“authority comes from Congress and the international laws of war,....”

For those of you scoring at home, apparently President Bush is no longer a "war criminal."

Oh, don't worry, Scott. He's still a war criminal.

However, there is still the possibility that the current President will act as a war criminal too. Depends on what wars he starts, and how he conducts the wars Bush started. For the moment, I find him still worryingly vague on the reasons why people can be held, and I would prefer it if those who were held were only the direct participants in hostilities against the United States.

A little history. The "enemy combatant" term, previously unknown, was coined by the Bush administration in order for them to be able to hold prisoners during a war, but not call them prisoners of war. If they called them prisoners of war, they would become by the administration's own admission eligible for Geneva Convention protections.

As far as I can make out, the abandonment of this term means that the Obama administration is abandoning the attempt to exempt prisoners held under US authority as the result of a war from Geneva Convention protections while detained. That does not mean that Obama ever felt that no-one captured in such circumstances should be held at all. I certainly didn't expect that. What I do expect is that prisoners will be treated as prisoners of war, that they get the opportunity to challenge in court the basis of their detention, and that they get released to their home country or to another country if there is insufficient basis to detain them.

the can't be called prisoners of war according the Geneva convention because they don't wear distinct markings. In other words they won't wear a fixed uniform which traditionally identifies them as a member of a given country.

Are you interested in the truth of the matter here?

You are right that the legal status of someone who does not wear the uniform of a nation state (in the Conventions, an "unlawful combatant"), istreated differently under the Geneva Conventions than someone who is part of a nation state's regular army. The detaining power must treat the unlawful combatant as a prisoner of war until his status is determined by a "competent tribunal" (the military commissions attempted under Bush, for various reasons, did not meet the Geneva Conventions' criteria for a competent tribunal). Then, the detaining power may choose not to accord the detained unlawful combatant the rights and privileges of a POW under the Third Geneva Convention, but the Fourth Geneva Convention will still apply to him, which requires that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial."

I'm curious as to what conditions you think Bush is a war criminal. Merely the act of war does not make you a war criminal.

The most well-known example of a war crimes trial is the Nuremberg trials at the end of World War II. One of the central crimes at Nuremberg was "planning and waging a war of aggression", defined as a war where there was no justification in terms of self-defense. The Iraq war in particular had no justification in terms of self-defense: nobody thought that even if Saddam Hussein possessed weapons of mass destruction, he would be able to send a missile to the United States. Therefore it was a war of aggression, which was without a doubt planned and waged by Bush and his administration. I don't see how one can avoid the conclusion that this was a war crime.

The only case for which one could be made for that charge would be the "ill-treatment of prisoners of war". Well, they weren't declared prisoners of war as I mentioned, and "ill treatment" is certainly debatable.

As explained above, until a competent tribunal reviews their status, which in many cases has still not been done, all detainees were and are prisoners of war under international treaties. All these cases are covered by international treaties which the US has signed and which have therefore been incorporated into domestic US law, so there is no issue of the US having to follow "foreign law" either. The US was free to not sign and not be bound, but it did and it is.

As for ill-treatment, prior to the Bush administration the United States had not only regularly accepted that waterboarding was torture, but had prosecuted Japanese war criminals on the basis of having committed it (as part of the Japanese counterpart to Nuremberg, the International Military Tribunal for the Far East). Chase Nielsen, a US airman, was captured by the Japanese and subjected to waterboarding, and he testified at their trial: ""Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again... I felt more or less like I was drowning, just gasping between life and death". His captors were executed for their crime by the United States.

The United States cannot consider waterboarding as torture punishable by death if practiced by America's enemies, and then declare it not torture and not punishable by anything if practiced by Americans. That is hypocrisy.

Perhaps there were Guantanamo detainees who were treated well. Conditions have improved there since 2005. But do not fool yourself that prisoners were not ill-treated there. Even US generals and US prosecutors involved with the Guantanamo military commissions have conceded that what happened there was torture, and they know more about it than you or I do.

Alex:

The Second Gulf War is not a war of aggression:

1) it is not done with intention of territorial aggrandizement.

2) it is in response to, inter alia, attacks on our pilots policing the no-fly zone with full authority of international law (see Article 3D, UN Resolution 3314 - and even that Resolution is non-binding and I don't by any means subscribe to its breadth).

