"Enemy Combatants" and "Military Commissions"

 I am puzzled.

If "enemy combatant" is a term that denotes a captured person as someone to be held indefinitely pending the end of hostilities does that not make this person subject to the international law of war, the law covering prisoners of war?  

Prisoners of war are not criminals.  Acts of war do not make them criminals   Prisoners of war are not tried for anything unless they have violated the law of war or have broken a law after capture, for example, murder of a guard in an attempt to escape.  If they are tried for something like that then they have to be tried under the military law of the detaining power and if convicted punished as a member of that country's armed forces would be punished.  Such persons could not be tried before anything other than a court-martial.

I hear the mob crying out for the trial of captured terrorists before military commissions.  Why not courts-martial or civilian courts?  Is it because the mob imagines that military commissions will function as "kangaroo courts" ignoring due process and the rules of evidence?  Is that why?

Is it because the mob thinks that the officers who would serve on military commissions would ignore the evidence of coercion of confessions and torture?  If the mob thinks that, then they are fools who hope for national disgrace.

Better to treat our enemies as "common criminals" and try them in Article Three courts or to hold them indefinitely without trial as detainees under the law of war.  pl 

Comments

[mlaw230]

Interesting comments by all. It appears however, that some are conflating trial under the UCMJ with trial under the Military Commissions Act.

The UCMJ is a model of fairness, and although modified from civilian trial to operate in the military culture, is a system of which we can be proud.

The Military Commissions Act is a sham and notably permits hearsay, does not automatically prohibit evidence obtained through torture, and permits evidence in summary fashion based upon "classified " evidence that the Defense is not privy to. I am also told, (can't be sure of this one) that the defendant would not have the right to call certain witnesses such as active duty officers who may be fact witnesses.

The choice between the UCMJ trial and an Article III court is really a question as to whether you wish to treat these defendants as warriors or criminals. The option of trial by "military commission" is to choose a truncated show trial over a genuine search for justice.

In the few proceedings thus far conducted the JAG officers involved have stubbornly refused to go along with many of the MCA abuses. Good on them, but we should not have to count on that.

[arbogast]

What has become of the United States that I have to come to this blog to read this?

What is wrong with this country?

And I will say something even more inflammatory.

Lincoln was guilty of this sort of nonsense during the Civil War. Does greatness imply the ability to willfully disregard the law?

[mlaw230]

Arbo: Are you referring to Lincoln's suspension of Habeaus Corpus? Probably legal, subsequently blessed by Congress.

Insurrection in progress, Maryland contemplating succession thus cutting off the capital from the northeast. Still a blot on Lincolns record, yet far more subtle in more trying circumstances than the current situation.