There was a question posted about where the term `unlawful combatants' came from. I certainly wondered, and decided it was bullshit. Well, that was wrong. It is cited in Ex Parte Quirin 317 US 1,(1942) 30-31:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. 8 The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.
[http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court
=us&vol=317&invol=1#30]
This distinction is used in Johnson v. Eienstrager (1950 S.Ct) in the dissenting opinion (Black, Douglas, Burton). See:
``...There is not the slightest intimation that the accused were spies, or engaged in cruelty, torture, or any conduct other than that which soldiers or civilians might properly perform when entangled in their country's war. It must be remembered that legitimate "acts of warfare," however murderous, do not justify criminal conviction. In Ex parte Quirin, 317 U.S. 1, 30 -31, we cautioned that military tribunals can punish only "unlawful" combatants; it is no "crime" to be a soldier. See also Dow v. Johnson, 100 U.S. 158, 169 ; Ford v. Surget, 97 U.S. 594, 605 -606. Certainly decisions by the trial court and the Court of Appeals concerning applicability of that principle to these facts would be helpful, as would briefs and arguments by the adversary parties. It should not be decided by this Court now without that assistance, particularly since [339 U.S. 763, 794] failure to remand deprives these petitioners of any right to meet alleged deficiencies by amending their petitions.
[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court =US&case=/us/339/763.html]
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However, in the Clergy v. Bush Order to show cause, Re Jurisdiction only the latter, Johnson v. Eienstrager is cited.
Of course this ignores the fact that most of the wars the US has fought since these cases involved theoretically unlawful combatants like the Viet Cong and this distinction was never used.
Chuck Grimes