by Mark Luedtke

Created on: July 04, 2008

On Oct. 2nd, 1780 George Washington executed Benedict Arnold's contact, British Major John Andre. Andre had asked Washington to shoot him, as befitted a captured officer, but because Andre had been captured in civilian clothes, Washington treated him exactly the same as all other captured spies he was ignobly hanged. Dealing with captured spies and soldiers was solely the responsibility of the commander-in-chief, and the Founding Fathers subsequently codified that tradition into the Constitution.

That tradition evolved because it was crucial for victory. The Founding Fathers understood that in order for Americans to enjoy liberty, we have to win wars against those who would take it from us, and that allowing Congress or the Court to interfere with fighting a war would lead to defeat and the end of the US in short order. That's why the Constitution is crystal clear about how America fights wars all power to wage war is concentrated in the commander-in-chief. That includes dealing with prisoners of war.

The Constitution grants Congress several external powers associated with war. Only Congress can declare war, and by extension end wars. Congress appropriates funds to raise and equip the military and to wage war. Congress can remove the commander-in-chief through impeachment. Congress has no other powers associated with war. The Court has no powers whatsoever associated with war. That unambiguous separation of powers had been respected since the Constitution took effect in 1789.

Until today's Supreme Court.

Like every good commander-in-chief, Washington understood the critical difference between spies and soldiers and refused to give a spy any privilege, even a firing squad, reserved for a soldier. Privilege is the operative word because enemy combatants forfeit their rights when they take up arms against us. The goal is to remove them from battle by killing, wounding or imprisoning them indefinitely so we can win the war, not to give them lawyers and prosecute them as criminals. Today, the Geneva Conventions provide the framework for dealing with legal combatants, privileges that each signatory agrees to provide to lawful combatants of other signatories captured during a war, including humane treatment but not access to courts.

But because of the extreme threat, think 9/11, from enemy combatants posing as civilians instead of wearing a uniform, unlawful combatants - spies and terrorists - don't receive those privileges. Traditionally, they are summarily executed.

On

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