Updated: James Jay Carafano has responded in the comments. The points he makes are fair, in my opinion, and form a very legitimate argument. Nonetheless, his original column is still a bad one in that it doesn't address the issue of the proper way to determine guilt or innocence but simply assumes guilt in all cases. It really would be good if in future writings of this sort if the people arguing against civilian trials for terrorist suspects emphasized why they believe that military tribunals are a better system for trying these cases rather than simply eliding over the question of guilt or innocence.
That's essentially the point he is making here.
The thing that annoys me about all of this talk about whether or not terrorists have rights is htat he nowhere acknowledges the possibility that any of the people detained may not actually be guilty. From the arguments he uses, one would suppose that those who capture people are allowed to act as judge and jury.
And talking about POWs and how they do not have rights of habeas corpus, etc. is misleading, because the rules for POWs assume an actual conventional war with armies and a defined ending point. Referring to an attempt to stop such a nebulous force as "Islamic extremism" or "terrorism" as a war is in essence an excuse to suspend civil; liberties indefinitely, which is why looking at our fight against terrorism as a war rather than as law enforcement is so wrong-headed. Of course, the neocons will oudly bray that looking at this as law enforcement is wrong and was a huge problem of the 1990s. But is creating in effect a permanent state of emergency any better?
Even the wars in Iraq and Afghanistan are no longer wars in the conventional sense, and so using the old POW rules allowing detention for the duration no longer apply.
Do not get me wrong, unlawful combatants ought ot be punished. But we need to make certain that they are unlawful combatants first, which means in essence that we need to try them.
Also, statements that unlawful combatants do not deserve Geneva protections or the protection of their rights is also fallacious, because it begs the question of whether the people on trial are guilty. This is particularly true when one makes a big deal about how the combatants dress to blend in with civilians and so forfeit their rights. The obvious point missed here is what if the people you captured actually were innocent civilians?
That is all.