A useful summary commentary of the military commissions component of the upcoming defense bill (the hates crime legislation amendment getting most of the press*) is found here. It gave me a chance to set forth my overall views:
The bottom line is that the U.S. government has certain limits to their authority, limits that in some part are not just statutory or treaty related (that too) but a component of their lawful power itself. Thus, the laws of war is not just a matter of grace. It helps define the basic powers in question.
This is not just a matter of "rights" -- thus, Congress has no power to suspend habeas except for certain situations. Or, to pass ex post facto laws. Or, to enslave. Doesn't matter who it is; shades of Galatians 3:28 -- the limits of power, which implies a right, applies to all.
I would not only rest on this, but it seems to me that providing basic rights to all detained, all "persons," including a right to appeal, counsel, and other basic rights is essential to limit the power of the government to its appropriate sphere.
We need first to save our own souls ... not mistreat ... in the process, others also have rights. But, "we the people" also have a duty here. If in the process enemies get some rights, it is "necessary and proper."
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Basic rules and limits apply. The ends justifies the means was not the rule during the Revolutionary War, and it is not now. This has both pragmatic and moral value.
As CJ Hughes, not Justice Kennedy, once noted:
the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented.
Limited government, even when "the people" are not the target, is for our benefit. This includes limits on what we can do to those in detention. In the current conflict, this can include people who have lived among us as citizens or lawful residents for decades.
Some, however, think basic rights (not all rights) are too much. Forever watchful, we must be for they include those with much more power and authority than the likes of any one of us.
There is still some sentiment that "them" (those assumed to be enemy combatants) can be treated however we want as if there were only pragmatic limits to how the government acts. This is false. Limited government includes limits on treatment of "others." Of course, we can sneer at this and international law in general (see various posts by Eric Posner here). Some who do this claim to be conservatives or originalists who respect the Constitution and rule of law. By ignoring both.
And, good take on the upcoming series.
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* I'm wary about hate crime legislation on pragmatic and other grounds, but if the federal government is going to have it in place (including funding various programs) for various other groups, equality alone justifies extending it to sexual orientation too.