Published: 1 March 2009
Air & Space Power Journal - Spring 2009

Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases edited by Peter Berkowitz. Hoover Press (http://www.hooverpress.org), Stanford University, Stanford, California 94305-6010, 2005, 196 pages, $15.00 (softcover).

Few topics today are as relevant as what to do with people our military forces detain in Iraq and Afghanistan or with foreign nationals and US citizens our police forces detain domestically, based on the threat of terrorism. In some cases, disposition of these people is clear and well defined, but in many others, there are questions about what to call these individuals, how to treat them (as criminals, prisoners of war, or “persons of interest”), and, ultimately, what to do with them and when to do it.

For many Americans, terrorism up close and personal is something foreign, something that used to happen to other people in other countries. Our legal systems, both civil/criminal as well as military, appear ill equipped to deal with some of the issues they face. Sadly, rather than look at how other countries with more experience in confronting a terrorist threat deal with competing issues of national security and civil liberties, we doggedly trudge onward, hoping the answers will appear before us.

Three terrorism cases that went before the US Supreme Court in 2004 (Padilla, Hamdi, and Rasul) spurred the legal debate not only about the detainees’ status as “combatants” but also about whether or not these individuals have received due process under American law. Additionally, these cases opened a Pandora’s box in terms of determining if the writ of habeas corpus actually extends to “enemy combatants” of any nationality detained under American control but not necessarily on American soil (however one defines that).

These three cases clearly illustrate the existence of a gap of coverage among executive direction, legislation, and judicial decision—not just domestically but internationally. We also encounter debate over the size of the gap or, in some cases, its very existence. Add to the equation the latest variables on civil liberties, and we now face questions for which our US Constitution may not be well prepared.

In Terrorism, the Laws of War, and the Constitution, Peter Berkowitz has assembled a very fine collection of legal essays that illustrate many points of view regarding these questions. Although the book’s six contributors do not agree on all counts of the US Supreme Court’s rulings on these cases, they generally agree on several issues:

• We need a clear definition of the term terrorist, what this entails (whether the person is a criminal, combatant, or something else), and how we should treat such an individual.

• This definition would then provide guidance to member nations of the Geneva conventions concerning the handling and eventual release of terrorists and terrorist-like individuals during a greater military campaign, such as America’s global war on terrorism.

• Domestically, Congress needs to identify and fill the gap between US criminal law and US military tribunals, based upon the updated definition of terrorist as well as an updated Geneva convention. Ultimately, this should include clear guidance on the detention process (where and for how long), handling (questioning versus interrogation), and the rights of potential victims under this new label as well as the preservation of civil liberties for those otherwise uninvolved. The ongoing Padilla case illustrates this gap quite well. A recent bill by Senator John McCain (R-AZ) already addresses torture provisions but needs clarification.

• Broader still is the debate over US presidential power—specifically, how far it should extend during a conflict such as the war on terrorism and how long into/after the conflict. Coupled with this is the quandary in which Congress places itself by allowing a presidential “first move” over issues of national security and civil liberties that entail an actual or perceived legislative void.

Why read this book? Quite simply, some service personnel may someday find themselves on a combined/joint staff, wrestling with issues similar to the ones addressed above. They may serve as the presiding officer of a military tribunal or become in some other way connected to the detention and handling of an “enemy participant” or a bona fide terrorist in the war on terrorism. If the military’s domestic role continues to increase, they could also face potential posse comitatus and other civil-liberty issues that bleed directly back to the very questions the essays in this book address.

Terrorism, the Laws of War, and the Constitution makes for interesting reading. The essays are thought provoking; even if I didn’t agree with a contentious essay, I found myself pondering the points it made. Some of the essays are full of legal jargon, which makes reading laborious at times. However, I consider the book an especially good read for all military personnel who will in some way deal with terrorism issues during the war on terrorism and similar conflicts in the future.

Maj Paul Niesen, USAF
Scott AFB, Illinois

Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.

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