A Memorial Day weekend doubleheader.  First up this post, in response to an interesting segment of the Rachel Maddow Show about what the president calls "prolonged detention" First, though, please watch  Rachel:

I share Rachel's concerns that "prolonged detention" as I gather the President called it, not get out of hand. In retrospect, perhaps the use of the phrases to designate certain persons as "enemy combatants" should not have been ended, but redefined in a lawful manner from the ad hoc Bush days, yet it must be noted that people who are prisoners of war are not held because they have committed a "crime" against us, but because they are part of a military force at war against us.

Of the many mistakes made when the wars in Afghanistan and Iraq began, one was in not doing something more formal to express this state of war. (The War Powers Act, while somewhat well intentioned, represents more an abdication of congressional responsibility for these things and this murkiness is one of its consequences.)

In a "normal" war, it is easy to determine who is such a prisoner since her or she wears the uniform of the country with which we are at war. See Geneva of 1949, Art. 4. It becomes complicated when pepole who are fighting are not in uniform, though this is not the first time this issue has been encountered. For instance, the forces which continued to fight against the occupying power in France during World War II, or those who resisted the illegally established governments in Slovakia, did not wear uniforms and, indeed, were not fighting on behalf of any "state" which Germany considered to be in existence or with which they were at "war." Geneva itself recognizes this issue in various provisions, see subdivisions 2 and 6 of Geneva of 1949, though perhaps not in every conceivable way it could come up.

The way in which most countries (I do not include Nazi Germany as an example of this, but let's try not to use them as a model.) have dealt with this legal conundrum is to simply hold those prisoners in the same way as they would regular prisoners of war. That was how we treated captured members of the NLF (the so called "Viet Cong") and the basis for demanding that North Vietnam, with which we were not "at war" treated its prisoners who were members of our military forces.

It was the Bush administration which decided these rules were "quaint" and would no tbe followed. I believe the current administration has returned to the former practice.

Hence, the issue is not whether a prisoner has committed an act of "terrorism" or a "crime" for which he ot she is "guilty" or not, but whether the prisoner is part of a military force in some form of war against the United States. It is an absurdity to argue that such a person must be "returned" to that military force to resume fighting against us. Under article 118 of the currently applicable Conventions such prisoners (not subject to release for ,medical or other reasons) must be "released without delay after the cessation of active hostilities." (The state of war between the United States and German existed, I believe, until 1952. Prisoners of war (not war criminals) had to be repatriated shortly after V-E Day and they were.)

When does that occur in Iraq and Afghanistan? I don't know, but despite President Bush's famous claim that Keith Olbermann always talks about, we have not reached that point yet with regard to either war. Those are the decisions: is the prisoner essentially held as a "prisoner of war" and when should the prisoner be released that should not be a single man's decision to make: that was what the President was talking about yesterday. He should be commended for that view.

Those who are not held as prisoners of war can only be held as criminal defendants, in my view, and it is there that your "preventative detention" concerns make sense. I do not, however, believe the President intends for indefinite imprisonment of those not considered to be prisoners of war. If he does, he is wrong to do so.