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I think that too much has been made of the facts that the folks down in Guantanamo are being granted rights that are guaranteed under The Constitution.  That somehow giving these guys the rights to question their detention is something that is unique to America.  With very little work, it can be seen that these rights began to be articulated long long ago, in fact, according to Wiki, we begin to see them form in 1305.

As such, the fact that our Supreme Court has extended the rights as such should not be so controversial.  In fact, the idea that they should NOT be afforded the rights would be much more newsworthy.  The problem many of us have, however, is the official designation of the detainees.

I have always felt that participants in the War OF Terror (read: The Terrorists) are NOT soldiers.  They are not members of a regular and lawful Military Organization.  They do not meet the wherefores and the how to bes of the Geneva Convention.  That is, they are NOT Prisoners of War.  Rather, they are simply foreign nationals found to be conducting illegal activities.  Activities against the USA or, perhaps, against civilization.  Because they are not soldiers, that is protected under the Geneva Convention, they can not be held until the end of the conflict, or in this case, the war.  Similarly, we are under no obligation to treat them in accordance or in the spirit of the Convention either.

But, because they are not Prisoners of War, they are criminals.  Or, more specifically, potential criminals.  That is, detainees who will at some point be read their charges and tried in come form of court of law.  That seems straight forward.  If they are bad guys, and we know this to be true, then charge, try and if applicable, jail them.  If we have no evidence, then we should release them.  Period.

In all of this, however, I find no compulsion to afford them the rights of American criminals in our American judicial system.  It would, in my mind, be just fine to charge, try and if guilty, punish these guys in a military tribunal.  Or something.  Or, like, anything.

But, in the end, we can not just hold these guys forever.


So, the court decided that the detainees in Guantanamo have rights. From what I can tell, these rights are those spelled out under what is known as habeas corpus. Basically, this is relief from unwarranted detention. Further, I think the court gave these detainees rights to habeas corpus in US civilian courts.

So, here is what I think.

  1. These individuals are not part of a state sponsored army.
    1. They do not wear uniforms
    2. They do not adhere to a rigorous command structure influenced by the state “leader”. <President or King>
  2. As such, they are not protected under the Geneva Convention.
  3. They do, however, have some form of rights structure; Habeas Corpus.
  4. They are not US citizens and are not entitled to grieve their condition in our civil court system where they have rights that are the same afforded to US citizens.

Now, I am no lawyer, but I would imagine that there is a large difference between civil trial and military trial. Other than that, I find nothing wrong with giving these guys the right to relief from unwarranted detention.

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