Congress is likely to step into the operation of the Guantanamo Bay detention center with legislation on how the U.S. should legally categorize an unorthodox enemy.This comes from an article in the Washington Times . I want to say that such Congressional action would be unconstitutional. The Constitution lists specific expressed powers that are granted to Congress, and that list does not include making legal categories of this sort. The list does include the power to declare war. I'm thinking that when Congress declares war it is also defining an enemy, and further that in defining an enemy, Congress would be creating the legal catetory mentioned by the news article. Once war is declared, then I believe the Constitution gives great power to the President as Commander in Chief, and included in this Presidential power is the power to decide what happens on the battle field, including what happens to those captured on the battle field. Unfortunately, Congress seems reluctant to carry out its Constitutional power to declare war. Instead, Congress likes to pass War Powers legislation which purports to give the President the power to do things like invade Iraq. Perhaps those in Congress prefer hiding behind War Powers legislation because they can later criticise the President for a war if they see public opinion turning. Personally I would say War Powers legislation is unconstitutional. It seems to me that "declaring war" is a formal act of Congress that says the United States will now be at war with X. I think this is the Constitutional way of doing the things in question. Congress declares war on terrorist groups, in this case, especially terrorist groups who have declared their own war on the United States or who have taken credit for attacking U.S. citizens. The President or Commander in Chief then prosecutes the war and deals with the enemy on the battlefield and the Commander in Chief also deals with those captured as enemy on the battlefield.
Fitting the enemy in the war on terror into the proper niche is challenging. Al Qaeda terrorists do not wear a uniform. They target civilians and never signed the Geneva Convention governing the treatment of wartime detainees.
The country is already fighting this war, even if undeclared by Congress. There doesn't seem to be a large groundswell of sentiment accusing the President of conducting an unconstitutional war. Therefore, Congress must already think it has given the President the requisite power to prosecute our war on terror, and this requisite power seems to me to include the power to decide what happens to the captured enemy.
Any one else agree with me?