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. (citations)
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CB: The factual difference I see between the prisoners in Guantanamo and the Germans in Ex Parte Quinn is that the former did not come into the U.S. secretly, rather the U.S.military went to their land and captured them.
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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
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