"Jesus, are you being deliberately obtuse? If some guy is out in a Confederate (or German or whatever) uniform shooting at our tropps we can pretty much assume he is an enemy combatant. But some guy who wears no uniform, does no fighting and of whom it is merely *alleged* that he channels some funds to Al Qaeda?"Now is it harder to identify non-uniformed soldiers? Of course it is. That's why we don't just rely on allegations - we investigate and use intelligence. This standard of putting uniformed soldiers in a separate class sets a dangerous precedent, I think. That's precisely what the Bush administration invoked to deny Geneva protections to captured terrorists. They weren't criminals on American soil... they weren't uniformed soldiers, so they decided they could arbitrarily make up the rules!
Gene isn't proposing this here, but I think the convenient invocation of "now they're soldiers, now they're not" - soldiers when Bush puts them into Guantanamo, not soldiers when Obama tries to fight them - is troubling. It seems to me that al Qaeda and Taliban members are clearly soldiers in a war with the United States. They are harder to identify requiring necessary precautions. If you disagree we really shouldn't be sending the military in, period. If you agree then we should not be questioning whether the military has the authority to use lethal force against them. But we can't make these determinations arbitrarily.
This is what Tom Pfanner, editor in chief of the International Review of the Red Cross, had to say about the subject of uniforms in the war on terror in 2004, immediately after criticizing the Bush administration for taking Gene's position that a uniform is the critical factor in separating combatants from non-combatants (emphasis is mine):
"This is not the place to establish whether the Taliban soldiers failed to wear uniforms or other distinctive signs recognizable at a distance and whether they did or did not distinguish themselves from the civilian population. Suffice it to say that in practical terms the distinction between the Taliban forces and civilian Afghans does not seem to have been a general problem for the players engaged in the military confrontation between the United States and Afghanistan, even though the problem did arise occasionally and certainly more and more frequently after the dissolution of the Taliban forces. On the other hand, the Taliban forces certainly were not standard armed forces and did not wear clothing that resembled traditional military uniforms. From a standpoint of humanitarian law, and for the sake of the civilian population, it is the overall requirement of distinction between military and civilian which is important, and not a rather formal element that can, however, greatly facilitate the distinction."Gene talks about "channeling some funds". Has anyone been targeted just for raising funds (targeted, not prosecuted - certainly fundraising for terrorists merits prosecution)? That does not seem possible to construe as a combatant to me and in that particular case I would be on his side. But of course that has nothing to do with the case of al Awlaki or anyone else I'm aware of (please let me know if there are cases in the comment section so I can specifically identify my opposition to those strikes). Certainly some of these guys were probably also fund-raisers, but fund-raising in addition to playing an operational role doesn't quite get you off the hook! If it did, the SS would have held bake sales as they made their way through Poland.
The ambiguity of these questions reinforces why habeas corpus rights and compliance with the Geneva conventions for prisoners of war are so important (how we deal with a domestic affiliate that the FBI picks up and conclusively links to al Qaeda is something I'll leave to the lawyers - I honestly don't know whether they ought to fall under Geneva or our criminal law). Of course it is tough when your enemy doesn't wear uniforms, and you want to have as many safety valves on that process as you can.
But to make the leap of saying that these sorts of irregular forces are not enemy forces is first and foremost unjustified, but it also opens the door to their arbitrary treatment, as we see with people who want to treat them like soldiers when Bush is president but like something else when Obama is. Irregular forces are, well, they're irregular. But they're still enemy forces.
If we aren't prepared to deal with that we shouldn't be at war. If we genuinely think these guys all should be tried criminally and have a judge rule on their fate rather than a general, we shouldn't be at war. We shouldn't be applying the fifth amendment arbitrarily to citizens but not non-citizens and we shouldn't migrate around with how we classify them.