re: Declaration of War - IIRC, the wars in Afghanistan & Iraq meet your definition (i.e. a country was named) - they do Not say "The US declares war on Iraq" which is what I was refering to about the "outright declaration. I understand your point regarding an "AOF" and would support your position if I thought we had enough Congress Critters with "balls" - nowadays everything is CYA and an outright delcaration would almost NEVER be forthcoming.
Last point regarding "war" - the Geneva Conventions make no stipulation between a declared and undeclared war - the rules are the same.
Not sure what your point is at 2. in your reply. You seem to be trying to make a distinction between occupied territory and land used by the military / US Soil. As far as detainees are concerned, the rules are the same - occupied territory is effectively under US jurisdiction for all intents and purposes.
On point three, I think we are misconnecting - the purpose of detention of "combatants" (lawful or otherwise) is NOT prosecution but denial. The enemy is denied the use of those captured for the duration of hostilities. A detainee is not automatically considered a criminal. [Sometime] After hostilities cease, the detainees are generally released back to the jurisdiction of thier government.
Even "unlawful" combatants are often treated this way as there is generally no "real" criminal charge that can be brought against them (remember that any civilian who "picks up arms spontaneously" is considered an "unlawful" combatant). In such a case, it would be imprudent of the military to release him while hostile actions continue as he is likely to "rejoin" the enemy. There is also no "crime" involved (he has as much "right" to defend his country as anyone else).
This is essentially the reason that I wrote that, because the War on Terror is not a conventional war with a "known" enemy, we need to have "rules" which define some important aspects of that war. I agree that Congress has abrogated it's responsibility in this (the war). That's why I think that the AG and the military need to work out some definite rules and have Congress approve them. Furthermore, the "tribunal" I picture is one modelled after the FISA Court - it would be a place where "questionable" situations could be resolved (Padilla would be a prime example).
I understand your point regarding an "AOF" and would support your position if I thought we had enough Congress Critters with "balls" - nowadays everything is CYA and an outright delcaration would almost NEVER be forthcoming.I should also add that the White House was adamant that it not be termed a declaration of war.
Last point regarding "war" - the Geneva Conventions make no stipulation between a declared and undeclared war - the rules are the same.
That may be true of the GCs (I haven't studied them), but it's not true of the U.S. Constitution. It's for that reason that how the supreme court rules in this case isn't necessarily going to affect our conduct during a declared war. And if Congress were to actually declare war against some tangible enemy, the President would have a much stronger hand in these cases.
As far as detainees are concerned, the rules are the same - occupied territory is effectively under US jurisdiction for all intents and purposes.
Occupied territory in war isn't under any kind of official civilian jurisdiction. It's just a temporary military jurisdiction that exists only as long as the need exists.
On point three, I think we are misconnecting - the purpose of detention of "combatants" (lawful or otherwise) is NOT prosecution but denial. The enemy is denied the use of those captured for the duration of hostilities.
For the executive, that's the overriding concern. For the judiciary, on the other hand, the concern is making sure that the executive doesn't have the wrong guy in custody. I understand that traditionally, judges don't get involved in POW situations like this, but again, that comes back to this whole declared/undeclared war business.