My latest column, bringing these arguments to my newspaper readers, is up. I’ve phoned both Sen. McCain and Sen. Graham’s offices for comment, and will report back any reaction of interest.

Meanwhile, Lee Casey and Darin Bartram, who have written cogently on this topic, shared the following thoughts with me:

The bottom line is that the Administration’s critics refuse to accept that the detention of an enemy combatant during active hostilities is fundamentally different from the confinement of an individual on a criminal charge. All of the due process rights, to a lawyer, to an impartial tribunal, to know the charge and evidence, do not attach until — and unless — a criminal charge is brought. When a determination is made to pursue a criminal conviction against a detainee, which would permit the U.S. to hold him even after hostilities end, then the detainee is entitled to the due process guarantees characteristic of military courts and — as you note — approved by the Supreme Court in Quirin. As you also correctly point out, only four of the detainees have been designated for criminal prosecution so far, and these cases are on hold pending appeals into the civilian system.

Overall, it is not accurate to claim that the detainees have not been given an opportunity to challenge their status. They have been given that opportunity fully in accord with the ground rules established by the Supreme Court in the Hamdi case. There, Justice O’Connor made clear that a process comparable to that required by Article V of the Geneva POW Convention would be sufficient, and this is exactly what the military adopted with the Combatant Status Review Tribunals. This was a plurality opinion, but on this point she commanded a majority of votes on the court.

The press has not covered this issue well. Indeed, whether intentionally or unintentionally, much of the MSM has failed to grasp the fundamental differences, long recognized in the laws of war, between holding individuals to prevent them from returning to the fight, and holding them on a criminal charge.

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