Wikipedia outlines this controversial position at:
http://en.wikipedia.org/wiki/Unlawful_combatants
The concept of "unlawful combatants" [derives] from a 1942
United States Supreme Court decision in the case ex parte
Quirin, through which it was introduced into US domestic
law.[16] In this case, the Supreme Court upheld the
jurisdiction of a U.S. military tribunal over the trial of
several German saboteurs in the US. This decision states:
"...the law of war draws a distinction between the
armed forces and the peaceful populations of belligerent
nations and also between those who are lawful and unlawful
combatants. Lawful combatants are subject to capture and
detention as prisoners of war by opposing military forces.
Unlawful combatants are likewise subject to capture and
detention, but in addition they are subject to trial and
punishment by military tribunals for acts which render their
belligerency unlawful. The spy who secretly and without
uniform passes the military lines of a belligerent in time
of war, seeking to gather military information and
communicate it to the enemy, or an enemy combatant who
without uniform comes secretly through the lines for the
purpose of waging war by destruction of life or property,
are familiar examples of belligerents who are generally
deemed not to be entitled to the status of prisoners of war,
but to be offenders against the law of war subject to trial
and punishment by military tribunals."
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