Monday’s divided (2-1) decision by the Fourth Circuit Court of Appeals is wrong in a number of serious ways (see “Federal appeals court rules against enemy combatant policy”). It refers to “enemy combatants” without knowing what that phrase means. It ignores a 1942 unanimous decision of the US Supreme Court which decided a similar case the way the dissenting judge would have decided this one.
“Enemy combatants” simply means enemy soldiers. When captured, enemy soldiers can be held for the duration of the war, without any charges, trials or access to lawyers. So say the Geneva Conventions, the Hague Convention before them, and the Law of War which preexisted the government of the US, and which was incorporated into US law in 1789 in our first military code.
“Illegal enemy combatants” are those who don’t wear uniforms, are not in military units, and hid among civilian populations. Such “illegals” have always been subject to military (or “drum-head” trials and prompt execution, if not simply execution on the spot. Witness the hanging of Nathan Hale as a spy by the British in Manhattan. Witness the hanging of Major John Andre, (Benedict Arnold’s contact who was in civilian clothes and behind enemy lines) in New Jersey.
For legal approval of such actions, see the 8-0 decision of the US Supreme Court in the Quirin case in 1942. It concerned two groups of four each who came on shore from German submarines, in civilian clothes, with money and plans to blow up various military facilities in the US. They all called themselves Germans, but one and possibly two of them had acquired American citizenship as children.
The Supreme Court upheld the military tribunal trial of all eight, six of whom were sentenced to death. The Court ruled that it was irrelevant that one or two of them were American citizens, because they were “illegal enemy combatants.”
The final, gross error of the press coverage of such trials today is that the Court ruled unanimously that the eight defendants in 1942 were all entitled to the writ of habeas corpus. That is exactly how they obtained their Supreme Court review. That writ remains available today. What is NOT available today, because Congress and the Supreme Court both say it is not available, is the full dress application of US civil and criminal law. And unless the entire Fourth Circuit and the US Supreme Court are willing to overrule the Quirin case from 1942, today’s decision will be thrown out on appeal.