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I will tell you my understanding, but I have not researched the issue in the kind of depth that I would for a legal memo by any means. I have followed the issue over the years and recently reread the Hamdi decision to refresh my memory when there was some confusion in some earlier discussions on the Q threads.

Our military engages against our enemies. When they engage and capture the other side’s military, there is law that governs how we treat those people. Mostly, they are treated under the Geneva Convention, which is a treaty signed by most of the world’s nations. We generally follow it, even as to non-signatories, as when we were at war with North Vietnam. They did not follow it as to our prisoners. Neither did North Korea or China in the Korean War. We don’t have to follow it, but we do.

The laws of war are many, but they include things not fighting amid civilians, not executing prisioners, not attacking civilians, not raping, things like that. When our military encounters those who are connected to a military enemy but committing those offenses, the military may try those people for those offenses, in a tribunal. Those are not civilian offenses.

There is another body of law that relates to unlawful combatants. Unlawful combatanta are those who are not wearing a uniform, and who are battling the US in unconvential ways. In time of war, it could be a spy sneaking behind enemy lines. Or it could be a unit that is fighting conventionally, but not wearing uniforms, so as to not be identifiable. Either way, the Geneva Convention does not apply to those people. They can be executed, pretty summarily. Not sure what procedure we have in the field, but unlawful combatant has no legal protection. Viet Cong were unlawful combatants. No uniforms, hiding among the population. We treated them too nicely, maybe because they had our guys. But we didn’t have to.

In the civil war, there were southern spies captured in the North, and there were cases to decide if they could be tried by military tribunal or in civil court. The military could try them, as I recall, but there were some cases where the court said they had to be tried in a civil court. I didn’t go back and read those. As best I can recall, it was a mixed bag.

In WW2, a sub dropped off 4 Germans in South Carolina and they were supposed to go around and commit sabotage. They were all captured. One of them was born in the US to German parents and was technically American, just like Hamdi was. The court decided that he was an unlawful combatant fighting for an enemy of the US and the military could try him as a combatant, he didn’t have to be charged with a crime in civilian court. He was tried and executed within about a month or two of his capture. Things worked better back then.

Hamdi was an American born Muslim captured overseas fighting against the US on the field of battle. He claimed as an American, he was entitled to be tried in a civilian court, not by the military. A court plurality of 4 justices found that his claim of not being an unlawful combatant had to be tried before he could be subject to military justice. It could be done in a military court, if there was sufficient due process, or a civilian court, but it had to be first. Then, if it turned out he was an unlawful combatant, he could be tried by the military and treated as their rules allow.

We declared war against radical islamic terror a few days after 9/11. That war is still ongoing. Members of islamic terror groups in the US who are caught could and should be considered unlawful combatants under existing law. If they are US citizens, they are entitled to a hearing to determine if they are an unlawful combatant. It could be in a military or civilian court. At that hearing, the issues would be whether they are a member of a group with which the US is at war and if they have taken actions that make them a “combatant”. Being a Nazi didn’t make on a combatant in WW2. Taking part in war against the US did. So, the kind of actions that might make one a combatant would be examined. Is MB membership enough? Or do you have to be part of a plot to do something? If so, what kind of plot? To register muslims? Or does it have to involve violence? These are things that would have to be fleshed out.

Now, you arrive at the idea floated by many here that traitors who are acting on behalf of Hillary Clinton or George Soros or Obama to help make America a socialist authoritarian state should be tried by a military tribunal. That would take the law as it has been used against American citizens to a new place that has not been tried before. Treason is a civil offense. It always involves citizens and actions to hurt the country, and usually on behalf of a foreign entity. The people we are talking about may not be acting on behalf of a foreign enemy, they may all be domestic enemies who are against the Constitution. How military tribunals fit into such allegations is unclear to me. Seems more likely they would be civilian treason matters.

Some of the conspiracies may involve foreign entities, like the UK or Russia in U1, or aid to Syrian terrorists, or help China with technology and spying. Whether working with foreign actors with whom we are not at war will allow for military tribunals is also not clear. I think it would be an extension of existing law, it would not fit under existing law. From what I know, we are dealing with people who do not mind being bribed by foreigners, who don’t mind helping them, who don’t mind working against the interests of the US, but who are very much acting as domestic enemies of the US, not specifically as agents of any foreign country. They want to take over the country, they don’t want China or Russia to do it. So how military tribunals fit in to that, I don’t know. I think they may well not.

Hope that helps.