Part I - Rights for Hostile Aliens are Unnecessary
Many felt that the Bush administration's assertion of executive branch power went too far. Some cases justified this view, such as when Jose Padilla, a U.S. citizen, was labeled an enemy combatant, stripped of his constitutional rights and imprisoned without charge. The courts rightly intervened and acted as a check on an overly broad assertion of executive power that potentially threatened the rights of all Americans. But the backlash caused by the Bush administration has gone far beyond a check on executive power, and instead has greatly expanded judicial power into areas that have traditionally been the prerogative of the executive branch. This trend is both unnecessary and dangerous. In my opinion, it is far more dangerous than any of the questionable actions taken by the Bush administration.
Even if it were a rational and desirable thing to grant rights to hostile aliens, it would be unnecessary, because they already have adequate protection. Any alien dealing with the U.S. can and should be represented by his/her home state. This has long been the primary means by which states deal with citizens of other countries in times of conflict or war. If an alien is captured and detained by the U.S., his home state is free to demand an explanation for his capture and imprisonment, and if not satisfied, to request his release or other measures. In some cases states can even intervene on behalf of their resident aliens, as the U.K. did for Binyim Mohamed. If the state representing the alien and the U.S. government cannot come to a resolution, then, and
only then, should the matter end up in court -- if the alien government sues on behalf of the captive. Cutting out the foreign governments, and allowing each individual detainee representation in U.S. court is not only incredibly stupid, unmanageable and dangerous, it is also a radical change from customary & traditional practice, especially in time of war.
It should be obvious, but the aliens in question are not peaceful residents or visitors to the U.S.. They are presumed hostile individuals captured overseas. In some cases they are actual known enemies, caught in acts of war or positively identified by clear & undeniable evidence. They are not and should not be entitled to any rights whatsoever, except the right to have the U.S. notify their home country that they have been captured. If their home country declines to intervene on their behalf, it is not for the U.S. to make up for the deficiencies of every other country.
Part II of this post will cover the dangers of extending rights to hostile aliens.