3) The original Gulf War was an act of collective self-defense on behalf of an ally (see Article 51 of the UN Charter); our entry into the Second Gulf War was a response to Iraq's failure to comply with the terms of its surrender. If that authority doesn't exist, any warring nation could simply offer a false surrender or cease-fire, fail to honor it and hope that the political will to follow through had waned on the other team...which in fact is precisely what Saddam did.

4) Sound jus cogens principles supported the initiation of the Second Gulf War on humanitarian and genocidal issues alone.

5) For what it's worth, numerous distinguished legal thinkers believe that the breadth of the Nuremberg definitions is an overreach, and was simply a reflection of the convenient socio-political agitation at the time. The same kind of over-reactive guilt created the entire Israel/Zionist problem (and it IS a problem, regardless of which side one is on).

You may disagree with the "case" that was in sharp focus in the press at the time for the Second Gulf War, but that doesn't mean that the other justifications don't exist. I happen to know special operations guys who were the first into Baghdad -- set up the landing zone at Baghdad International -- and it's common knowledge in that community that the "rat lines" ran into Syria. We certainly gave Iraq plenty of time to get things out. However, you can choose not to believe that and I won't argue with you. What you can't do is to call our president a war criminal simply because you didn't support the war.

Vis a vis "unlawful combatants", first of all, the GWOT is not a Geneva Convention war to begin with. It is not waged between two high contracting parties. The term "unlawful combatants" has been used to refer to non-uniformed civilian combatants, but you fail to note that it is not a defined term in the Geneva Conventions. Even so, it is meant to apply only to unlawful combatants in the setting of a Geneva Convention conflict (ie, a mercenary unarmed terrorist acting on behalf of a warring nation-state). It's a loophole-stop; it's not intended to make any non-Geneva conflict a Geneva conflict. We're not at war with Mexico because a Mexican national kills an American on our soil.

It ain't beanbag, Alex. The development of weaponry capable of creating mass casualties which is readily obtainable by non-state actors is a very serious change to the game board. Moreover, the notion of what makes a combatant (without the qualifiers) is much different; no proximity to the field of battle is necessary, even when there is a field of battle.

In 50 years you will see an entirely new set of international laws, which mirror our domestic criminal law in many respects, except that they are global. The nature of warfare has changed so much that it is necessary even now. However, the number of hostile states in the UN will bar passage of any such regime until a nation-on-the-fence takes a massive casualty. In the mind of President Bush, and in the minds of many Americans and American allies, 9-11 was that event. The real "inconvenient truth" in our lifetimes is 9-11. If nothing in the Geneva Convention is designed to prevent or respond to that kind of warfare, then it's inherently inapplicable, as well as morally invalid. It's a philosophical fig leaf that's meant to expiate guilt and not to assure peace. I just hope we don't all learn that after we see London or LA blown into a crater that makes 9-11 look like...well, I'd say the USS Cole but even you would see the irony in that.

Oops -- I meant to say that an "unlawful combatant" was a mercenary unUNIFORMED terrorist acting on behalf of a warring nation-state (maybe armed or maybe unarmed, but that was a typo). The combatant is UNLAWFUL precisely because he's not in uniform; that wouldn't be unlawful unless you were in a Geneva conflict to begin with. Therefore, neither Geneva III or Geneva IV apply to such a combatant, and the rules which you cite really seek to figure out which warring nation the guy really belongs to, so that he can be treated accordingly.

A war of aggression does not, under the model of Nuremberg, have to be waged with the intention of territorial aggrandizement. It is only necessary for it to be launched without any element of self-defense.

No argument based on violation of UN resolutions makes this not a war of aggression. Probably every country in the world has violated a UN resolution at some time or another, but nothing in the charter of the UN appoints the US as its enforcer - especially when the UN itself did not consent to the launching of this war. It is up to the UN, not the US, to decide whether violations of its resolutions require a stronger response.

No argument based on the first Gulf War applies to what you are conveniently terming the "Second Gulf War". That war had been over for more than a decade. Absent any new threat from Saddam Hussein that would imperil the US's ability to defend itself, any new war would be a war of aggression.

