Unspoken horror

At Instapundit I ran across The Daily Show's John Stewart interviewing John Yoo.  It was fascinating to see a Constitutional specialist being interviewed by a comedian that has as his stock and trade glib and often childish attacks on others find someone who is personable, intelligent, agile on his feet, personable and intelligent that does not succumb to that lowering of the bar that happens far too often in comedy.  Then again seeing a deer get hit by an 18-wheeler is also fascinating and I don't think Mr. Stewart expected to find himself in the role of the deer.  It is rare to see any guest to these programs who can deftly turn around attacks sent his way and have the audience enjoy it.  Unfortunately John Stewart seemed obsessed by the question of torture and could not get his mind around the concept of war.  As a culture we became used to peacetime power structures and could not envision what the wartime ones were and how they operated, which has many people at sea on just what can and cannot be done with those fighting us in the present day.

Not having read Mr. Yoo's book, Crisis in Command, which examines the sweep of the Presidential powers as Commander of the Armies and the Navies from Washington to the present I cannot comment upon it.  I can give some commentary and, hopefully, a bit of insight into the types of decisions Presidents have had to make in this venue, but that cannot be done without first examining what the actual 'war power' is and how it functions within a Nation State.  There are a number of texts that I have referenced over the years concerning this state of affairs, and many, many posts on them across the two sites I run.  This is not the easiest of concepts to grapple with and took me the better part of a year to research multiple articles to begin to narrow down just what type of war we are in and what the actual powers and functions are available to a Nation State to fight this type of war actually are.

In wading through our historical background one of the prime indicators in recent history does not deal, directly, with warfare and, at first, it did not look promising.  I titled that post When Terrorists are Pirates and found in the US Code two sections that dealt with, apparently, the same phenomena but were treated in two entirely different ways: Piracy and Terrorism.  My confusion pointed to their linkage as being quite deep and many on the Left had described Terrorism as a mere tactic and you can't outlaw tactics. Yet the descriptions for what Piracy is and what Terrorism is form a complete whole.  Congress felt it important enough to register that modern air travel was afforded the same legal basis of the Law of the Sea that it specifically extended the known Law of the Sea coverage to the center of the Earth and to the edge of the atmosphere: the space above and below the common seas was covered by the Laws of the Sea and travel through those areas was afforded the exact, same coverage of the Law of the Sea.  Air travel was put on par with maritime travel and that has profound implications for why trying to treat Terrorism as a tactic doesn't work.  That reason is that the Law of the Sea covers terrorist attacks in the air and requires the coverage of the US Piracy codes to be applied to acts that happen on airliners.

Thus our modern attempts to differentiate the tactics between those of war and those of civil attacks are fruitless given the nature of such vessels.  Our fragile works at sea and air can be destroyed in an instance by a malicious act and we cannot ask for 'intent' to guide our path, only the results of any intent that attack our vessels.  I tired to cover that in a post (A deeper look at Terrorism and Piracy) and became more frustrated than anything else as the civil code was trying to craft itself to terrorism as hijackings, but did NOT apply the direct equivalency that Congress had mandated for seagoing vessels.  Air travel was made less safe by applying a different law standard to it than to maritime vessels, where the seizure of a vessel for any reason is Piracy.  The United States had stopped following precedent and Congressional extension of such precedent to account for a delimited subset of incidents that, by right, deserved far harsher and severe penalties in the civil venue than they were being afforded under the Terrorism statutes.  I got some very useful feedback on a post asking Why do we refuse to call terrorism what it is? and it is that feedback, that would place the Admiralty powers on the civil side as a jurisdiction for prosecution within the Federal Court system, but this then begged the question: what is the Admiralty Power?

That power's source is with the Commander of the Navy, although the prosecution on the civil side is wholly civilian, the power itself derives from the Naval Commander power in the US Constitution.  That is by tradition as it comes from the British Sea Lords which were given that power, and they had to cover the war time application of it (getting fleets to go after enemies and saying who those enemies were) and the commercial side which covers contracts, privateering, seizure of goods and what to do when you get your hands on a Pirate.  In the US system that power is melded into the Executive branch (Commander of the Armies and the Navies) with the Legislative given the civil aspects (in the Federal Court system) to deal with.  This is very similar to the power to raise and set the rules for how the Army works being Legislative and actually commanding the Army being Executive.  With that said coverage for privateers in captures, at least from my reading of US history, has been handled by the Navy following British custom at the time of the Founding.  At that point the two questions seemed to be settling out, in my mind, when I ran across one President who clearly made a distinction and set precedent on why Terrorism is to be treated as Piracy.

