From the Halls to the Shores

"...the various new substitutes for "unlawful enemy combatant" abolish an important distinction in traditional international law. As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws).

Bellum became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, "the common enemies of mankind," traditionally has been summary execution.

Though they don't often employ the term, many legal experts agree that al Qaeda fighters are latrunculi -- hardly distinguishable by their actions from pirates and the like."

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UPDATE:

Obviously, if the United States Navy hanged some eyepatched peglegged blackguard from the yardarm or made him walk the plank, pious senators would rise to denounce an America that no longer lived up to its highest ideals, and the network talking-heads would argue that Plankgate was recruiting more and more young men to the pirates’ cause, and judges would rule that pirates were entitled to the protections of the U.S. constitution and that their peglegs had to be replaced by high-tech prosthetic limbs at taxpayer expense.