NoteThe founders are in undisclosed locations, and the Patriot Act forbids me from saying precisely how I am in contact with them, but be assured that I am. All direct quotations from the founders are on the record. In fact, they have been on the record for two hundred years.
What would the founders think of the Supreme Court's decision in Hamdan v. Rumsfeld?
Irregular combatants, like the Gitmo detainees, fared badly in the American Revolution. The largest category were spies: they fought out of uniform, not in regular units governed by the rules of war. When caught, they were summarily executed. A British courier tried to reach Gen. John Burgoyne in 1777, on the eve of the Battle of Saratoga, to let him know that help was on the way from British forces moving up the Hudson River from New York City. When the courier was caught, he swallowed his message. He was given an emetic, which produced it, then hanged. Later, Major John Andre, Benedict Arnold's handler, was caught out of uniform behind American lines. He was wearing his uniform, but he had a cloak over it that concealed it. When plans of West Point, given him by Arnold, were found in his boot, he was tried by the Army and hanged.
In the Constitution, the founders gave the lead roles in prosecuting war to the president and to Congress. The president is Commander-in-Chief. Congress regulates the military, defines offenses against the law of nations, and supplies (or refuses to supply) the funds for warmaking. The founders understood that war is a desperate business. In the Federalist #41, James Madison acknowledged that "It is in vain to oppose constitutional barriers to the impulse of self-preservation….If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government and set bounds to the exertions for its own safety." How much less can a Constitution chain the ambition of terrorists?
Madison went on to say that a "wise nation…will exert all its prudence" to avoid defensive measures "which may be inauspicious to its liberties." That prudence must come from the president and Congress.