“Enemy Combatant” vs. “Unlawful Enemy Combatant”–A Technicality?

· dKo journal, Edgewise, Paleoblogs

The Guantanamo prisoners were found by pre-trial tribunals to be “enemy combatants,” but not necessarily “unlawful enemy combatants.” US officials have characterized this as a “technicality,” and the press has bought in to that.
Shockingly, even Sen. Levin’s proposed revamp “would make the commissions act’s definition of ‘unlawful enemy combatant’ the same as it is in the review tribunals, effectively eliminating the problem identified at Guantanamo on Monday.” (Boston Globe) Just run them through again.
(I am, as usual, disclaiming legal expertise here, but…)
We were at war in Afghanistan, fighting primarily the Taliban army, the only army that nation had. If a tribunal finds you an enemy combatant, what they have found is you were an enemy soldier.
A captured enemy soldier is a Prisoner of War. To be deprived of the rights of a POW (including no interrogation beyond “name, rank, and serial number”), you must be found an “unlawful combatant,”not a technicality. There are many criteria never considered before. For example:
–Were you wearing a uniform?
(Do “black pajamas” pass muster?)
–Were you part of a military command structure?
(Has any evidence been brought on this?)
–Did you show yourself as a soldier?
(Keeping in mind that Army snipers and mine-setters obviously count as soldiers.)
Any revamped tribunals must adhere to Geneva standards.
And, politically, everyone has to realize that fighting against American soldiers in war–or even chauffeuring Al Qaeda leaders or attending their training camps–does not, in itself, make you a terrorist.