It is in a document that is little examined, save for the last year or so, and was put up by the Avalon Project as part of their law history works to help examine the roots of law and legal custom.  Just so that it can be determined, President Bush(43) is not the first President who had to deal with this question of Terrorism and is only the latest in a long string of Presidents who have had to do so.  The most important one, the one who should have had his works thoroughly examined has, instead, had the glory of his life outshine one of the most pertinent pieces of military law history fall into the shadows (and I cover it in Whatever did happen to clarity? ).  One single President far before our time utilized the War Power given to the Commander of the Armies and the Navies to give us a clear, definitive and succinct description of that thing we call 'terrorism' and then define it:

Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

This comes from:

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.

The description given in Article 82 under the General Orders No. 100 by President Lincoln are clear, definitive and without any question to them on just how you treat such individuals in wartime and were the standing orders for the military forces of the US up to approximately 1895 with reprints still made up to 1900.  President Lincoln did not have this made up to suit some passing need or time, but stood on the legal foundations that trace their way all the way back to the beginning of human history.  The concept that is most important, indeed pivotal, to understanding terrorism is that those practicing it are practicing a form of warfare on their own and, thusly, are not Public Enemies.

It is that single, pivotal, and necessary understanding that is the most confounding to the modern reader as we have had the idea of Public Enemies (ex. 'John Dillinger - Public Enemy Number 1') used as a dramatic device and a single defining way of addressing civil crimes.  What this does, however, is beg the question: if there are Public Enemies then are there Private Enemies?

The answer is: yes.

I can't say if Mr. Yoo goes into any depth on this question, but it is one that multiple Presidents had to deal with, is put into the US Constitution by name and is handled as part of the War Powers within the Constitution, itself.  Our Constitution is one form of government, perfectly reasonable amongst all possible forms of government, and describes which powers are handed to the government in caring for the Nation State and how those powers are divided.  These are powers that any Nation State gets and they may be divided in nearly infinite fashion depending on how a Nation State is constructed.  As a species humanity creates Nation State entities wherever we have enough people to form States, that is organizations of men into society that requires governance, which is a State, and that governing system interacting with other States forms the Nation State system as a means for States to utilize systems to regularize their discourse and intercourse.  This is an invariant phenomena of mankind, and is universal: when there are enough people to require some form of government (be it unspoken or scripted) then you get States.  When these States interact you get Nation State venues to deal with the problems between such States as Nations.  How can you tell if to States are Nation States?  Very simply, it turns out, and there is one acid test that works across all mankind: do they recognize the exchange of ambassadors or embassies from other States?  That is presupposing that a State has territory, system of law, government, etc.

In the act of forming up a State we form a Public and a Public Good that is the State.  When we enter into discourse and intercourse with other States we need protection and regularization of those activities to protect the Public Good and those functions are vested into the Nation which holds those Public Law powers necessary to do such protection and regularization.  As that Nation represents a people as represented by the State, we speak of it as a Nation State or fused entity, that is Sovereign and our sole representative organization between Nation States.  Nation States utilize that regularized Sovereignty with their peers, who are all of equal stature (no matter their power which is another question) and thus create a greater Public Good by limiting the ways in which interactions between Nations are done.  When enmity is given in the form of Publicly Declared War, then a Nation State is a Public Enemy.  Those who break our civil laws, yet try to utilize the methods of the civil law to make good of their infractions are performing a criminal activity, and are a danger to the Public when they seek to evade capture for civil crimes, thus Public Enemy, but that term is not a proper one when speaking at the Nation to Nation level of things and is a misapplication of verbal practice that muddies up the water between Public Enemies of the Nation and enemies of the Public Welfare who are breaking civil laws.  These two cannot be conflated as one is wholly outside the Nation State and the other wholly inside it, save when outside groups and actors utilize citizens to do their work.

Thusly if Public Enemies at the Nation State level are those Nations that declare war upon us, then are there Private Enemies that also do this?

Yes and those activities engaged in by Private Individuals who declare war upon the Nation are Private Enemies, not Public Enemies.  This was known to our Founders from multiple sources and has a long lineage of understanding.  The best way to describe the differences between Public and Private Enemies was done before the Founding in a work by Emmerich de Vattel in Law of Nations, and Book III gives a definition of war in its opening paragraphs:

§ 1. Definition of war.(136)
WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.

§ 2. Public war.(136)
Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.

