The Law and War; U.S. Right to Detain Combatants

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Byline: Lee A. Casey and David B. Rivkin Jr., SPECIAL TO THE WASHINGTON TIMES

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 …