Ace of Spades: Home of Off-the-Cuff Bullshit Later Confirmed By Real People

Volokh, today, July 7:

But why not try them, then, some people ask? Well, as to enemy soldiers who were fighting in uniform as part of a disciplined force, there's nothing to try them for: Fighting as a soldier who complies with the laws of war is not a crime. (If one weren't fighting in a war, one would surely be committing the crime of attempted murder, but being a soldier who fights according to the laws of war is actually a good defense against that charge, subject to various caveats.) They aren't being locked up to punish them for a crime; they are being locked up to prevent their engaging in lawful but deadly attacks on us.

Enemy terrorists, spies, saboteurs, and others who were fighting out of uniform, attacking civilians, or otherwise violating the law of wars could be tried for those violations, and imprisoned (perhaps for life) or executed. But we have no obligation to do so: Given that we can hold lawful enemy combatants until the end of the war (which indeed may take a long time), we can at least do the same for unlawful enemy combatants, which are in no better moral or legal position than the lawful combatants are.

Now there may sometimes be pragmatic reasons to release prisoners even before the end of the war. Prisoner exchanges are a classic example. Likewise, prisoners who are very sick or disabled might be released as a humanitarian measure ....

But as a matter of law and of morality, it's perfectly proper to keep an enemy soldier detained (again, I set aside the separate questions related to conditions of detention, and related to confirming that the person is indeed an enemy soldier) until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

Ace of Spades, June 16th:

A lot of liberals ask the following questions:

1) Why are their no trials for these fuckers?

2) When will they be released?

Here are the answers, which have been patiently explained to you a THOUSAND TIMES, but maybe one more time will be helpful to your comprehension.

1) ... one does not typically "try" soldiers caught during wartime. Soldiers are imprisoned without trial during wartime -- see, that's what happens when you get captured but not killed by the enemy. You are imprisoned. Hence the term, "Prisoner of War."

Most soldiers are never tried as criminals, because most soldiers are NOT criminals. And yet they remain in military prisons throughout the duration of the war.

The thing is, we COULD try many of these plainly unlawful combatants as criminals -- if we chose to do so. Or, we can simply continuing holding them as enemies captured on the battlefield, as has been done since time immemorial.

The fact that we COULD try them as criminals does not OBLIGATE us to do so. And the fact that we largely pass on trying them as criminals does not obligate us to simply release them-- the same as we didn't just release Nazi soldiers during WWII who had committed no crime until the war was actually over.

2, which leads us to when we will release them. We will release them when the war is over, or until we decide to do so, if we want to release them sooner for some reason. Again, the rules of war say you can hold enemy prisioners until the cessation of hostilities. Hostilities have not ceased; ergo, we will hold them until they do.

Liberals will whine that this could be a very long period of imprisonment. So fucking what? Our POW's were tortured in Hanoi for eight or more years in some cases. It sucks, but not all wars are short affairs, and to some extent captured enemy combatants are at the mercy of their leadership, who can arrange for their release, the moment they surrender and sign an armistice.

Liberals seem to have a curious position here.

Were these lawful combatants -- good soldiers, legal soldiers, honorable soldiers who'd just been captured as part of war -- they could of course not object to holding them for the duration of the war, as that would just be ridiculous. They know damn well we didn't just release good, honorable Nazi and Japanese soldiers until the war was over. (And neither did those countries release our boys, except for hardship cases and in prisoner exchanges.)

So... the weird thing is:

They are insisting we treat unlawful combatants and actual terrorists BETTER than we'd treat lawful soldiers.

Lawful soldiers stay imprisoned until an armistice. Illegal combatants and mass-murderers get trials, and if you can't convict them of an actual crime, they go free.

Why shouldn't we extend that same benefit to lawful soldiers? We could NEVER convict them of a crime (having not committed one, or even having been alleged to have committed one) and thus they would go free two or three months after capture.

To join their former army, of course. And kill Americans.

Not saying it's a swipe. It's the same subject matter so the analysis is bound to be similar.

Still, despite the putative democratic, egalitarian nature of the blogosphere, it seems that the same basic sort of thing is link worthy when written by one but not by another.