Tried as Enemy Combatants

The purpose of the special category Enemy Combatant is not, as the media wants to suppose, because these folks are the worst of the worst and that due process is too good for these people.  Due process has successfully punished quite a few criminals and it's very rare for criminals and other evildoers to escape justice, including terrible bombers like Timothy McVeigh, and 20th highjacker Zacarias Moussaoui regardless of where they are from or what the politics are, around their crime or arrest.  Due process is about making sure there's a real crime, that this is the person who committed the crime, and whether there are any mitigating circumstances when determining punishment.

Many of the people who are held in Guantanamo are there because they were arrested on or near a battlefield but have not necessarily committed any real crime.  That is to say, they were improperly arrested.  Several of them have been tortured.  Were these men to be tried in a proper court using due process, the defense would raise these points, and the judge would rightly let them go.  It may be that some of them are actually bad people, and it's even more likely that the abuse they have suffered has turned some of them into terrorists, which they hadn't previously been, willing to do anything to get back at their abuser.   This is why we should always follow due process and never torture.  Guantanamo is a national stain.  The people who did it should be turned over to the war crimes tribunal in The Hague.  No US jurisdiction can be regarded as neutral for these war criminals. This includes George W Bush and several of his advisers, including John Yoo.  It probably should only include a few of the actual torturers, because they can rightly claim that they were just following orders.

The Geneva convention established fairly clear categories:  An enemy combatant is one who is clearly identified as an enemy by uniform or context or something, and is arrested as an enemy.  They are subject to the rules about prisoners of war.  Everyone else who has been arrested must be subject to whatever appropriate due process is in the country that's arresting them--including if they're a spy.  That's it.  John Yoo and Jay Bybee tried to invent an alternate category where terrorists "fall through the cracks" and can be abused, and quite a bit of the legal community called for their disbarment and prosecution as consequence.  But congress (then entirely controlled by republicans) stepped in and blocked it.

There are some circumstances where open application of due process may undermine the hunt for other criminals, and even a few where there's reason to believe the delays incurred by due process may allow another crime to take place.  There are procedures for this too.   But mostly, when there's a push to get someone tried by a special court, such as a military tribunal, it's because there's something the accuser doesn't want widely known.  This especially the case with Bradley Manning.  Most of the revelations that have come out due to Manning are trivia and the non-trivia are things which are rightly embarrassing or worse to the subject.  Most of it has been well vetted by the New York Times and others.  Manning deserves to be treated as a hero.  He is a whistleblower who has crossed powerful people.  I'm not quite sure why there's such a push to try Tsarnaev as an enemy combatant.  What is it that they don't want us to see?   Maybe because there was excessive use of force in capturing him?