Hamdan Questions

[davidebernstein at aol.com]

(1) I'm kind of puzzled as to why the majority in Hamdan thinks that his rights under the "laws of war" are determined by the rights of prisoners of war under the Geneva convention. Wouldn't the better analogy be to "piracy" (also non-state actors). Did the government simply not make this argument in its brief (the opinion has no reference to piracy, far as I can tell.) If piracy is the better anaology, or even if not, why are the traditional rights of those accused of piracy? Could they be charged by military commission? Shot on sight?
 
 (2) Why is the fact that Hamdan's conspiracy with Bin Laden started before 9/11 relevant? Wasn't the U.S. in effect at war with Al Qaeda before then (first WTC bombing, Khobar Towers, etc.)? Even if not, given an ongoing conspiracy, does it matter if the original agreement to conspire occurred before the relevant date? Doesn't continuing the conspiracy after that date (continuing to be Bin Laden's driver) constitute a new agreement to conpsire each time?
    
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