In accordance with the new laws on U.S. military tribunals, the military has started hearings on whether various individuals detained at Guantanamo Bay are 'enemy combatants'. So what is an enemy combatant, anyway, and why do they need to be treated differently from normal prisoners?
Well, to start with, there are at least two very distinct kinds of prisoners.
On the one hand, there are criminals and suspected criminals. Criminals are people who do something considered to be morally wrong - evil, even. Typically accusations of someone's being a criminal are contested, and some kind of proof - in the U.S., a jury trial - is required to imprison a person as a criminal. Suspected criminals may be imprisoned while awaiting trial, but the trial is expected to happen fairly promptly, since they might be innocent. In addition, the government is expected to say what they suspect the suspected criminal of having done wrong, to prevent the government from imprisoning people indefinitely just because they don't like them.
On the other hand, there are prisoners of war. Prisoners of war are captured members of opposing armed forces. They may have killed people or even destroyed whole cities, but they aren't considered to have done anything morally wrong, as long as their actions fell within accepted laws of war. Typically, they don't contest their status, and they don't go on trial for anything - rather, they are held until the war ends, or until a prisoner exchange is negotiated.
However, accepted laws of war, such as the Geneva Conventions, typically only apply to signatories - and only in wars against other signatories. What happens when one of the sides hasn't signed up?
That's what the 'enemy combatant' category is meant to cover. We recognize we're going to be taking prisoners when fighting Al Qaeda, even though they haven't signed the Geneva Conventions. After all, it would feel kind of funny just shooting people dead if, for example, they surrender. On the other hand, we don't necessarily feel obligated to extend to them all the protections that the Geneva Conventions give to captured prisoners - especially since, as nonsignatories, they don't feel obligated to follow those rules themselves.
So what are the hearings about? They're really just to make sure the people we're holding actually are enemy combatants, and not random civilians who happened to get mistaken for them. Unlike a trial, the purpose of the hearings isn't to prove that someone has done something morally wrong - rather, it's just to make sure the people we're holding actually were fighting against us. Since we're not convicting them of anything, the hearings don't provide for some of the protections of a trial, such as formal legal counsel.
In this light, various news sources' characterization of the transcript of Khalid Sheikh Mohammed's hearing as a "confession" aren't really accurate. He admits to having planned the attacks on the World Trade Center, the execution of Daniel Pearl, and various other acts against the U.S., true - but he considers those acts to be legitimate acts of war, rather than anything morally wrong or evil. For our part, that should be enough justification to hold him as a prisoner until the 'end of hostilities', whenever that may be.
I figured I'd put the one of the comments I made while we were discussing this up here as well: it can be a little tricky doing a prisoner exchange when the other side beheads their prisoners (including aid workers and journalists) and posts the video on the internet. It doesn't really count as a prisoner exchange when they send their prisoners back in pieces.
OK, I've been trying to come up with a concise response to your post since I read it a couple of days ago. I've failed, so here is the non-concise version where I attempt to articulate my objections to the current situation in Guantanamo Bay.
It seems disingenuous to me to hold people until "hostilities end" when we know that there is never going to be an official end to hostilities with this organization.
I do think it's outrageous that it's taken us so long to get around to determining that we really are holding enemy combatants. It seems that determination should have been made in days or months, not in years. Certainly we have done a great wrong to anyone who has held for years who is later found to not be an enemy combatant at all.
I'm sympathetic to a desire to keep troublemakers off of the streets. But, I really think this is one of the areas where we have to be better than the bad guys, even to our own short term detriment. We may see some more attacks on our military as a result of letting troublemakers go. However, it seems that if we truly want to win hearts and minds in the long term, we must make this sacrifice to show that we do value freedom and personal liberty as we say we do.