Detention of enemy combatants

[Frank Cross]

I think we have another definitional problem with "enemy combatants"

The present situation is not perfectly analogous to the wars cited as
precedent.  In each of those cases, there were enemy soldiers attacking the
US on a daily or near daily basis.  While terrorists obviously present an
ongoing threat to our nation, it is not the same as a traditional war.

For one thing, enemy combatants in a traditional war is temporally limited.
 No one suggested Germans or Japanese were enemy combatants after 1945, I
trust.  America will always face a terrorist threat, meaning that the
threat of abusive detention will never end.

Second, this presents a clear slippery slope problem.  After the Oklahoma
City bombing, one might conclude that at least a portion of the domestic
militia movement was terrorist and "at war" with the U.S.  I would not want
to see them detained without representation or judicial review.   Saying
we're in a war with terrorists and slapping the label "enemy combatant" on
a person seems too easy.  Perhaps this might be a good doctrine to confine
to congressionally declared wars.


Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712