Sound jus cogens principles supported the initiation of the Second Gulf War on humanitarian and genocidal issues alone.

Insofar as any international law exists on this matter at all, it would rule out a humanitarian intervention that took place without the endorsement of any supranational body. The US has the military might to go in anywhere guns blazing, but don't pretend that in this matter it had international law on its side as well. It didn't.

You may disagree with the "case" that was in sharp focus in the press at the time for the Second Gulf War, but that doesn't mean that the other justifications don't exist.

It was up to the Bush administration to make the best case it could for the war it wanted. It is not my fault that they made a bad case, and that the best remaining justifications are rationalizations made after the fact.

it's common knowledge in that community that the "rat lines" ran into Syria. We certainly gave Iraq plenty of time to get things out.

It doesn't matter. Even if you hypothesize (undiscovered) WMD that are different from all the other WMDs whose existence has already been disproved, those WMD would under no circumstances have posed a threat to the United States that would enable it to invoke a right to self-defense. Therefore, this was a war of aggression. There are no two ways about this.

What you can't do is to call our president a war criminal simply because you didn't support the war.

Not a fair criticism. I do not support unprovoked, wildly expensive wars against people not posing a direct threat to us, that tie up a military that could be more efficiently used elsewhere and spend hundreds of billions - often corruptly and wastefully - to achieve nebulous and constantly changing aims.

The GWOT is not a Geneva Convention war to begin with. It is not waged between two high contracting parties.

Rose, the "GWOT" is a marketing term devised by the Bush administration to justify its policies. Most countries try very hard to prevent terrorist attacks. Only one has declared war on an emotion. The wars in Iraq and Afghanistan, given that they involve in each case more than one sovereign state, do fall under the Geneva Convention. The exclusion you refer to relates to civil wars within a country.

The development of weaponry capable of creating mass casualties which is readily obtainable by non-state actors is a very serious change to the game board. Moreover, the notion of what makes a combatant (without the qualifiers) is much different; no proximity to the field of battle is necessary, even when there is a field of battle.

First, this is not new, as the anarchist bombing campaigns of the early 20th century showed. Second, this is merely a justification for putting a country on a perpetual war footing, with all that that entails. If you want to cite the backing of international law for this, you will have to wait for international law to catch up with what you want to do. You can't cite as a legal defense laws that don't exist yet because the international community is not persuaded yet of the merit of your arguments.

Alex, YOU can't cite Geneva for things Geneva doesn't cover or contemplate. It doesn't seem that the International Criminal Court agrees with you about this, either -- if the issue is persuasion of the merit of our respective arguments, I think that's pretty weighty.

With regard to Iraq, you may want to take a look at Resolution 678. Still in effect.

The US Constitution is not designed to protect non-Americans

I'll ask you this question, then, since no-one I've found on this board who holds this view seems willing to answer it. If you're right, then what rights do I have, as a permanent US resident currently ineligible to apply for citizenship (not till 2011)?

If I speak up on any matter, can the government shut me down?

Can the government forbid me to exercise my religion?

Does it need a warrant to arrest me?

Do I merit a fair trial?

Is there anything at all they could do to me that would be unconstitutional?

Because when you say what you've just said, then you're implying that the answer is no.

I have lived here my whole adult life, more or less, and it is deeply strange to be told that I have no rights whatsoever.

The Bush administration justified both the Afghanistan and the Iraq wars by conflating the governments of those states with terrorists. They can't then turn around and declare that they are free to not follow Geneva because they're fighting purely non-state actors. It's contradictory. Perhaps you can explain how those two things can both be true?

You are protected by the laws that protect all lawful residents, but not by the Constitution itself.

I disagree with your fundamental premise. Harboring terrorists is a state act; it's like aiding and abetting or other collateral criminal liability. So there's Afghanistan. The justification of the Iraq wars is the initial invasion of Kuwait and the subsequent failure to comply with terms of surrender and other conditions of international law, together with the humanitarian justifications. I'm always flabbergasted by the anti-Bush people that insist that we should intervene in Darfur, and I wonder about Bosnia too. Would the concentration camps alone have justified our entry into WWII? I should think so.

