Oj's brief remark is completely correct and correctly complete. Now that Congress has acted, the Youngstown Sheet and Tube issue which troubled the Hamdan court is resolved and we are back in Ex Parte Quirin country.

A substantive law question bears further elucidation. The term "enemy combatants" is paticularly unhelpful, as it may include both lawful and unlawful combatants. Most of the people using the expression seem to be making it a shorthand for captured was criminals, the unlawful combatants, as distinct from prisoners of war.

Ordinarily, prisoners of war are not tried at all, simply held hors de combat pending the cessation of hostilities. War criminals are to be tried as such, and are to be punished for their crimes as soon as may be convenient.

A confusion arises when the enemy is not an armed force, but a criminal organization, such as al Qaeda. Here the enemy fights treacherously in civilian clothes, habitually fights from behind protected personsa and places, uses terror bombing of civilians in a disproportionate fashion, and on and on.

This is a Jus in Bello question unrelated to the Jus ad Bellum determination of whether or not the prisoner's cause is just. If a Japanese pilot had been shot down over Pearl Harbor, we would not have called him a "war criminal" because his country had engaged is aggression. Al Qaeda are criminals because they fight as bandits, not because they fight on the wrong side.

It is a bit disappointing that these distinctions should be treated as impenetrable: the issues are actually quite simple.

Our Constitution guarntees US citizens and residents of legal rights. The Geneva Conventions guarantee uniformed fighters legal rights. The Geneva Conventions guarantees combatants who are not in uniform summarily executions. What legal rights are missing from the new bill?

I commented on the Asia Times post that you don't often se such a largedose of nonsense al at one. Then I read the Post article.

2 examples:

"There are other likely flashpoints. In the Supreme Court's June decision overturning previous administration policies, four members of the court who joined the majority opinion said conspiracy is not a war crime. The new bill says it is."

Congres now defines that under US law, conspiracy is a war crime. Yet, the SC will say otherwise? Funny, I though Congress defined crimes every day.

"Georgetown University law professor Neal Katyal said the bill's creation of two systems of justice -- military commissions for foreign nationals and regular criminal trials for U.S. citizens -- may violate the Constitution's 14th Amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction."

It says no such thing. Has this guy ever read the 14th Amendment? Is he aware of the INS treatment of aliens facing deporation?

The Asia Times post was written by a prof at a regional branch of a state institution. If it is not too elitest to say so: Neal Katyal is a law professor of what purports to be a leading educational insitution, one expects some mimimum level of knowledge.

It says no such thing. Has this guy ever read the 14th Amendment?

The 14th Amendment in several places refers to "all persons," not just citizens. Combine that with the interpretation that 14th Amendment enforces all the other Constitutional rights, and you arrive at the professor's opinion.

Now that Congress has acted, the Youngstown Sheet and Tube issue which troubled the Hamdan court is resolved and we are back in Ex Parte Quirin country.

Which should be enough to flip Breyer and Kennedy, judging by their opinions. (Since the bill also throws in DC Circuit and Supreme Court appeal of commissions and strict setup of the commissions according to the UCMJ, which troubled Kennedy.)

So I'd guess 6-3 for upholding, at least.

The United States used similar trials on just four occasions: during the country's revolution, the Mexican-American War, the Civil War and World War II.

Were the military trials in those cases appealable to the DC Circuit Court of Appeals and the Supreme Court, or any other part of the judicial branch? From what I can tell, no.

We all know the reason the professional Left spends so much energy defending the terrorists (and the guys unlucky enough to wind up at Gitmo) - it is a way to hurt Bush. If a Democrat were President, none of this (even Abu Ghraib) would have been much of a blip on the news.

Imagine if Bush had been President when the Chinese embassy was bombed in Belgrade. That would have been milked for months as an example of US aggression and the mob theater in China would have been 10 times as, well, theatrical.

Lou's point is spot on - the murkiness arises from the deliberate (and/or utterly foolish) misunderstanding of applicable law and treaty obligations, primarily by the Left but also by camera hounds like McCain and Graham.

Good points, rat, except I think the guys who wound up at Gitmo are probably pretty lucky in the big picture. They're apparently not doing "hard time".

jd:

You are probably right - for sure the 'detainees' are eating better than their compadres in the caves. And they even get the chance to defecate on and abuse Americans every day.