Detention of Enemy Combatants: A Reply to Eugene Volokh at Law & Society Blog

Detention of Enemy Combatants: A Reply to Eugene Volokh

Published by Hanno Kaiser July 8th, 2005 in Law and Society

Is the indefinite detention of enemy combatants unfair? According to Eugene Volokh, it is not. At least, he writes, the arguments commonly advanced to buttress claims of unfairness are unconvincing. I don’t want to take issue with Volokh’s factual propositions, many of which I believe to be wrong, for example, that people who fight against an overwhelming force, invading their country, are unlikely “to be deterred by the risk of repeat incarceration.” Rather, I want to address the underlying normative question, which is valid. In my view, the answer is that the indefinite detention of anyone under any conditions, without a trial and subsequent conviction, is morally impermissible. The primary reason is that under a rule of law, which is a moral, not a legal concept, there should be no persistent pockets of executive or military power that are beyond the reach of the law. I appreciate that there may be temporary extensions of “political authority over military affairs where the judicial power may not enter,” as Justice Kennedy states in his concurring opinion in Rasul v. Bush, but temporary is the critical qualifier here. After three years there is no credible claim of military exigency any more and whatever pocket of executive power beyond (or maybe, prior to the arrival of) the law might have existed, should have disappeared by now. Only that it hasn’t. And that is what makes the detentions at Guantanamo morally unjustifiable. In other words, detention limited in scope, conditions of confinement, and duration may be justifiable, even though much of it should be subject to ex post judicial review. In contrast, indefinite, extra-legal detention is a per se violation of the rule of law. And as such, it is morally unjustifiable.

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2 Responses to “Detention of Enemy Combatants: A Reply to Eugene Volokh”

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1 Beldar Jul 9th, 2005 at 1:43 pm

The war in which these men were captured is of indefinite duration. Indeed, the nature of this war, by the choice of those who declared it on us, makes it less likely than traditional wars to have a definite and predictable conclusion.

But that does not convert combatants, fighting against our armed forces as soldiers (conventional or unconventional, with or without compliance with the legal principles that differentiate between genuine POWs and unlawful combatants), into civilians. That does not mean we must analyze them as if they are mere criminals instead of captured soldiers.

These men were not “arrested” in a “pocket of executive or military power,” whatever that means. They were captured on a battlefield during a war — duly authorized by Congress, and applauded and assisted by most other civilized nations — intended to topple a government in Afghanistan that directly threatened our national security and the safety of all civilization.

The detention of these men is not “extra-legal”; it is entirely legal under the laws of war, and entirely consistent with what’s been done by America and every other civilized country in all wars. (Uncivilized countries just kill captured combatants; I’d agree that THAT would be outside the rule of law.)

You missed Prof. Volokh’s entire point, which is amazing, given that he didn’t engage in any academic psychobabel but wrote in amazingly plain and simple English. If you were forced to do the same, your argument would implode after about three sentences, sir. If you can’t tell the difference between a battlefield and a “pocket of executive or military power,” I respectfully submit that you’ve lost touch with reality. You should be glad you’re not ON a battlefield, and you should pray you’re not in the next skyscraper or subway that our enemy decides to turn into a battlefield, nor on the ground of the sanctuaries (like Afghanistan was) to which our enemies may still retreat to train and plan their next attack.
2 Milhouse Jul 11th, 2005 at 3:38 pm

In early 1944, could you have predicted how long WW2 would go on? It could conceivably have taken decades to defeat the Japanese, if not the Germans. Does that mean it was “morally impermissible” to hold POWs captured in 1939, without any trial or judicial proceeding?