Detention of enemy combatants
VOLOKH at MAIL.LAW.UCLA.EDU
Tue Oct 29 14:27:33 PST 2002
What some people call "silly pseudo-Socratic questions where the
'questioner' really knows what the answer is" other people call "rhetorical
questions" or possibly "hypotheticals aimed at demonstrating a point."
Indeed, this falls into that category, silly me. My view is that
the German soldier should not be released. Why is that so? I had thought
that I had explained the key justifications in the previous post.
First, to my knowledge the traditional understanding within American
history has been that the military is entitled to detain people, and is not
bound by the rules of evidence in proving their position; I am not
completely sure of that, and if people know some contrary evidence, I'd love
to hear it. (For instance, this issue must have come up in some measure
during the Civil War; was habeas seen as being available to test these
Second, regardless of what the specific tradition as to hearsay
evidence has been, the general tradition -- which I think also coincides
with necessity -- is that the military has been indeed entitled to detain
prisoners of war and other enemy detainees generally; that really is pretty
clearly our constitutional history (see the Colorado case that I mentioned
earlier, but that's just an unusual application of the broader, historically
agreed-to principle). Should this tradition be limited to the situation
where the military can prove the person's enemy status under the generally
applicable civilian rules of evidence? I don't think so: The difficulties
of gathering evidence, taking subpoenas, conducting depositions, and so on,
make this infeasible.
Again, I think I've made these points in some measure before, but
since I was asked about this, this is my answer.
> -----Original Message-----
> From: Mark Tushnet [mailto:tushnet at LAW.GEORGETOWN.EDU]
> Sent: Tuesday, October 29, 2002 12:27 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Detention of enemy combatants
> Eugene asks: "Well, let's say that during World War II some
> French soldiers turned over to U.S. custody someone they said
> they found fighting for the German army. It turns out this
> man was a U.S. citizen. He's then taken to a POW camp in
> Virginia, and petitions for habeas corpus. The U.S. says
> "Sure, we're relying on hearsay, but in war we often rely on
> hearsay. And no, we can't identify the soldiers -- we have
> no idea who they were." Should the alleged German soldier be
> released?" Well, what's Eugene's answer? Once again, the
> "conservative" position goes undefended. Or is this one of
> those silly pseudo-Socratic questions where the "questioner"
> really knows what the answer is?
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof