Whether Army Regulation 190-8 requires an individual determination of legal status as a prerequisite to criminal prosecution of combatants for battlefield conduct

QUESTIONS PRESENTED Enemy soldiers captured by the United States military on a battlefield are subject to combatant detention, Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004), and prosecution for war crimes, Johnson v. Hisentrager, 339 U.S. 763, 786 (1950). Combatants seized in an armed conflict, however, have never been criminally prosecuted in an Article III court simply for fighting against United States soldiers. Dow v. Johnson, 100 U.S. 158, 165 (1879); Coleman v. Tennessee, 97 U.S. 509, 516 (1879). The questions presented are: (1) Whether Army Regulation 190-8 requires, as a necessary prerequisite to criminal prosecution of combatants under domestic law based on battlefield conduct, that a competent tribunal make an individual determination as to the detainee’s legal status? (2) Whether the common law provides a defense against the criminal prosecution of foreign soldiers for otherwise lawful battlefield conduct?