Charles Brown posted a note on this thread, and I read it at work quickly. Unfortunately, the archive is down, so I can't pick it back up (Charles, repost it off-list, if you are interested). Instead below are excerpts from:
http://writ.news.findlaw.com/dorf/20020123.html
``...Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.
Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially...''
It is important to read the decisions in these cases and the Geneva Conventions in order to understand the concepts involved, and this article doesn't do a thing to explain any of that. So, let's back up.
Among the concepts involved is, it is not a crime to be a solder (Quirin), therefore solders are lawful combatants. As such, when they are captured, according to Geneva Conventions, they are entitled to various rights and treatment by their captors. The basic concept of that treatment is its approximate parity with rules, conditions, and treatment of the military forces of the adversary.
If a POW commits a crime while in enemy custody, they are subject the military codes of the adversary, which must include a list of charges, evidence, and a trial before a military tribunal under the rules of military justice (GC article 82).
The concept of a military tribunal is used under the Geneva Conventions to discipline and punish enemy prisoners of war who commit crimes while in confinement, and have therefore become unlawful combatants. Just as military personnel in any army are subject to the codes of military justice and are to be charged, tried and convicted or acquitted before a military tribunal, so too are the prisoners of that military. This accords with the concept of approximate parity of conditions and treatment between nations military and the captives of their adversaries during war. If the detaining power declares acts committed by prisoners to be punishable, and the same acts are not punishable if committed by the forces of the detaining power, then those acts can only entail disciplinary punishments (82).
In cases tried by military tribunal, if the proceeding is be judicial, (beyond mere disciplinary punishments), then the detaining power must notify the protecting power at least three weeks before opening trial (beginning when notice is received, not sent!). Information to be included is, identity (name, rank, serial number, etc), place of confinement, specification of charges giving legal provisions of the charges, designation of the court along with location and opening date. And the same notification must be made to the prisoner and their representative (104). Accused has right to defense counsel, interpreter, etc -- all the usual, including the right to appeal and right of the protecting power to be present (105).
Notice here, these are POWs who have become unlawful combatants, by virtue of committing crimes while interned. Even in this degraded status, they have more rights than those currently held in Guantanamo.
To the question of whether either a US Executive order or US Defense Dept declaration is sufficient to determine the status of captives held by US military authority, the answer is no---at least according the GC. Neither the executive nor his appointee constitute a competent tribunal. To re-quote, the Geneva Convention that applies:
``Article 5
The present Convention shall apply to the persons referred to in Article 4 [lawful combatant] from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.''
So, whatever their current status, prisoners are to be treated as POWs, until a competent tribunal has made a determination.
Among the basic obligations of treatment of POWs under the Geneva Convention (70, 71, 122, 123) are the provision of identity cards and mail service provided free by the detaining power. The prisoner may write to the Central Prisoners of War Agency (123) and inform his/her relatives of capture. If for some reason this obligation is impossible to fulfill, then the International Committee of the Red Cross may undertake to ensure the conveyance of such shipments (mail, allowed parcels, etc).
In other words, the prisoners must be identified and notice of their detention given outside the ambit of the detaining power. There is no such thing as prisoners held incommunicado, let alone charged, tried, convicted and executed in secret.
The number of violations of the Geneva Conventions is really too numerous to go through. There are at least a dozen or more, based just on news reports, and the complete lack of information coming from the US government.
It the US proceeds, it seems to me the US becomes formally subject to charges of committing war crimes in the treatment of prisoners.
Chuck Grimes