A captured terrorist has two choices. She can say "yes! I fight for the Kingdom of Saudi Arabia, you pigs!" -- in which case she is an unlawful combatant, if we are at war with Saudi Arabia. Once they claim her, she's a POW. Or she can turn out to be a non-state affiliated jihadist, in which case she is an international criminal under federal jurisdiction under basic posse comitatus principles. If you get caught speeding, Alex, you will be prosecuted under the law of whatever state and town you live in, and protected by the same laws. But if you wage war against us as a nation, local laws don't govern that; they have no jurisdiction.

The problem with this discourse is that the assumption becomes "she doesn't think that the Geneva Conventions apply, so that means she must think we should just torture terrorists and act with utter impunity". Not true, but as a lawyer I know what the law says and what it doesn't. The bottom line is that the current legal structure doesn't contemplate this kind of warfare. It amazes me that you can argue (as I have seen you do from time to time) that the US Constitution is "full of a lot of great stuff" (as though we can treat it like a sushi menu and pick what we like), but outdated and subject to review in some cases, and NOT see that Nuremberg was a product of its time in many ways, some inevitable and some regrettable -- but, most importantly, that there are things it does NOT govern.

You are protected by the laws that protect all lawful residents, but not by the Constitution itself.

As a lawyer, you should know that the US Constitution has pretty consistently been applied to non-citizens and to citizens, and that your radical interpretation is not one that has been used or followed by the courts. Where the US Constitution wishes to reserve a right to citizens, such as the right to vote, it says so, by using the term "citizen". Where it does not reserve it to citizens, it uses the term "people".

This also reflects the terminology of the Declaration of Independence, which conceives of rights as having been endowed to men by their Creator, rather than being able to be granted or withdrawn by a government. Making rights prior to government is one of the chief and best innovations of American constitutional law.

I do not "pick what I like" from the US constitution. My criticisms above are of the Constitution as originally passed, not of the Constitution currently in force. I do fault the Constitution as originally passed for valuing African-American lives at two-thirds of white ones, and for restricting the vote to men, for example, and I am sure you do too.

If it comes down to citizenship status, then do you think that what happened to Jose Padilla, a US citizen who was not captured on any battlefield fighting against the United States, was acceptable? He was declared by the President to be an "enemy combatant", held incommunicado for years without trial and possibly driven insane by it.

Would the concentration camps alone have justified our entry into WWII? I should think so.

I appreciate the spirit of liberal interventionism that lies behind this, but as a matter of international law, you're wrong. A country cannot lawfully unilaterally decide that another country's human rights violations are serious enough to subject that country to invasion and occupation. You would be outraged, rightly, if, say, China invaded the US citing US prison policy as a justification. All countries contain some violations of human rights, so your kind of rule would be a recipe for infinite war.

This is why the United Nations, the WTO and other international organizations exist: to arbitrate international disputes and decide by consensus what to do about them. Bush did not get UN support for his adventure, and he'd be on more solid ground if he had. This doesn't mean the UN gets a veto; but UN support is an index of consensus that violations are serious enough to require intervention.The US does not have the right in law to determine unilaterally that "Iraq has failed to comply with terms of surrender and other conditions of international law."

Yes, Nuremberg was a product of its time; but its precepts are still considered important in war crimes prosecutions. It may not be perfect, but it is the law, and we're talking about whether Bush violated international law in the invasion of Iraq. I fully understand that you think he was morally right to have invaded, but that is a distinct question. I also understand that you think international law ought to have permitted him to invade, but it didn't. Let's stick to the question of whether it did permit him to invade, hey?

A captured terrorist has two choices. She can say "yes! I fight for the Kingdom of Saudi Arabia, you pigs!" -- in which case she is an unlawful combatant, if we are at war with Saudi Arabia. Once they claim her, she's a POW. Or she can turn out to be a non-state affiliated jihadist, in which case she is an international criminal under federal jurisdiction under basic posse comitatus principles.

No, not quite. The Geneva Conventions make clear that she would be presumed to be a POW automatically until her status is reviewed by a competent tribunal that determines her to be an unlawful combatant without state affiliation. If a competent tribunal provides that review, then she must be charged or released according to normal procedures of international law. The Bush administration never brought the Guantanamo detainees before a competent tribunal, and we are only now putting them through the process of determination that enables one to assess whether they are unlawful combatants or not, in line with the Geneva Conventions.

