- The Washington Times - Monday, January 26, 2004

This is the second in a weeklong series on the law and war on terrorism.

The reluctance of some to accept that September 11 initiated a “war” is understandable, since the government’s power expands exponentially during wartime. Although the Latin maxim inter arma silent leges, “during war the law is silent,” has never applied in the United States, the balance between individual rights and the community’s needs tilts decidedly in the community’s favor during an armed conflict. Nevertheless, it is richly ironic that the issue of particular concern to human rights advocates has become the detention of captured al Qaeda and Taliban members.

The right to detain enemy combatants during wartime is one of the most fundamental aspects of the customary laws of war and represented one of the first great humanitarian advances in the history of armed conflict. Before the right to detain (and corresponding obligation to give quarter) developed, captured enemies were often killed out of hand — unless they could buy back their lives through ransom.

In fact, the right to detain enemycombatantsin wartime is so basic that is has rarely been adjudicated,althoughthe Supreme Court acknowledged its existence in the 1942 “Nazi Saboteur” case, Ex parte Quirin. It is an inherent part of the president’s authority as commander-in-chief, and was well-known to the Constitution’s framers. Alexander Hamilton addressed this very point in 1801, responding to President Jefferson’s doubts (he had been abroad during the Constitution’s adoption) about his right to attack and capture, without specific congressional approval, hostile Barbary ships.

Hamilton noted that “[w]ar, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other” and that the Constitution does not require specific congressional authorization for such actions, at least after hostilities have commenced. Indeed, he wrote, “[t]he framers would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and convenience.”

Significantly, Hamilton was addressing circumstances involving hostilities between the United States and a quasi-state whose “armed forces” took the form of pirate crews targeting civilian merchant ships. This is particularly instructive because, although many of the Bush administration’s critics readily concede that the laws of war permit the detention of enemy combatants, they seek to distinguish the “war on terror” because it involves irregular forces responsible, more or less, only to themselves, rather than the regular armed forces of a hostile country.

The laws of war, however, also permit the capture and detention of irregular combatants. Indeed, they emphatically permit the capture and execution of such individuals, who are considered to be “unprivileged” or “unlawful” combatants, and who are not entitled to the rights and privileges of honorable prisoners of war.

Since the close of World War II, irregular combatants have been entitled to some minimal level of legal process before they can be punished. They remain, however, enemy combatants subject to detention throughout the conflict in which they are captured.

To some extent, this confusion is a self-inflicted wound. Although the legally relevant facts make clear that the United States is engaged in a definitearmedconflict against the states, organizations and individuals responsible for the September 11 attacks, authorized by Congress in a Joint Resolution, and that will end when those states, organizations, individuals, and their allies, are defeated, administration officials have persisted in characterizing the conflict as a generalized war on terror.

In fact, we are not at war with “terror.” American land, air and sea forces are not arrayed against the “Real IRA,” Basque separatists, Tamil Tigers, or any of scores of other terrorist organizations that blight the planet.

Instead, U.S. forces are shooting at al Qaeda and its allies. The individuals detained as enemy combatants are held because they are believed to be al Qaeda, or allied, operatives. They are not held “indefinitely,” any more than men taken prisoner at the beginning of World War II were held indefinitely. When a war ends, captives must be either freed or prosecuted for violations of the laws of war.

Significantly, the nationality of captured enemy combatants is utterly irrelevant; both American and international law allow U.S. citizens to be designated as enemy combatants and treated accordingly. (The president, however, decided, in exercising his policy discretion, that U.S. citizens would not be tried by military commissions.)

That said, legitimate concerns have been raised about the detention of al Qaeda and Taliban operatives as enemy combatants, and about the president’s authority to designate and detain enemy combatants generally. Because the detainees chose to engage the United States as unprivileged or “unlawful” combatants, they do not enjoy the rights and privileges guaranteed to prisoners of war by the Geneva Conventions and have little recourse under them. Moreover, there is no doubt that, at least in theory, the president’s authority to designate and detain individuals as enemy combatants could be abused.

However, it is most emphatically not the case that this is a limitless or unchecked power. There are real limitations on this president authority in this area, both constitutional and practical.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Reagan and Bush 41administrations.


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