken up over the fate of folks like Khalid Sheikh Mohammed and his buddies. If we don’t have any other recourse, eliminating an American citizen abroad in a designated war zone in the course of completing some national security objective is regrettable, but not really what concerns me. More concerning to me is the notion that we will indefinitely detain American citizens domestically at the discretion of the executive, when other options are available. The “tools” developed for the GWoT (such as some of the provisos of the PATRIOT Act) are already being applied to domestic law enforcement contexts, such as the war on drugs and the like, and as a result circumvent Constitutional safeguards. I am more worried about the government using these tools as a result of apathy or to “get the bad guys” in a domestic law enforcement context, than I am about secret FEMA camps or somesuch hogwash — and IMO the extent to which the GWoT has impacted domestic law enforcement is dismissed too easily by conservatives.

The question that I find myself asking when it comes to the GWoT is how we can be so sure that the war (and thus, the “war powers” granted the executive) will ever end. We’ve been at war with N Korea since the 50s. Plenty of countries have had their democracies effectively supplanted by “emergency” provisos granting power to the executive indefinitely. There is a reason that very few systems modeled after ours work well for countries transitioning to democracy. While I don’t think that the same will transpire for the US, I do worry that we will lose many court protections, much as other developed, democratic countries have eliminated the right to keep and bear arms.

That is a blindside blow to the Bill of Rights promoted by the scaremongers like Lindsey Graham, and that is what the while discussion is about. POW’s are irrelevant.