The "Legalization" of War

One of the themes that I have been interested in is the "legalization" of war, namely the degree to which uncertainty or fear inhibits military commanders from acting. We have seen this somewhat in detention cases, where challenges to detention have been brought, even seeking habeas corpus where foreigners are detained abroad. It is a significant change from previous wars, where the United States held 400,000 German prisoners in the United States and elsewhere. Some books that have influenced by thinking are Jack Goldsmith's "The Terror Presidency;" Eastland's "Energy in the Executive;" Posner's "Not a Suicide Pact: The Constitution in Times of Emergency;" and Rehnquist's "All the Laws but One: Civil Liberties in Wartime."

If detainees can challenge their detention in court, it is possible that soldiers may decide to kill detainees rather than take them captive. I am troubled by suggestions that military commanders may need to have a lawyer at their side to advise them on targets and other policies that properly belong to a military commander.

There were three new developments last week that are actually related. In the first, the Supreme Court took up two more habeas corpus cases, in which U.S. citizens apparently supporting the enemy were detained by U.S. forces, and then turned over to Iraqi courts. The detainees are seeking habeas corpus in United States courts, even though they were captured in Iraq. I had thought this was already decided against the detainees by a WW2-era decision, but apparently the Supreme Court wants to revisit the issue. This is a separate case from the Guantanamo cases mentioned below. I am troubled that a U.S. District Court would want to consider whether an individual could be detained by coalition forces half a world away. Would it want to take testimony from the soldiers who detained them? It seems rather impractical.

The second thing I would like to comment upon is that new National Intelligence Estimate. First, I am surprised that this sort of thing is even made public. I tend to agree with John Bolton that too many CIA people want to make policy and there seems to be some unlawful leaking going on.

Finally, I would like to comment on the apparent destruction of videotaped interrogations of (apparently) Abu Zubaydah and another Al Qaeda operative. If a videotape showed that he was being impoperly interrogated or otherwise mistreated, it could have an effect on a military prosecution of him (apparently Zubaydah was a 9/11 planner and the other detainee was a planner of the USS Cole attack in 2000). Of course, the United States does not have to put detainees on trial; but it could cause a court or military commission to throw out the charges. Therefore, I agree that there needs to be an investigation--and it looks like there will be one, both by the Justice Department and the CIA Inspector General (who is a St. Olaf grad :)).

I am not sure I would agree that criminal prosecution is warranted, however. Let's say that the CIA destroyed the tape to protect the identity of its interrogators; its interrogation techniques; or its methods, such as "false flag" techniques (like pretending to be interrogators from Saudi Arabia or elsewhere). I could see that you would not want to have this information fall into the hand of the enemy. At the same time, anyone who ordered the destruction of evidence should be accountable for what he or she did, but probably not criminally prosecuted. I believe that the CIA Inspector General and the Justice Department will do an adequate investigation, and there is no need for a "special prosecutor" unless it is shown that the CIA Inspector General or the Justice Department cannot impartially conduct the invesigation.