(Tung Yin) Most of my recent academic writing has been on constitutional law issues arising out of the war on terrorism. A short summary of my view is that the congressional Authorization to Use Military Force empowers the President to employ military force permissible under international law, against those entities designated by Congress as the targets of such force. As such, while criminal prosecution might be another appropriate means of pursuing the perpetrators of the 9/11 attacks, the President need not choose that path.
But there are some crucial consequences of the President’s choice of the war model rather than the prosecution model. Criminal law exists to allow us to punish those who are culpable — generally through imprisonment, but possible also through execution. (Whether the death penalty is constitutional, or even a good idea is a different matter that I’d like to put aside.) Because punishment is so grave, we provide the defendant with numerous procedural rights (counsel, no self-incrimination, presumption of innocence, the government’s burden of proof beyond a reasonable doubt).
Military detention does not impose such high hurdles on the government; during World War II, for example, no one would seriously contend that German POWs were entitled to counsel, or even status hearings. On the other hand, unless the soldier was convicted of committing a war crime, the captured soldier could be detained only for the purposes of preventative incapacitation, not punishment. Thus, the Geneva Convention now describes conditions of confinement for POWs that are much more generous than your typical prisoner gets.
The problem with this analysis as applied to the current war on terrorism, of course, is that the war model doesn’t fit perfectly, since we are not dealing with another nation-state or even guerrillas who are spontaneously defending their own homeland. Even more of a problem is that the combatant status of detainees becomes crucial in a way that is not the case with your traditional war.
That is, during WW II, if you capture a bunch of guys in German uniforms, there’s really no need to hold any kind of hearing on whether they’re German soldiers. You detain them and treat them as POWs, and that’s the end of the story. A hearing would most likely be pointless, since the persons the detainee would want to call as witnesses would be enemy aliens, and we’re not in a position to subpoena such persons.
An Attorney Mommy Story 