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

The Washington Times (Washington, DC), January 27, 2004 | Go to article overview

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


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 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 enemy combatants in wartime is so basic that is has rarely been adjudicated, although the 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.

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