Legal Status of Terrorists

The recent bombing in Boston was a horrific event.  I will not summarize which is already well known.  This is about the legal status of terrorists. 

There was a lot of discussion (see griping) about the fact the "underwear" bomber was read his Miranda rights after he was apprehended.  Here is a summary of the griping.

The argument that foreign terrorists should not be read their Miranda rights is rooted in the laws of war.  Under the laws of war, "spies" or "saboteurs" are not subject to treatment as prisoners of war and can be dispatched (see killed) relatively summarily.  The United States Supreme Court has held as such.  The factual background behind  Ex Parte Quirin is as interesting as the law. 

On first blush, I tend to agree that foreign terrorists operating in the United States are the effective equivalent of "spies" and therefore are not subject to varous constitutional rights like a regular criminal suspect.  This of course leads to the question -  Who decides whether someone is a spy or a terrorist?

The answer can be found to some degree in Hamdan v. Rumsfeld.  In what I think is an excellent opinion, Justice Stevens explains that both under the Uniform Code of Military Justice, the Geneva Convention, and the common Laws of War, this must determined by a "regularily constituted court".  However, there is a distinction in that in Hamdan the alleged offense was that Hamdan was an "unlawful combatant".  Briefly, summarizing Hamdan was captured abroad in Afghanistan during the initial combat between United States forces and the Taliban.

Another distinction is an "unlawful combatant" is largely a creation of the fertile imagination of the Bush adminstration.  In a nutshell it pre-supposes that some person in foreign country under attack by the United States has in fact no right to in fact be in combat.  As this person is not covered under the Geneva Convetion, he can be subject to a wide range of punishments.  This creates a dangerous precedent in my mind.  The United States conducts military operations in some country.  We take some prisoners and make some unilateral decision that said prisoners are "unlawful combatants" and therefore the Geneva Convention does not apply. 

The only way the "no miranda" argument works is if the alleged terrorist is analogous to a saboteur.  The term unlawful combatant is meangingless in this context.  I think my worry is that the government would start apprehending all sorts of people under the auspices of being "terrorists".  Considering the Obama administration has decided it is ok to kill American citizens with drones, I can't say I trust anyone in the executive branch to make this kind of decision.  Afterall, if terrorists are saboteurs, and a person can be designated a terrorist by the executive, it pretty much gives the executive branch free reign.  And if this can happen to alleged foreign terrorists, it could happen to American citizens next.

I am still not sure how I feel about it.  I think it gives the executive too much power.  But I also believe the laws of war clearly allow detention of foreign military agents conducting "terror".  No easy answer on this.