Law and War are Not the Same

Bush understood this idea, and so, by some appearances, does Obama. But he has not been permitted to admit his understanding by his base. In the New York Post, Robert Turner of the Center for National Security Law lets the cat out of the bag:

Indeed, detaining enemy combatants for the duration of hostilities without charge or trial is a long-recognized and lawful practice. Thus, the United States held more than 400,000 German POWs (and many Italians, too) at detention camps spread across 40-plus states -- without lawyers, charges or trials -- until World War II ended.
Before citing the 1949 Geneva POW Convention, critics should be aware what they actually say. Article 84 states: "A prisoner of war shall be tried only by a military court." And Article 97 says: "Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.)." [Emphasis added in both cases.]

To engage in war is not a criminal act. Al-Qaeda and others declare themselves to be at war with the United States. We are respecting their position by detaining them until such time as a) their belligerence is no longer considered a threat, or b) the cessation of hostilities. That the military authority should make these determinations is entirely just and appropriate, unless you operate from the assumption that soldiers are nothing more than blood-crazed robots incapable of exercising human judgment.

But that is not the worst of it:

But a different issue ought to concern the ACLU: Civilian trials of these terrorists run a real risk of contaminating our own legal system.
For starters, such trials should plainly proceed in accordance with the applicable rules of international law -- rules that do not include the full panoply of protections provided by the Bill of Rights (which doesn't even apply fully to our own armed forces), Miranda warnings or our exclusionary rule.
Nor should we risk setting a precedent by holding the trials under US criminal law: Would we want some future Adolf Hitler or Saddam Hussein to have the right to try captured US soldiers under their domestic criminal laws?

In other words, bringing terrorists into the legal system will cause the legal system to become more warlike, and less free. The irony, it is supreme.