I understand that it may be that the drafters of the Convention did not envision this particular type of war. Like any drafters, they can't foresee everything. But until the Conventions change, the US is obliged to work within what it signed up to anyway, not to unilaterally carve out a new category of prisoner and declare the Convention inapplicable to that category, which is what the Bush administration did. As currently drafted, the Conventions do require detainees to be treated humanely.

Here is James Madison, the principal framer of the Bill of Rights, on the matter of whether the Constitution applies to non-citizens ("aliens") (the excerpt is from his Report on the Virginia Resolutions, which criticized the 1798 Alien and Sedition Acts):

Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.

Says Eugene Volokh, a well-respected and fairly conservative online legal analyst: "The Supreme Court has endorsed Madison's view at least since Wong Wing v. U.S. (1896) as to the criminal procedure provisions, and in Yick Wo v. Hopkins (1886) (also unanimously) as to the Equal Protection Clause racial equality principle. Aliens might be deportable for their speech, but they cannot be otherwise punished for it, nor can they be criminally prosecuted in the civil justice system without the normal constitutional protections."

Volokh also goes on to say that Madison may have been either in the minority or majority on this. I gave a relatively flippant answer, but I was referring to the 14th Amendment.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's a question of what laws can be enacted, and a question of whether laws can be applied unequally. That's what I meant when I said that the law protects you while the "Constitution" does not. That is not a "radical" reading.

I deal with the Constitution daily in the context of the Takings Clause, which, as to the taking of property, has no qualifier (it's the nature of the ownership that matters).

Volokh also goes on to say that Madison may have been either in the minority or majority on this. I gave a relatively flippant answer, but I was referring to the 14th Amendment.

I'm sure you also saw that he says that the Supreme Court has accorded 14th Amendment protections to non-citizens since the late nineteenth century.

My presence in the United States is a privilege. Under current law, I would have to do pretty bad things to merit deportation, but laws can change regarding green card holders without violating the Constitution.

My point is that I am still, so long as I am here, according to the Supreme Court, entitled to the protections against state action enshrined in the Bill of Rights and the Fourteenth Amendment, just as any citizen is. Therefore, it is grossly inaccurate to say that the Constitution only applies to citizens. That would imply, as Madison says, that "Congress has an absolute power" over me, unfettered by the Constitution, which it does not have.

Actually, a law does not have to be constitutional to be enacted, and a government action is sometimes not enabled by a law.

you can't be treated differently than I am under those laws, INCLUDING the laws about search, seizure, arrest.

Constitutionally, no, but de facto, yes. Congressmen may swear to uphold the Constitution, but they routinely propose and sometimes pass Constitutionally dubious legislation, which, till a lengthy process of litigation overturns it, becomes the law of the land. So it is quite possible for a law like the Military Commissions Act to be passed that does not treat green card holders equally with citizens under the law, according to the latter but not the former the right to a fair trial.

As we saw with the Bush administration, the executive may even do things that it does its best to keep secret that it knows to be illegal, like torture and warrantless wiretapping, and without the knowledge and consent of Congress there will not even be a law whose constitutionality can be challenged in court.

As a non-voter, I hardly have much pressure to bring to bear on Congress or on the executive not to do things that discriminate against non-citizens. It is necessarily up to those who have a voice to speak up on behalf of those who have less of a voice. Otherwise, non-citizens are very easily demonized.

It's a while since I have read them both. The debates over on scotusblog.com were really interesting at the time of Boumediene, but I don't remember the details.

Let me see if I understand you right. You said at the beginning that "the US Constitution is not designed to protect non-Americans". I think this means that in your view, for American citizens, it's not simply enabling legislation, but a guarantee of individual rights. For non-citizens, the Constitution is simply enabling legislation, and non-citizens residing lawfully in the US are protected only by laws, which if lawful would automatically be Constitutional too.

I could make sense of your position if you argued that for everyone, the Constitution was merely enabling legislation, and that in the narrow sense you were talking about at first the Constitution protects nobody's rights. As originally passed, perhaps that would be true; but it would not really be true since the passage of the Bill of Rights and particularly of the Fourteenth Amendment. I think we have had since then a Constitution that protects individual rights, and that that includes non-citizens as well as citizens.

