HeyBub wrote:
Douglas Johnson wrote:
"HeyBub" wrote:


The Left and the Right talk past each other: The Left sees all the
issues as crimes and constitution. The Right sees the issues as war
problems. The 4th, 5th, and 6th Amendments deal with "crimes" as in
"In all criminal proceedings..." The Left asserts that detainees and
everybody else are entitled to constitutional protections.

The 5th amendment starts "No person shall..." so you'd think it
applies to more than just criminals. One of the independent clauses
continues " nor be deprived of life, liberty, or property, without
due process of law..." No crime required.

"No person shall be held to answer for a capital, or otherwise
infamous crime..."

Sound like it applies to criminals to me.



For example, we incarcerate people all the time who are
not "criminals:" Civil contempt, juveniles, illegal aliens,
contagious disease carriers, and more.

All subject to habius and judicial review, no?

Habeas corpus is a judicial determination of whether the original
sanction was proper. In virtually all cases, the finding is that the
original incarceration (be it for civil contempt, contagion,
juveniles, etc.) WAS proper. A habeas hearing is extremely rare
because all of the instances I named, that take place many times a
day, are proper.


* The people at Gitmo are "unlawful enemy combatants" in the same
category as spies, guerrillas, saboteurs, fifth-columnists, etc.
Under the customary rules of war, they can be summarily executed.

Who says they are "unlawful enemy combatants"?

The president, or his designee, determines whether an individual is an
unlawful enemy combatant.

Regardless, they
are entitled to judicial process under the Geneva Convention, which
covers all persons in an occupied country or combat zone, just solely
combatants.

The Geneva and Hauge conventions are completely silent on the subject
of "unlawful enemy combatants." The 4th Geneva Convention defines
"lawful enemy combatant" as one who:

* Bears arms openly,
* Bears a uniform or distinctive insignia visible at a distance,
* Subjects himself to a chain of authority and command, and
* Abides by the customary rules of war.

Anyone NOT following all four of the above can be classed as an
"unlawful enemy combatant." Note that Granny Goodbar, sitting in her
rocker, knitting a cosy for her lap dog, is not following all four of
the above requirements and can, should the president so choose, be
classed as an "unlawfull enemy combatant."

In addition, the 4th covers incidental combatants such as a citizens
militia hastily organized for purposes of defense, non-combatants
assisting in the war effort such as construction workers or medical
personnel, and other participants.

You're right, it does not have to be the same process as
US citizens. Except for a few, we have failed to provide them any
judicial process.

No, they no longer can be summarily executed. They need at least a
drumhead court martial.


We have always provided some sort of hearing, as we did with our
first spy, Major John Andre.

But there is no treaty, convention, or paragraph in the customary
rules of war that demands such. As much as we deplore the conduct,
German officers summarily executing resistance fighters was well
within the rules.

Per the Hague Convention, Article 30: "A spy taken in the act shall not be
punished without previous trial." The Hague Convention predates WWI.

The Geneva Conventions add additonal limitations but do not remove that one.