Presidents Washington, Jefferson, Jackson and Lincoln all utilized this understanding in warfare.  Washington had those not fighting Public War executed, Jefferson sent a retributive expedition against the Barbary Pirates, Jackson sent the first US vessel to circumnavigate the globe which was a frigate to deal with Malay Pirates and activities against US trade there, and Lincoln, as seen above, defined what to do with those fighting Private War in his General Orders No. 100.  All of the Presidents, at least up to Theodore Roosevelt and his COIN work against the Moros in the aftermath of the Philippine-American War understood the Law of Nations as a concept if not a body of work that had been gathered for centuries.  That body of work is so important that it is mentioned inside the US Constitution, here in Section 8 on the Legislative powers:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The Law of Nations is a body of work, of which de Vattel's was the latest known at the Founding, and it clearly demarcates the differences between what is Public War (thus Public Enemies due the protection of Nation State actors) and Private War (those not due Public Enemy status and no protections under any system devised between Nation States).  There are many on the political Left who try to conflate Unjust War with Private War, and yet they are two entirely different things.  In my post on The Worst Wars of All I examine that question of the differences of Unjust Nation State Public War and Private War and their differences are due upon the nature of the actors involved (Nation State vs Private Individuals) which cause a resultant difference in the type of war you get.  Unjust Public War is still Public War, although unjustly caused, while Private War is not between Nations but Individuals recovering their full liberty of negative war and attacking the Nation State system as a whole by warring on any individual Nation.  For all the grief and horror of Unjust Public War, it has all the system of accountability between Nation States that accrue to it, while Private War has none.  Vattel's Law of Nations examines just the question of why this is done:

§ 4. It belongs only to the sovereign power.(137)
As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.

Notice that the right to keep and bear arms is given in this paragraph, as well, as it is the means of self-defense and self-preservation of your very self against those waging war when society cannot defend you.  Police cannot be everywhere, else we give up our liberty of travel and right of free movement to a regimented and authoritarian State that removes our liberties from us.  That is not protection, but slavery.  With that said it is the defensive right which is to the good, the offensive right, if done by individuals who get Nations embroiled in war would see the end of Nations the State and all of society to their ends.  That negative liberty of offensive war we vest in the Sovereign Nation State for our own protection and is a high civil value amongst us as it is the basis for all civil society.

The reason this intersects with Piracy is that Piracy is Private War, again de Vattel Book III:

§ 67. It is to be distinguished from informal and unlawful war.
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.

§ 68. Grounds of this distinction.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.

Pirates are no different than their land-based counterparts and, indeed, many Pirates waged land based conflicts and warfare upon unsuspecting populations.  The Barbary Pirates were notorious for this (also known as the Algiernines) but such individuals as Black Bart more than attacked populations, but attacked regular ground installations and killed a governor of an Island who had offended him with is forces.  This conception of Piracy, of Private War, goes back deep into our recorded history as I examined in the post Where Angels fear to tread, and the scourge of this type of war has been known since the formulations of the first States or City States which acted in accordance with the same means of intercourse and discourse as Nation States.  We can examine those records and see the very types of actions taken by modern day terrorists not only in outline form but in consequences:

"'My father, behold, the enemy's ships came (here); my cities(?) were burned, and they did evil things in my country. Does not my father know that all my troops and chariots(?) are in the Hittite country, and all my ships are in the land of Lukka? . . . Thus, the country is abandoned to itself. May my father know it: the seven ships of the enemy that came here inflicted much damage upon us.'" - Letter of Ammurapi to Suppululiuma II of the Hittites telling of the Sea People.

The countries -- --, the [Northerners] in their isles were disturbed, taken away in the [fray] -- at one time. Not one stood before their hands, from Kheta, Kode, Carchemish, Arvad, Alashia, they were wasted. {The}y {[set up]} a camp in one place in Amor. They desolated his people and his land like that which is not. They came with fire prepared before them, forward to Egypt. Their main support was Peleset, Tjekker, Shekelesh, Denyen, and Weshesh. (These) lands were united, and they laid their hands upon the land as far as the Circle of the Earth. Their hearts were confident, full of their plans. (Medinet Habu, Year 8 inscription.) - Inscription by Ramases III at Medinet Habu.

Thus the watchers are guarding the coasts : command of Maleus at Owitono... 50 men of Owitono to go to Oikhalia, command of Nedwatas.... 20 men of Kyparssia at Aruwote, 10 Kyparissia men at Aithalewes.... command of Tros at Ro'owa: Kadasijo a shareholder, performing feudal service.... 110 men from Oikhalia to Aratuwa. - Clay tablet found at Pylos.

