The Bill of Rights and "Enemy Combatants"

David Cole, a constitutional scholar at Georgetown Univ., writes today in the Times about the case going before the Supreme Court. Specifically, do the "enemy combatants" locked up on Guantanamo Bay have the right to due process as do U.S. citizens and, according to the Geneva Convention, prisoners of war?

Yes, writes Cole.

"These suggestions that noncitizens have less right to be free than citizens are ill advised. Some provisions of the Constitution do explicitly limit their protections to United States citizens -- the right to vote and the right to run for Congress or president, for example. The Bill of Rights, however, does not distinguish between citizens and noncitizens. It extends its protections in universal language, to 'persons,' 'people' or 'the accused.' The framers considered these rights to be God-given natural rights, and God didn't give them only to persons holding American passports."

Cole has two points. First, that someone locked up under American authority has the right to due process, although the process may differ depending on the circumstances of the detention. Second and most chilling, that curtailing the rights of non-citizens have a long history of being extended to citizens. In fact, we're already seeing that in the Padilla case.

I think there's another important point to be made, and it's the reason that a number of retired military figures have been some of the biggest critics of the endless detention on Guantanamo. We are undermining the credibility, not only of the U.S., but of the Geneva Convention itself. That didn't bother Rumsfeld, Cheney, Olsen, et al, back in 2001/2. But today, with military convoys under attack in Iraq, where U.S. personnel -- both in uniform and out -- are being held captive, our nation's cavalier disregard for accepted conventions when it comes to prisoners of war may very well come back to haunt us.