CALM, DETAILED CRITICISM
of President Bush's proposed military tribunal scheme can be found inthis New York Review of Books
essay by Aryeh Neier. The piece does stumble at one crucial point, however. Discussing whether or not our detainees should be considered POWs or unlawful combattants, Neier concedes that to qualify for POW status the Geneva Convention requires that you have "a fixed distinctive sign recognizable at a distance."
This is typically considered to mean that you must wear uniforms, which al-Qaida soldiers did not do. Neier writes
In Afganistan, neither Taliban fighters now members of the Northen Alliance have worn uniforms. Therefore the requirement of a "fixed distinctive sign" can't be met literally; but since most of these comatants were not attempting to disguise themselves as civilians pretending to be other than what they were, the lack of uniforms should not prevent those captured in combat from being recognized as prisoners of war.
I think that the most you can say about this argument is that it shows that the government would be resting on a technicality if it chose to deny these people POW status. I would expect, however, than anyone seeking to defend these men before any tribunal whatsoever will probably want the ability to rely on technicalities in putting there case forward.
Indeed, the bulk of the case against military tribunals consists in the fact that such tribunals propose to dispense with "technicalities" like the rules of evidence that might get in the way of convictions.
I think giving POW status would probably be the right thing to do, but only as a gesture of American generosity and benevolence, it seems to me that we're within our rights to deny that status.
Of course we could always just send them all to the UK and see how their newspapers like it then....