AN ABDULLAH AL-MUHAJIR QUESTION
Part of the justification for remanding Abdullah al-Muhajir, formerly Jose Padilla, to civil criminal custody and thus out of military custody was that he is a US citizen, caught at war against the US, but not in a "zone of combat." Presumably if he had been a US citizen caught on US soil but in a "zone of combat," the 2nd Disctrict Court of Appeals would have ruled differently. After all, Confederate soldiers caught on the battlefield (in a "zone of combat") ended up in prisoner of war camps run by the military, though they were still US citizens in the eyes of Union law. The question of whether they remained US citizens or not after seccession was rather central to the war, but to the Union they very much were citizens in a state of rebellion. That was the whole point, until 1863 at least. And Confederate spies, not regarded as regular troops and often caught out of Johnny Reb gray (and sometimes wearing Billy Yank blue, and sometimes not members of any rebel army at all), were sometimes summarily executed without trial. Yet they were US citizens in the Union's eyes, and were often caught far away from any battlefield or "zone of combat." For the record, Confederates treated captured Union forces and spies in like manner.
But...how does one define "zones of combat" in a war that includes everything from shoe bombers aboard airplanes on international flights over the Atlantic but bound for the US to, maybe, female suicide bombers at loose in New York? Do we say that New York, having already suffered a catastrophic attack, is a zone of combat, while Dallas, which hasn't, isn't? But if there is intelligence indicating a bomber is loose in Dallas, does it become a zone of combat either until the bomb goes off, or until the bomber is caught, or for the duration of the war, having once been threatened? What about Fort Worth, 30 miles west? Or Waxahachie, 20 miles south? Or Austin, a few hours' drive down I-35? And to what extent does it matter that our enemy prefers anonymous mass killing with bombs to any kind of formation-based assault? There isn't much in the way of traditional combat with terrorists, though the death they deliver is no less final.
In a war in which al Qaeda has placed sleeper cells in places like Lackawana, NY, and in which sympathizers have been caught plotting in Oregon, and in which the 9-11 hijackers lived and trained in Florida before killing in New York City, Washington DC and Pennsylvania, what is a zone of combat and what isn't? If US troops have to be involved, well, after the New York attacks on 9-11 US Air Force jets were scrambled to shoot down any aircraft that assumed any kind of threatening posture. Did that make the skies they patrolled zones of combat, but not the ground beneath them? Or was the ground a zone of combat too, until the fighter jets went back home? One would think that two years into this war, we could answer these questions by now. Al-Muhajir's muddled status indicates that we cannot.