So, they can be held "indefinitely" only because there is no definite date on which hostilities will end. They can be held "for the rest of his or her life" so long as they die before cessation of hostilities.

It's funny, I always assumed that the implicit assumption underlying the very existence of war powers was that war was a temporary stateof affairs. A bill of rights doesn't do much good if the last two amendments are "The above are null in void in times of war" and "By the way, we're always at war".

As I posted once before, the DC District Court sums up the law very well in a 2004 case, Abu Ali v. Ashcroft. (And, by the way, just because you don't like the law, doesn't mean it is not, well, the law.)

The [Supreme] Court explained [in JOHNSON, SECRETARY OF DEFENSE v. EISENTRAGER] that it was "confronted with a decision whose basic premise is that these [non-citizen] prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus." 339 U.S. at 777. The Court explained that the right to habeas rests on an "ascending scale," with citizens at the highest point and the rights of aliens descending from there on the basis of several variables. "With the citizen we are now little concerned," the Eisentrager Court noted, "except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens." Eisentrager then concluded that a military prisoner is not "constitutionally entitled to the writ" where, as in that case, "(a) he is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

That wasn't vitriol you sensed. It was sheer, utter, and complete CONTEMPT for what bush and his republican guard have wrought in what formerly was the greatest nation on earth.

the constitution quite clearly makes no distinction whatever between citizens and "aliens". there is no exception, period. to assert otherwise flies in the face of the clear intent of the authors.

This has actually become an interesting conversation.

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

So I looked to see what the Supreme Court has said. The Court's most recent discussion of the permissible length of detentions is recorded in the much-discussed 2004 case, Hamdi v. Rumsfeld. This is the case which ruled that citizen-detainees must be afforded access to US courts, even those who fought for the Taliban and were captured on a field of battle in Afghanistan.

In his argument, Hamdi challenged the legality of indefinite detentions. The government counter-argued that mid-war detentions during WWII were just as indefinite. This is what the Court had to say:

We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." ...

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899 (as soon as possible after "conclusion of peace"); Hague Convention (IV), Oct. 18, 1907 ("conclusion of peace" (Art. 20)); Geneva Convention, July 27, 1929 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them 'without delay after the cessation of active hostilities,' unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences."

This is a useful review of international law for all of us. Detainees, at least those that are prisoners of war and possibly those classified as unlawful combatants, can be held under international law until "active hostilities" are over, unless they are being prosecuted or are serving prison sentances. The Court goes on to explain how that would occur in Hamdi's case:

[W]e understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. ...Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. ...The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

So, there is our answer. Several things will be considered to bring a "cessation of hostilities" between the US and the Taliban. (It will be the same for the various other groups we're currently fighting) Here's what I can think of:

(1) US forces stop fighting in Afghanistan.
     a. the President can order this.
     b. Congress can order this.
     c. (unlikely) US forces can be utterly destroyed.
(2) Taliban forces stop fighting in Afghanistan.
     a. they can themselves withdraw from battle.
     b. they can be destroyed.

Personally, I think the best bet is 1a or 1b. The same options exist for a cessation of hostilities in Iraq. The real question arises for those hostilities that cannot be categorized in terms of geographic boundaries. I'm talking about the war with Al Qa'ida. The Court leaves open the possibility of a separate answer:

If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, [the above] understanding may unravel.

To date, it is an unresolved question.

To sum up, I did all this because I was curious about what the law said. Commentators have been quick to decry the unfairness of indefinite detentions. There has been no shortage of claims that a "civilized" people wouldn't do this sort of thing. But these same commentators have shown little interest in discovering just what the law has to say. Now we know: