Hi Joe Stocks,
I think you're right that the Supreme Court's decision gives Bin Laden the right to habeus corpus. You've raised a good point: does this mean NATO forces are prohibited from killing him in action?
I don't think so. I think the Supreme Court's decision simply says that non-POW "detainees" at Gitmo--who were not, in general, captured as enemy soldiers on any battlefield--have the right of habeus corpus--that is, the right to appeal their detention. The right of habeus corpus is not just a foundation of American law, but a foundation of all modern law stretching back hundreds of years. The repercussions of denying habeus corpus have been well-described already on this thread.
If Bin Laden is captured, then he should stand trial--at the very least, to prove that he is Osama Bin Laden and not Bin Loden (as has been pointed out). That does not mean coalition forces cannot use lethal force against him, as long as he is directing an armed enemy group in combat. Or, as long as he is a fugitive from the law and he is considered highly dangerous/a national security threat. Either way, as armed fugitive or enemy soldier, he has had ample warning and time to surrender peacefully.
As it happens, I do hope he is captured alive and stands trial.
I think kai put it well:
kai said:
he is in a combat zone leading insurgents against coalition forces if he is killed in action thereis nothng ilegal in that , if he is captured then he must stand trial. no different than an IRA terrorist or a Baader-meinhof
To answer your questions,
Joe Stocks said:
1. Do enemy soldiers have rights?
Yes, via the Geneva Conventions. That's why the Bush administration insists the Gitmo detainees are not enemy soldiers. The Geneva Conventions include the right not to be tortured. And one thing that tends to be overlooked: a captured "enemy soldier", or POW, has not necessarily committed any crime. Nazi POW's captured during WWII were not jailed indefinitely; they were released as soon as hostilities ceased between Germany and the Allies. Nazis who were accused of "crimes against humanity" were not summarily executed upon capture; nor were our planes prohibited from bombing their hideouts during hostilities. When captured, those Nazis who were accused of crimes beyond their role as "enemy soldiers" stood trial, not least of all to confirm their identity. Some of them were found not guilty of crimes against humanity, and released after the war ended. The same should be the case for "enemy soldiers" captured in combat with coalition forces in Afghanistan and Iraq, i.m.o.
But then, many "detainees" at Gitmo were not picked up anywhere near a battlefield and are NOT considered "enemy soldiers", not even by the Bush administration. Clearly these people should have the right to a hearing.
Joe Stocks said:
2. If no to question (1), do enemy soldiers get rights when they are captured by our military?
I said 'yes' to question(1), so I guess I'm off the hook here.
I would just point out that, i.m.o., some of the disagreements on this thread can be avoided when one considers the possibility that an individual can be, at once, BOTH an armed fugitive from the law, AND an enemy soldier/general. I think Bin Laden is such a case. The 9/11 attacks were a crime. Leading groups of armed men against our troops is warfare.