Cities attacked and burned, lands made desolate by war, and seeing forces coming and being unready for them.  The day of 9/11 at Ground Zero has these as an apt description of them for the cities burned in these ancient eras had barely more inhabitants than the Twin Towers had that fateful morn.  Our Private Enemy had declared war upon us years earlier and we were unready, and no matter how great our Public War machine we could not prepare for Private War.  A Private War enemy makes only their intent clear by their actions and when they are accountable to no Nation State they do so on their own against the very Law of Nations that underlies all human society.  This is the concept transmitted to the founders in Blackstone's Commentaries on the English Common Law for Piracy, and as we derive many of our conceptions of the Admiralty Power and War Power from the English Common Law it is worth noting:

LASTLY, the crime of piracy, or robbery and depredation upon the high seas, is an offense against the universal law of society; a pirate being, according to Sir Edward Coke,10 hostis humani generis [enemy to mankind]. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community has a right, by the rule of self-defense, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, any invasion of his person or personal property.

BY the ancient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, since the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject.11 Formerly it was only cognizable by the admiralty courts, which proceed by the rule of the civil law.12 But, it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the statute 28 Hen. VIII. c. 15. established a new jurisdiction for this purpose; which proceeds according to the course of the common law, and of which we shall say more hereafter.

That conception of hostis humani generis, or enemy to mankind is succinct and the description of man doing so as savage and reverting to the Law of Nature are ones that we, in our lofty perch of the 21st century, don't like to think about.  Our Admiralty Power does not go through the time of Henry VIII but from William and the founding of Great Britain as a State and Nation State, although it would take centuries to formally organize as such.  For all Admiralty cases the Supreme Court has made this clear in US vs Wiltberger 1820:

Indeed it has already been, in effect, decided by this Court, that the statutes of Richard are not in force in the United States, as limitations of the admiralty and maritime jurisdiction granted in the constitution. By the judiciary act of 1789, c. 20. s. 9. seizures under laws of impost, navigation, and trade, on waters navigable from the sea by vessels of ten or more tons burthen, as well as seizures on the high seas, are expressly included in the admiralty and maritime jurisdiction of the District Courts. It is evident that Congress could not give the District Courts, acting as Courts of Admiralty, cognizance of any causes which were not 'of admiralty and maritime jurisdiction,' within the true meaning of the constitution; because, it would deprive the parties of their constitutional right of trial by jury. The objection was, therefore, very early taken, that seizures in ports, and in such navigable waters, as above stated, were not causes of admiralty and maritime jurisdiction, because those places were not, according to the common law interpretation in England of the statutes of Richard II. within the jurisdiction of the admiralty. But this Court has repeatedly overruled the objection, (La Vengeance, 3 Dall. 297. The Sally, 2 Cranch, 406. The Betsey and Charlotte, 4 Cranch, 443. The Samuel, Ante, vol. I. p. 9. The Octavia, lb. p. 20.) and thereby established the doctrine that the constitutional admiralty jurisdiction includes ports, arms, and creeks of the sea, as far as the tide ebbs and flows.

The learned reader will observe, that this position is not disturbed by the decision of this Court in the case in the text, (The U. S. v. Wiltberger,) or by that of the United States v. Bevans; (Ante, vol. III. p. 336. Bevans; (Ante, vol. III. p. 336. 387.) the only question in those cases being, not what was the constitutional authority of Congress, but how far it had been exercised; not what was the extent of the admiralty and maritime jurisdiction granted in the constitution, but how far it had been conferred by Congress upon any particular Court of the Union.

And that is the Law of the Sea's reach for US flagged vessels, and it includes all those places within the reaches of the High Seas.  If you do not think of this as normal, then you may begin to ask the question of why?  I looked at that question in If they don't teach it, how can you forget it? and the source of the Laws of the Sea, for modern use, comes from the Roman Laws on maritime trade as kept in diverse form by the European Nations that arose after the fall of the Roman Empire.  In the 15th century this diverse set of sea laws was brought together in one of the first compendiums of international law called Black Book of the Admiralty (1405), and it dealt with the exact laws in use across Europe for ports, trade and expectations as well as how those who break the law are handled.  It is the first regularizations of international law ever made and serves as a foundation for the Law of the Sea.  The ability to have civil law aboard US flagged vessels was paramount and continues to be paramount in protecting our citizens abroad.  Every flagged vessel of the United States in the reaches of the High Seas is territory of the United States, and by the acts of Congress that includes every aircraft within similar reaches of their equivalent which is the open skies above the High Seas.  Our civil code for regular civil infractions exists on every US flagged vessel that meets those requirements with the Captain of that vessel being the highest local authority of the Nation.  Thus we recognize the differences between an act of murder, that is homicide in a civil venue, onboard a ship and an attempt to hijack, capture or destroy the vessel as an attack upon the Nation.

