Eben's key argument is an analogy to the SS in WWII: should we have given each and everyone of them hearings? The example is apples and oranges, however. For the ones we tried for crimes, we DID give them lawyers and a trial (Nuremberg anyone?). But even that is too simple a way of looking at it, because as he noted, we caught them in a theater of war, bearing arms and wearing the uniform of a belligerent. There was no dispute that they were POWs on either side. For the gitmo detainees, that analogy is not parallel. We didn't capture all of them in a theater of war (some of the petitioners in the above case were caught as far away as in sub-saharan Africa and Southeast Europe), they weren't wearing uniforms, they might not have been armed, and there certainly isn't agreement that they were even belligerents at all.
This distinction is codified in international law. As I noted earlier, the relevant portion of the Geneva Conventions states:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [Article 5, Paragraph 2, 3rd Geneva Convention, emphasis added]
With the SS officer, there is "no doubt," with the Gitmo detainees there is. That is critical.
Meanwhile, the assertion that we should treat enemy belligerents the same as how we want our own soldiers to be treated is rather odd from those seeking to justify Guantanamo, considering that we'd demand our soldiers receive the POW protection we're denying to the Gitmo detainees. Furthermore, if an enemy plucked an American citizen off the streets and accused him of being a spy (or combatant, or plotting an attack, or whatever), we'd at the very least demand they present some evidence to prove the assertion. This is the parallel of what we're doing to many of the Gitmo detainees, since they were picked up without any corroborating evidence to prove they were in any way a combatant. There is a threshold issue to pass here: before we can treat their combatants the way we want our combatants to be treated, we first must show they are actually combatants.
US law is clear on this as well. Eben argues that Reid only applies to US citizens, and he is right. However, I think it is self-evident that Reid + Plyer v. Doe = Al-Odah v. US. If a) the rights of US citizens are still applicable in any place under US jurisdiction and b) non-citizens at least share the same fundamental rights as citizens then c) non-citizens under US jurisdiction still possess fundamental rights. And what could be more fundamental than the freedom of person, freedom from arbitrary detention? If there is one right that might more important than all others, it is that the government can not throw you into prison without any explanation or hope for redress. That right dates back to the Magna Carta and is deeply embedded in American law.
I suppose one might argue that since al-Qaeda won't abide by any of the above rules, we are under no obligation to abide by them either. That's a very dangerous position to hold. The US, being a liberal democrat state, agrees to abide by certain standards. It has moral legitimacy because it will not utilize any tactic to achieve its ends. Just because al-Qaeda flies planes into our buildings does not mean we can do the same to them. Just because they deliberately target civilians in an attempt to shatter our morale does not mean we can do likewise. Morality often means fighting with one hand tied behind your back, but that disability also is why our fight is worth fighting in the first place. Terrorists need to be punished--and harshly. But as Stanford Law Professor Jenny Martinez argues, "Holding military commission trials that do not afford basic due process is...like saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself." I have no problem fighting terrorism. But let's make sure it's the terrorists we're actually fighting first. As the Court said in United States v. Robel: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of those liberties...which make the defense of the nation worthwhile." [389 U.S. 258, 264 (1967)]
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