The laws of war and the war on terror

Lee A. Casey and David B. Rivkin Jr.:

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"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.

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"(Alexander) 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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"...U.S. forces are shooting at al Qaeda and its allies. The individuals detained as enemy combatants are held because they are believed to be al Qaeda, or allied, operatives. They are not held 'indefinitely,' any more than men taken prisoner at the beginning of World War II were held indefinitely. When a war ends, captives must be either freed or prosecuted for violations of the laws of war."

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