[Muser]

Quote by: GHook93 Since when do POWs get trial? Ex Parte Quirin (I believe that was the case), made it clear that combatants of war are not entitled to a trial!

Supporters of the administration, invoking such cases as Johnson v. Eisentrager (1950), stress that courts have always denied that habeas corpus applied to "enemy aliens" captured abroad in wartime. According to attorney Brad Berenson, in a Federalist Society debate on the case, precedent therefore makes clear that detainees have no standing under "our own Constitution, which they of course aim to destroy." But, "of course," that is precisely the question. The past rulings invoked by the government involved captives who were unambiguously agents of foreign powers at war with the United States, not citizens of allied nations snatched off the streets far from any battlefield. Traditionally, courts have used territory as a bright line to determine the status of prisoners: If you were picked up on American soil, you had habeas rights; if not, not. This made a certain amount of sense in traditional war; it makes much less in an ill-defined "War on Terror" that, to hear the administration tell it, makes the whole of the planet a battlefield. Here, hewing to a strict territorial rule has the perverse consequence that the Algerian Six would enjoy more rights, on the government's theory, if they had illegally infiltrated the United States like the Nazi saboteurs whose fate was considered in Ex parte Quirin (1941). The government's circular logic here seems better suited to a Monty Python sketch than a court of law: Throw the old lady in the pond, and if she floats, she's a witch! She might drown, you say? Why are you so worried about what happens to witches?

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