On Detaining Prisoners of War

SayUncle mentions the fourth circuit decision that the feds can’t hold people indefinitely without charging them, and says it’s good. I agree that it’s good, in this case, but it does bring up an interesting problem of how to deal with the topic of prisoners in this type of warfare, which is something civil libertarians don’t spend enough time thinking about.

It’s generally been understood that the military may detain, without charges, and without recourse to the civilian courts, combatants that have been captured in a theater of war. It’s also understood that spies and saboteurs, even if captured away from the battlefield, may fall under military jurisdiction if captured. This is one of those essential things that government traditionally have been allowed to do in the exercise of their military powers.

The big problem I see with the “War on Terror” (we really need to come up with a better name) is that it paints a very fuzzy line between the state’s exercise of military power and the exercise of police power. Because we’re not dealing with the typical type of belligerent you encounter in war; because we’re not fighting any single nation, with an army who’s soldiers wear uniforms, bear arms openly, and fight in organized military units, it’s not clear where the state’s military power should end, and the police power ought to apply.

I do think in the current conflict that the military needs to retain the ability to keep prisoners of war, but when combatants should be considered POWs, held under military authority, or prisoners, held under civilian authority, I’m not sure about.

The best I can come up with is that if persons are captured as combatants in a theater of war they may be treated as prisoners of war for the duration of that conflict. If they are captured domestically, or even internationally, as part of police actions, rather than military operations, they are entitled to the same due process as anyone else subject to criminal prosecution.

But that does raise the problem of status. What’s to stop abuses by the executive branch of its military power? How does someone detained under military jurisdiction challenge his status? I think these are questions that Congress probably ought to be thinking about. In wars between organized states, and their armies, having a recourse to civilian courts could create a nightmare, as enemy prisoners of war would be trained to file lawsuits in order to drain their opponents resources. But we’re not likely to see large numbers of prisoners of war in this current conflict.

This war is different, and we’ll need different rules. But the left certainly isn’t seriously thinking about the issue in a helpful or intelligent manner, and the right certainly can’t be trusted to come up with rules that respect proper limits on the state’s military powers. It’s something for liberty minded folks to think about, because we’re going to be having this debate as a matter of consequence, whether we want it or not. With the left being intellectually out to lunch, those of us who cherish liberty and individual rights may have to tow the banner on this, but I think we have to come up with rules that respect the individual, without limiting the state’s military powers to such a degree that we can no longer prosecute wars effectively.

UPDATE: Professor Kerr has more on the subject here.