We can stop at this point, although there is much, much more material to go through from the time of Grotius, the Colonial Period and further onwards as it is sufficient to answer many questions about what terrorists are and how they are to be handled.

First and foremost: are terrorists committing acts of Public or Private War?  The answer must be, by all evidence of the lack of Nation State backing for terrorist groups, that they are waging Private War upon us.  All treaties, even the Universal Declaration of Human Rights cannot be appealed to as these activities of terrorism break with all Nation State agreements and even the UDHR has a nullifying paragraph that requires that you act in a civil fashion to get civil rights.

Second: how are terrorists to be treated?  Their treatment goes in accordance with their determination of being lawful combatants of Nation States or unlawful combatants who make no affiliation with any Nation State clear or otherwise hide such affiliation.  Under the Geneva Conventions that is the class known as Spies & Saboteurs and they are due summary execution.  Just like in Lincoln's time.

Third: are those individuals caught performing Private War due a civil trial?  Here is a problem that our modern Presidents, Congress, Courts and educational establishment do not properly 'get'.  To be a Public Enemy and get civil prosecution, one must submit to civil procedures and give oneself up to civil authorities.  If you are captured by civil authorities after performing an act of war, you are only due civil process if you willingly give yourself up to them.  The act of capture is not enough, which is why I disagree with the Richard Reid prosecution in a civil venue.  If Richard Reid had thrown himself upon the mercy of the authorities, willingly admitted to his act of war, then I would be more than happy to see him charged with Piracy (waging an act of war upon an aircraft that is covered under the Law of the Seas) if it was a US flagged aircraft.  If it was from another Nation he should be sent back to them as it is their aircraft, their laws and their responsibility for trial.  We can then have an extradition request to go along with him if he is acquitted in that foreign court as there is no double jeopardy when performing acts of war under the Law of the Sea as such acts are a crime against all Nations and can be tried in any or all of them, serially or simultaneously.  That goes for all terrorists committing acts like that, save if it is an aircraft on the ground or ship out of reaches of the High Seas, then it is the responsibility of the host nation to prosecute such crimes.  And it is up to that Nation to determine if it is a simple civil law that is broken or a military law based upon the action, itself. However, even for ships that are not in reaches of the High Seas or aircraft on the ground (although a fueled and ready craft has its own arguments for being in reach of the open skies above the High Seas) as these are representatives of their flag Nations they should get treatment as emissaries and possibly some input on if the flag Nation has an interest in such prosecution.

Fourth: is it allowable to torture people?  I would put it that the morale and safety of our troops is paramount and that torture is contrary to that.  SERE training, however, involves such things as waterboarding and many of the hazards that have been applied to those captured at Private War with us.  If it is not considered 'torture' for the training of our own forces, then I do not see how it can be 'torture' for those captured waging Private War upon us.  After that they should then have their sentences executed for being illegal enemy combatants waging war as described under the Genevea Conventions, which is summary in nature.  That is legal under the Laws of War, by international law and is clearly understood as part of the tradition of warfare going back far past our Nation and into the dawn of civilization.

Of course we wouldn't need much of a facility in Guantanamo to do that.

Waging Private War and getting caught doing so has been a one-way exit from life since the dawn of civilization also as it is the way to be civilized and protect civilization from those reverting to the Law of Nature.  That is a sad condition for humans, to willingly turn away from civilization and wage war on their own against all mankind.  It is very sad that they choose to do this and not submit to civil law for their punishment.  I do wish they would return to the bosom of society and ask for judgment on their actions.  The Piracy code allows for a life-long jail term, no parole.  The Laws of War are not as nice as that, but that is the Nature of War and it cannot be changed, no matter how much we wish it otherwise, it is far better to adhere to those things that protect us all than to reward those who wage war upon us with no authority to do so to get any leniency whatsoever as that degrades our respect for the differences between the laws of war and the civil law.  Soon after that you do not have either as the Law of Nature returns unabated, unstopped and red of tooth and claw.  Any civilization that tries to do that is decadent, in a high state of decay and without an understanding of what it means to be civilized.... it isn't about doing the 'nice' thing but the right and proper thing.  That can be nasty, but no one said civilization was 'nice', either.

Necessary, yes.  Nice, no.