Posted by Orin Kerr:
ACS on Enemy Combatants:
Kate Martin and Joe Onek offer an [1]ACS Issue Brief on enemy
combatants. An excerpt:
The administration claims that the conflict with al Qaeda is a
war and that therefore reliance on the criminal law is misplaced.
It then claims that the conflict is a new kind of war, in which the
traditional law of war, including the Geneva Conventions, does not
apply. The President further claims, as Commander in Chief, the
authority to write new rules for the conflict and to do so without
Congressional approval. Finally, the administration claims that
because this is a war, the usual role of the courts in enforcing
protections against arbitrary deprivations of individual liberty
must be suspended.
The administration's legal framework needs to be examined piece
by piece. There are in fact circumstances in the conflict with al
Qaeda - e.g. the invasion of Afghanistan - where the use of
military force is both lawful and appropriate, and in such cases
the law of war governs. But when the courts in the U.S. are open
and the U.S. military is not engaged in combat inside the U.S.
criminal law is the appropriate, adequate and constitutional means
for dealing with alleged al Qaeda associates found in this country.
In no instance does the Constitution give the President the
authority to write new rules for this conflict on his own.
I haven't read the rest of it yet, but it sounds very interesting.
Thanks to Larry Solum for the link. (By the way, publishing an issue
brief such as this seems to be another idea the ACS has borrowed from
the Federalist Society. For a take on similar issues presented under
the auspices of the Federalist Society, see [2]here.)
References
1. http://acslaw.org/pdf/enemycombatants.pdf
2. http://www.fed-soc.org/Publications/Terrorism/unlawfulcombatants.htm
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