I've been thinking about the nature of battlefields. A battlefield isn't declared by a judge, passed by a legislature, and there is no executive order signed by a president declaring one. Yet the 2nd Circuit appeals court seems to be declaring that if you are on one, you can lose your civil rights and be held outside the judicial system of the US. Conversely, if you are not on a battlefield, it does not matter that you otherwise fit the category of a US citizen enemy combatant, you must be charged with a crime and tried in a civilian court.
This is not judicial overreach but rather something in the tradition of Ex Parte Milligan the US Civil War case that freed an Indiana man from hanging based on his antiwar activities. But this doesn't mean that the case was decided rightly (it's being appealed) but rather that the executive has paid insufficient attention to clarifying what is or is not a battlefield and the court has shown that this is a vital issue that must be resolved in order to safeguard our liberties in a war that is mostly 'behind the lines' work.
What I suggest is that there be some process for declaring a battlefield, something that is related to but legally independent of any spies, saboteurs, or infiltrators that are the cause of the declaration. When such battlefields are declared, people should be notified of the designation and should view this as a failure on the part of the government to keep the US safe. Calling a "camo alert", which would change the rules on civil rights is not something that should be done lightly or without cost on the territory of the United States.
Furthermore, a failed declaration of a battlefield would be a serious sign of true incipient tyranny and should be treated with the utmost seriousness. We can't have an executive declaring willy nilly, that war zone rules are imposed on an area just because it would be convenient. Convenience would dictate ever more frequent "battles" and our rights would become a hollow mockery.
Now I'm not a lawyer, and the details would have to be worked out by people more expert in the field but the basics seem simple enough for the average layman to judge and use that judgment in the next election. Flying by the seat of the pants is excusable at the beginning of a war. For a conflict that is projected to last as long as the War on Terror we can't maintain that indefinitely. The DoD and Justice need to get together and work out procedures on this and the Congress needs to consult with the judiciary and get a workable framework passed as legislation.
Posted by TMLutas at January 7, 2004 09:48 AM