I get that people that try to blow up planes and kill many people are more evil than your run of the mill criminal up for murder 1. And I could even be persuaded to believe that such a person, if found guilty, should be punished according to rules of war instead of criminal law. But I have a question… How do we know that they are guilty of being an enemy combatant before trying them?
I’ll grant you that some dude trying to light his explosive-laden underwear on fire on an airplane on approach to DTW does seem to point to an act of war. But people who look guilty are found innocent every day. Now you could argue that some of those that are found innocent did do the deed but got off unfairly; but as we all know, that’s the price we pay for making sure that we don’t put away innocent people. And, to be sure, there are people who look guilty who didn’t do it.
Maybe the underwear bomber was an unwitting carrier to the explosives and the people who secretly put the explosives in his underwear at the laundromat knew that he has a thing for lighting his nuts on fire while the flight attendant says the tray tables need to be upright. Yeah, pretty unlikely. But isn’t there a time when somebody might look like they are an enemy combatant and be erroneously treated as such? And since we are a society of “innocent until proven guilty”, it seems wrong to say “yeah, but the thing that this guy is accused of is super evil so we’re going skip over due process and jump right into the war accusations”. Shouldn’t everyone get the same trial to determine guilt and then sentencing for an enemy combatant could be done differently from that of a common criminal?
I’m no legal expert so maybe I’m missing something. I do not mean the following rhetorically – I really want to know: Is there a reason why people who appear as enemy combatants can be legally treated differently from the start?