Over at Slate, I have been in the somewhat curious state of defending Obama for deciding some people can be tried by military commissions, some by civilian court and others held as "enemy combatants" (or see below) whatever the latest flavor of the day. Some find what he is doing lawless and hypocritical. Not being totally on board with all he is doing -- surely, I think people in Bagram have habeas rights -- there still is a middle ground. But, this is different from thinking those held as enemy belligerents have "speedy trial" rights from the moment of capture.
KSM et. al. matches the definition of "enemy combatant," authorized by the AUMF, as recognized by the federal courts thus far. Thus, the Supreme Court in Hamdi* accepted it pursuant to the "law of war," which would fall under the "law of nations" that Congress has the power to define (including beyond commonly understood, though this would be more problematic). The AUMF applies to "persons" and "organizations" not only nations as such (or by implication, their agents), so freestanding individuals sent over to us would apply. Under such power, the U.S. has the authority to hold the individuals to prevent them from taking part in the fighting or coordinating it that is ongoing. They need not try them for a crime. And, if they are and found not guilty, they need not be released, particularly if no country wants them or their safe keeping to a country cannot be secured.
The Supreme Court was wary about doing so indefinitely, but given the active conflict in Afghanistan, the time limit does not seem to be there yet. The Supreme Court surely did not assume so in their rulings thus far, even with new governments in Iraq and Afghanistan. This is so in part because wars do not disappear just because new governments are in place. This does not erase a need to amend the AUMF given new situations (or ends not so tied to 9/11, underlined about the war in Iraq) or that its use of "persons" and "organizations" instead of just "nations" is free from problems since the former is less a "war" than something else. We can hedge or make a case for more protections in various respects without ignoring that in a certain respect the Obama Administration is following the rules.
So, this does not mean specific procedures in place to determine if someone is detained properly or to try them is a military commission should not be challenged. It surely does not justify certain treatment, such as torture, or detaining those who are not members of the "enemy" such as the Uighurs. And, certain moves taken by Congress or the President can be criticized on policy or moral grounds. This includes apparent failure to follow through on promises made or selective outrage when your own people are in power. All too often there is an "all or nothing" flavor to this affair.
Anyways ... The specific definition of the term "enemy combatant" has not been fully determined by the Supreme Court, which has given the elected branches and lower courts much discretion. One federal judge involved defined it thusly:
An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the Unied States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
The term might be out of date, though honestly I don't know how much it matters (see also Bates opinion, which basically wonders the same thing), with new nomenclature used in a new military commission law:
“unprivileged enemy belligerent,” defining this as an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.
So, maybe the term should be "enemy belligerent" ... it's hard to keep track. Judge Bates overall recognized the right to detain "members of enemy armed groups" is general, noting Obama doesn't seem to be using "enemy combatant" as such:
The Court also concludes that the authority claimed by the government to detain those who were "part of . . . Taliban or al Qaida forces" is consistent with the law of war.
He clarifies:
The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization -- i.e., whether he receives and executes orders or directions.
Mere "support" is not enough. But, KSM et. al. do seem to fit this rubric. Again, the AUMF (an authorization of force that was done via the war power, which included full-fledged wars and lesser uses of force) and the laws of war (consistent with law of nations) is mentioned. All of this is open to debate, of course. But, going beyond what the SC and a fairly reasoned lower court judge held is more than one can expect from the executive in this context. Overall, Judge Bates' rulings are useful readings, even if some might not like his decision that Afghans in Bagram do not have similar habeas rights as others there.
Meanwhile, I put on my "not a knee-jerk liberal" hat on here as well to argue that yes Virginia corporations have certain rights as persons, and even the mean old Lochner Court never gave them all of them.
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* Scalia/Stevens argued that citizens have a constitutional right to be released or tried in a criminal trial. Souter/Ginsburg argued that citizens have a statutory right of the same. The new military commission law only applies to aliens. Other rulings upheld the right of aliens to habeas in Gitmo, which Judge Bates later applied (in part) to Bagram in Afghanistan.
The dissent in Johnson v. Eisentrager was also concerned with denial of habeas rights, not full-fledged trial rights. "Persons" under U.S. control have some rights against our nation (something some fail to accept), but this does not mean aliens have the right to a criminal trial in this context.