Conservative pundits often observe that "this is a new type of war -- shouldn't the president have new powers to fight it?" Well, maybe. But I think there is a question that is at least as valid: "Given that enemy combatants don't wear uniforms any more, shouldn't we exercise more care than in the past in how we designate people as combatants?" The much greater ambiguity in naming combatants would seem to demand extra layers of process protection and appeal rights for such persons.
Unfortunately, this Administration, with the aid and comfort of the US Congress, has gone exactly in the opposite direction. As Jim Bovard writes, via Cato-at-Liberty:
The MCA awarded Bush the power to label anyone on earth an enemy
combatant and lock then up in perpetuity, nullifying the habeas corpus
provision of the Constitution and "turning back the clock 800 years,"
as Sen. Arlen Specter (R-PA) said. While only foreigners can be tried
before military tribunals, Americans accused of being enemy combatants
can be detained indefinitely without charges and without appeal. Even
though the Pentagon has effectively admitted that many of the people
detained at Guantanamo were wrongfully seized and held, the MCA
presumes that the president of the United States is both omniscient and
Sixty years ago, when the military hauled in a guy dressed in a gray Wermacht uniform captured in the Ardennes Forest, you kindof gave them the benefit of the doubt that he was an enemy combatant. How long until merely exercising free speech rights in favor of a terrorist group gets one labeled a "combatant."