In a recent post, I argued that the recent decision on the status of "non-uniformed combatants" was important because the court was simply ignoring the logical implications of their decision. I have seen it argued that that is not the case, as the court distinguished this situation, lacking a formal declaration of war, from those situations where war is formally declared. To which I reply "Griswold".

The Griswold decision is the predecessor of Roe v Wade. The case centered on the question of whether the state could deny the sale of contraceptives. The decisions was that the state could not, because married couples had a right to privacy which prevented the state from interfering in the decisions of married couples regarding issues such as procreation, and by banning the sale of contraceptives the state interfered with this right for married couples.

The important part is that Griswold was very clear that this right was limited to married couples and their decisions. The law banning sale of contraceptives was invalid only because it interfered with a right of married couples, and, presumably, had the law only prohibited sales to unmarried people, it would have been constitutional. The right was strictly limited by the court, it applied only to decisions about procreation made by married couples. And eight years later, that restriction went out the window, the right to privacy was found to apply to all decisions about reproduction regardless of marital status. The explicit limitation of the right was gone.

So those court limitations mean nothing when the logic of the decision, or the whim of the court, cut against those limitations.

And I would argue the same is true of the Boumedine decision.

The Boumedine logic is that there was no formal declaration of war, only a congressional authorization of military action, so those we hold are not prisoners of war. I have argued elsewhere that this means we also had no prisoners of war in Korea, Vietnam, Granda, Panama, or, for that matter, Kossovo, Bosnia,  Somalia, or the first Gulf War. In fact, we haven't had prisoners of war since World War II by this standard. I'm sure John McCain is happy to know that he was not a POW, but apparently was just arrested by the Vietnamese.

As a short aside, it is amusing that the supreme court is all for "developing standards" when it comes to liberalizing things, but they will not accept that there is an evolving standard that war is no longer formally declared by conducted by informal authorizations of military force. But as that apparently is the case, I suppose we have to deal with the decision as it stands. Not being a Supreme Court justice, I can't pretend that things are other than they really are.

So, what is the logic of this ruling?

If the US does not formally issue a declaration of war, but does send in troops anyway, as we have in every conflict since World War II, then we are not capturing prisoners of war, but just arresting people. I suppose this also means that if our troops are attacked on peace keeping missions, they too are arresting people and not taking POWs. And even if our troops are attacked by those of another nation, until congress can declare war, I suppose in that case we are arresting them as well*. In short, barring a formal declaration of war, our soldiers have become some sort of adjunct police force we send overseas.

This is simply absurd.

Let me give a fictitious example, but one fully covered by the rules. Four mean fire on our troops in Iraq. We shoot three, and capture one.  That is fine, as Congress "authorized military force", so killing them is not a problem. However, the fourth is not a prisoner of war, he is suddenly a criminal defendant. We have to show why we are holding him, and grant him all the rights of a criminal defendant.

What if the military can't produce evidence that he actually fired a rifle? Do we have to release him for insufficient grounds?

Actually, that raises an interesting question, on what grounds can we hold troops, such as those in the first Gulf War, who surrendered without firing a shot? We have no grounds to hold them that I can see. If they were POWs we could hold them until hostilities ceased, but lacking a declaration of war, it appears we are just arresting them and there really are no grounds on which to hold them.

I know, I know, it sounds absurd to talk of grounds and evidence when discussing enemy soldiers and terrorists fighting our troops. It IS absurd. But that is the outcome of this silly decision. If they are entitled to habeas corpus then we need to have grounds to hold them, which presumably also requires evidence. So our troops now have to stop after each conflict and gather some evidence to use to hold the enemy. Don't blame me for making this absurd, it just IS absurd.

Now, some will argue, all Congress has to do to avoid this is declare war, but, as my title suggests, that will not stop this.
 
Imagine some future conflict. We have declared war, but the enemy has fought largely out of uniform. As a result we are holding hundreds of non-uniformed combatants at Guantanamo. Under the rules of war we can execute them if we wish, do anything we want.

However, they have a clever attorney. He goes to the Supreme Court and argues that his clients deserve the same protections during a declared war that they have during an undeclared military action. Why? Well, during a declared war troops get the greater protections of the Geneva Conventions, why should non-uniformed combatants get LESS protection? They should at least have the same protections they have under Boumedine. It may take a dozen appeals to get it granted, but there would doubtless be hundreds lined up to try.

And, once that happens, then the POWs would try as well. Their argument is even better, as they would ask why they merely get Geneva Convention protections while the non-uniformed troops get full protection of a criminal defendant. They could even ask why they should have better legal protection if they throw away their uniform than if they keep wearing it. And so, eventually, this decision will come to cover all combatants, in and out of uniform, with or without a declaration of war.

Time to print camouflage Miranda cards and order a bunch of khaki evidence pouches, as our troops have suddenly become just another police force, whether the court says otherwise or not.

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* If an enemy first strike takes out Washington and we are unable to declare war during an invasion of the US, does this mean we must retreat all of the invaders as simple criminals? Admittedly, it is unlikely, but the outcome is consistent with the logic of this ruling and the absurd emphasis it places on the formal words "Declaration of War".