Many enemy combatants will likely be held in custody while the WOT continues or Obama is elected, whichever comes first. Confinement for as long as other soldiers are fighting the battle seems reasonable. OK, add 10 years on the backside for good measure.
You said:ART. 85. DESERTION
(a) Any member of the armed forces who--
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
I think the death penalty for desertion only is applicable if it is a declared war because of the phrase "during time of war". There is only one way to enter into a "time of war" and that is through the declaration by the Representatives of the people, according to the Constitution. The Commander in Chief can authorized deployment of troops and Congress can fund it but that is not the same legal status as a declaration of war.
You can be punished for desertion under the UCMJ for but only put to death if it is a declared war.
Congress never declared war.c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
The Constitution of the United States prescribes that Congress declare war, if needed. They didn’t think it was needed in Iraq for some reason or another.
The death penalty seems very harsh for desertion when the deserter was not in the theater of combat and never directly put any other soldier's life at risk by his cowardice. In this case I think an execution could be considered cruel and unusual punishment.
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