Academic

Glazer on Lawyering the War on Terror

By Lawrence Solum

David W. Glazier (Loyola Law School Los Angeles) has posted If I Could Turn Back Time: Re-Lawyering the 'War on Terror' on SSRN.  Here is the abstract:

Although the so-called "War on Terror" has entered its seventh year, key legal issues such as the precise identification of the adversary, permissible geographic scope of the conflict, and proper classification and treatment of detainees remain largely unresolved. Meaningful discussion has been impaired by the lack of common ground between the Administration and its critics, coupled with a general unfamiliarity with the relevant international law. Military victory is no longer possible, but good faith application of authority from the law of war can complement traditional criminal law in combating the threat in a manner meriting international public support. Even if the Geneva Conventions do not apply to this conflict as treaty law, there is a large body of customary international law, including many of the Geneva rules, that would still govern, providing potential solutions to some of the difficulties in applying criminal law to counter the terrorist threat. If the war is validly limited to those organizations authorized by Congress, the military (but not the CIA) can legally target members of al Qaeda and the Taliban, and these individuals are subject to preventive detention without the requirement for criminal trial. But the conditions of that detention must meet international standards which are currently being violated, as must any actual trials. Good faith application of law of war rules also offers better protections for civil liberties than proposed solutions such as national security courts offering less due process than regular federal trials. Such measures start down a slippery slope of compromising legal standards on the basis of expediency that can be avoided through the careful application of existing international law. Although the Bush Administration has suggested that it would close Guantanamo if it had a legal alternative, the reality is the President has all the authority required to direct U.S. government personnel to act in faithful compliance with recognized law.

Full post as published by Legal Theory Blog on October 17, 2008 (boomark / email).