Don't get me wrong. I don't expect that governments will never, ever violate the Constitution. I devoutly hope that the judicial branch will be able to continue repairing the damage that has been done, and that the new Justice Department will hold people accountable for torture in particular. What I do think is that people who don't have your legal training have taken statements like yours above - "the US Constitution is not designed to protect non-Americans" - and have misused them in precisely the way Madison feared, to pass laws that place non-citizens outside the Constitution and deprive them of habeas rights.

My habeas rights were restored, but I dislike intensely that they were ever taken away. People don't take this stuff as seriously as they should. I don't think the Bush administration should have made all of the endless gyrations it did make to prevent its detainees from having the protection of the law and the right to challenge their detention in court. It damaged immeasurably America's moral authority in the fight against terrorism, and we'll be feeling the effects for decades.

Only today, the Red Cross, which is tasked with determining whether countries are adhering to the Geneva Conventions, has produced a report on CIA black prisons that states that 14 named detainees were tortured there. We are only at the beginning of a stream of news reports about the terrible things done in our name to people whom, in many cases, we made no effort to find out whether they were really guilty or not. Each of those reports will deal a deeper blow to American prestige and American ability to influence the world for the better. That is something we can all regret.

The Constitution was designed to be enabling legislation. It is still primarily that. It's a limited and limiting grant of authority. If you look at the First Amendment, which ensconces what a lot of people readily refer to as "Constitutional rights", it's a limitation on laws in its plain language. 2,4,5,6 are really the only ones that refer to "people". The 14th Amendment, as I think I have pointed out, uses both the term "citizen" and "person", which, as a general principle of statutory construction, has to be read with the assumption that the drafters meant to treat them differently. So, like I said, equal protection and due process, yes, but privileges and immunities, no. You have to read the language and think about what it actually says.

Would you argue that the Constitution as drafted originally pertained to Native Americans -- who were dealt with by treaty as extra-sovereign?

Also, Alex, none of the case law says that non-citizens have habeas rights....it says that you have to have rights that are roughly equivalent. Eisentrager found that, and actually so did Boumediene -- but in Boumediene the split was 5-4 on whether the rights were equivalent. Since they weren't, the MCA was struck down as a suspension of habeas, but if a 'separate but equal' (if you will) protection were found to have existed, that would not have been the case. I think you may be confusing the technical "habeas corpus" rights with the more general concepts they entail. I'm making what's probably a too-clever technical argument, but that's what the law is -- it's not always about what the subjectively 'fairest' result is. Additionally, at the point where any non-citizen enters this country, he or she does so with the full ability to explore and review their legal rights -- it's 'coming to the nuisance', so to speak. Legal residence here is (technically) a privilege and immigrant citizenship even more so -- you know that better than I do. The moral fitness stuff alone - they can't condition my continued citizenship on it, certainly.

I don't know what a good "right" answer is on the GWOT (and you can hardly sneer at that acronym as a "marketing" device when you want to apply the Geneva Conventions to its combatants) -- but I do know that there are very sound reasons for not trying enemy combatants in our courts. Security reasons, for one. On balance, I think it makes more sense to treat such people as foreign soldiers rather than domestic civilians for that reason, but the inescapable fact is that Geneva is essentially a treaty, and parties who do not subscribe to its limitations should not avail themselves of its benefits, either. If that's done on any broad scale, the entire set of rules will surely collapse, in addition to the fact that it grants a major advantage to non-state hostile entities that we simply cannot overcome by honoring a treaty to which they are not a party. If I went to (say) Canada, and tried to blow up a building, just because I don't like Canadians, would the Geneva Conventions protect me? Of course not. (Actually, I am not sure that the lower court decisions in Canada suspending habeas corpus for al-Qaeda detainees has ever been overturned....just FWIW.)

I think we need an international consensus standard of conduct for non-state international warfare. I imagine it will be somewhat lower than Geneva, but the real problem is that criminals don't usually follow laws, and so what's the recourse if they don't? We are not likely to get one any time soon, for reasons I've stated. However, the Bush administration tried to split the difference, and I'm not saying got it 100% right, but there are issues with the other available mechanisms and Obama has not articulated any reasonably feasible alternative and, what's worse, is trying to act like he has.

Thanks Scott!