Thursday, July 07, 2005

Prof. Volokh defines "Enemy Combatants"

The following shot from the hip is rather persuasive, though admittedly narrow in its scope. Before reading the essay, I can suggest that what is missing from the analysis is the desiribility of sacrificing liberties (the liberty interest of the un-proven enemy combatant). More specifically, I would say the liberty interest of the U.S. citizen who is un-proven to be an enemy combatant.

The purpose of detaining enemy combatants is prevention. An enemy soldier wants to kill our or our allies' soldiers (and often civilians). We normally stop that by killing him. But when he surrenders, we prefer not to kill him: Killing the enemy generally isn't our goal, but just the means to the end of protecting ourselves and our allies — and if we can serve that end by locking a captured enemy soldier up instead of killing him, we do that (and are required to do that by the laws of war).

The thing that makes this logic work, however, is our ability to keep the man locked up. When we release him, he can go right back to killing our soldiers. What's more, it seems quite likely that he will: If he tried to fight us once, why wouldn't he do that again? We release ordinary criminals after some time chiefly because we hope that the term in prison has deterred them from repeating their crimes. But someone who obviously isn't deterred by the risk of being killed (the high risk, when you're a small force fighting the U.S. military) isn't going to be deterred by the risk of repeat incarceration.

Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians. Option 3 strikes me as deeply unsound, and not required either by justice or by international law.