I generally find that people who have been to law school or taught their are very, very good at respecting other people's opinions and looking at both sides of things, because you can't understand a point of law without understanding all positions on that point of law. If you want a decent, honest, reasonable policy discussion with a liberal, make it with a liberal lawyer or law professor. I may sound snooty when I say that, but it's true. Any random faculty member of my alma mater could make a more compelling case for a liebral position than the entire Democratic Senate combined.

Having tooted the horn for my own profession, let me add that it's nice to see someone agree with me that the Hamdan decision doesn't apply the Geneva Conventions full-court press.

How do you determine when someone gets into the terrorist category and is not entitled to constitutional rights?

Paul, that is the crux of the entire pronlem.

Military opponents do not get Bill of Rights protections (Ex Parte Quirin), those charged with criminal activity do. Charging a citizen with being a combatant allows them access to the Bill of Rights to prove non-combatant status (Hamdi), but once combatant status is proved, they are under military detention.

With terrorism, the line between military opponents and criminal activity is blurred, to say the least.

The list of throny problems go on. Further, if the people involved are military suspects, many have claimed that the AUMF shoves FISA aside for surveillance purposes. Etc, etc, etc.

The only group of people who can specifically detail what they consider to me a military action falling under the AUMF and what they consider to be a law-enforcement action that does not fall under the AUMF, is the United States Congress, and historically that is a group - whether run by Republicans, Democrats, Whigs, or Federalists - that loves being vague because they are too chickensh*t to be specific.

It would be nice if voters could insist - aside from whatever their positions on other issues - that Congresspersons and Senators actually write laws that are fricking readable.

Sorry for my vent. I just think if you're giving someone a nice salary and pension to write something for you, then it ought to be well-written.

But if you can prove they are combatants, doesn't that mean you can prove they committed some crime, and thus, military detention is unnecessary?

Yes and No, or more accurately, not really. A combatant need not commit a crime, they merely need to be engaged in warfare against the United States. Now, it happens to be that in order to get into a position where they can wage war against the United States they commit crimes in the process, most involving bank fraud or other false filings and identity thefts.

Military detention is necessary whether or not someone committed a crime. It's purpose is to prevent the combatant from waging war. Theoretically the purpose of detaining criminals is to rehabilitate them or to punish them, depending on which theory of Criminal Law one prefers. As such a typical military detention setting will not necessarily have the harshness of a criminal detention setting. Usually in large-scale wars, for instance, the highest officer in military detention is given command of his troops within detention and were frequently called on to run the interior of the military prison. (The Japanese typically honored this system in WWII, although the Germans were less enthusiastic about niceities.)

The problem with detention in the War on Terror, is there isn't any way to tell when the war is over. At a certain point in WWI, the Axis powers surrendered, and eventually prisoners were released back into society following a brief military administration period. But in the War on Terror, cells of terrorists are willing to fight even if their other fellow terrorists are captured and killed, and Al-Qeada is nto a country that one can bargain with for surrender terms. This leads to the specter of indefinite detention, and was a major concern of the Hamdi opinion, including the plurality, the concurrence, and two dissenters.

Again, it comes back to this war being different from all other wars, and it comes back to members of Congress needing to get off their duffs, make decisions themselves, and lay out some clear and concise legislation.

I believe it is more like a hot war of spies and sabatours...there are people all over the world who are living "offline" or off the grid with no real national alligence and are seeking to simply disrupt the mechanisms of civilization.

Spies can be executed on the spot. FDR had many german spies simply shot - and there was no trial to determine guilt or innocence in our court system with our constitutional protections. Spys are not afforded Geneva protections (yet; the Supreme Court might change all that).

Could innocent people have been wrongly executed? Perhaps. But such is the nature of war.

But they can't be at war with the US without a. admitting they are military, and then the issue is moot, or b. engaging in activities that are illegal outside of war (conspiracy to commit murder).

In other words, the do have to commit a crime, merely being at war is a crime since there is no war against the US that is legal. So if we can prove they are belligerents, you can prove they commited a crime.

what is a "legal" war? this nation is at war whenever we say it is. there is no "legality" that must be established.

congress could authorize the president to invade Mexico to stop the drugs or whatever and it would be perfectly legal (constitutionally speaking).

the whole point of this article is the flimsiness of "international law"

Legal War: a declared war, carried out by uniformed combatants, from a recognized government of an actual nation.

Why is everything so difficult for you Aaron?

When did Robert Crass become a liberal law professor???.....or even a Democrat for that matter? He's been a Republican for as long as I've known anything about him.

Aaron, unless you can show me some documentation, I'm going to call BullShit on your claim that FDR simply had spies found in the U.S. shot without a trial. In point of fact, there is one famous case where nazi saboteurs were tried by military tribunal in the U.S.( Ex parte Quirin). The only questions that I'm aware of that were raised at the time is whether the law required due process in the civilian courts or could be handled by Military tribunal. The courts ruled that the military tribunal constituted a trial and since Quirin was an unlawful combatent, the civilian courts did not have jurisdiction.

Two instances of spies or saboteurs executed in the U.S. without a trial during FDR's prescidency will be sufficient to prove that you are not once again making up facts as you go.

If I read your posting right, paul, you are saying that the process of war involves acts of agression that are crimes regardless, so they should at least be criminals. Is that where you were going?

I would agree with that, in theory, the only difference would we one of process. What controls the gathering of intelligence/evidence against the accused, and what level of proof does one need before acting. I also think that at a certain level criminal acts can theoretically rise to the level of a military threat. (I'm thinking of Grant sending in the army to suppress the Klan in the late 1800s as an example.)

If I misunderstood you, I apologize.

Keith,

Ex Parte Quirin involved American citizens. There may have been instances where non-citizens were shot on the spot as spies. I do not know of any that occurred in non-war zones, however.

Paul,

It just occurred to me that once a group has been determined to be a military threat every member of that group will come under fire. As an example, certain members of Al-Qeada may have yet to fire upon United States soldiers, citizens, or itnerests, but will be viable targets nonetheless due to their being in the same bunker with those who have done the same.

I am not sure that it could be argued that those terrorists who have not yet acted have committed a crime, it really depends on whether they have taken the "significant step" required for a conspiracy to commit violation. You've definitely given me food for thought (and a possible paper), for which I thank you.

Anyone who wants to know Ronald Cass' political positions,

I found a link to various academic papers he wrote, but I confess to be too lazy to go through it.

http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=49185