It's clear that we have what can be regarded as precedent, not only recently, with the unlawful combatants housed at Gitmo, but farther back in time, as detailed in this rather lengthy discussion of Martial Law and the Constitution.
The story is fairly well known, and presented in this video clip (45 seconds in):
Silent footage:
The legal niceties as outlined in the first linked piece:
In 1942 eight youths, seven Germans and one an American, all of whom had received training in sabotage in Berlin, were brought to this country aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.” The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre. The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises, thereby, in effect, attributing to the President the right to amend the Articles of War in a case of the kind before the Court ad libitum.
The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President’s purely martial powers as Commander-in-Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war, they would have been subject under the statutes to restraint and other disciplinary action by the President without appeals to the courts.
It seems that this is a promising avenue to investigate. There are obvious disanalogies, however. The saboteurs were agents of Germany, intending to inflict damages to infrastructure, which in turn would have impact on our capacity to fight Germany. Assange, on the other hand, while a non-state actor, and not intending to cause damage to our ability to fight any particular state or organization (such as AQ) does freely admit to wanting to damage America's ability to conduct military operations. This he intends to do by revealing classified information of any type he deems potentially damaging, including military and diplomatic information which he pilfered with the help of Manning, a U.S. citizen. He also freely admits his activities to date are just the tip of the iceberg of what he would like to do, and does have the capability of doing. Add to that, that he obviously does not advertise himself as a combatant in any of the normal ways, we have good reason then to treat him as an unlawful combatant or some close analog, just as was done in the case of the Nazi Saboteurs. There is a sort of spectrum of cases, on the left hand side, including unlawful combatants in the service of nation states, in the middle area including unlawful combatants and saboteurs from non state organizations, and further to the right, saboteurs or unlawful combatants working individually. Assange is located somewhere to the right of middle, KSM in the middle, the Nazi saboteurs over on the left hand side. The language of the covering laws seems to allow room for applying the legal framework used with KSM and like agents to Assange, because his is part of a non-state organization which is engaged in something very like war with the U.S.
Yes, in light of some more recent SC decisions, we may have to grant him habeas hearings, but that is not an impediment to arresting him as an unlawful combatant, and processing him through military tribunals. Lord knows he won't have any trouble getting representation. Ramsey Clark and company will be tripping all over themselves to take the case.
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