The question of whether we are engaged in war or crime control has been a central feature of debates over how we are to treat captured enemies in the war on terror. It's a tough question, but it's one that needs to be answered definitively. The U.S. government and the American public need to be clear about what kind of endeavor we are engaged in for several reasons: (1) it will help keep our own forces from exceeding standards of behavior; (2) it sets a clear example for other countries participating in the war on terror; (3) it provides straightforward precedent for similar endeavors in the future ; and (4) from a purely political standpoint, it keeps war opponents from using ambiguity to make rhetorical points.

Regarding this last point, make no mistake: Jeralyn and others like her (including the NY Times editorial board on several occasions) score rhetorical points by claiming that combatant-detainees should be charged with crimes or released. But to make those points they rely on a few things about their readers: ignorance of international law and ambiguities about the current detention regime.

I always try and step in when I see people misunderstanding or outright ignoring international law. But I can't do anything to undue the operational ambiguity with which the war has been pursued. I can only welcome with relief those occasions in which the Supreme Court, Congress, or the President have stepped in to try and straighten things out.

Peaches, as I said, this topic has been discussed many times before. But one of the best treatments of it I have seen is that of Professor Kerr over at Volokh Conspiracy. Last month he wrote about the two systems America has created to deal with hostile actors: war and criminal justice. I encourage you to go over and look at what he wrote and also at the very interesting comments. Here is the key excerpt that may aid our discussion:

Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.

The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.

What we are faced with now is deciding whether certain acts fall into the war response or the criminal justice response to hostile actors. Some cases are quite clearly one or the other. For example, an Iraqi Republican Guard or Taliban soldier caught on the battlefield in Iraq or Afghanistan fighting against our invasion clearly belongs in the "war response" category. On the other hand, a lone American who attacks a ticket-counter in a U.S. city, even if politically motivated, belongs in the "criminal justice response" category.

The questions become harder when the hostile acts don't fit neatly into either of the two groups:
(1) What do we do about quasi-military groups fighting on the battlefield? Is that war or criminal justice?
(2) What do we do about quasi-military groups who send operatives to conduct attacks in the U.S? War or criminal justice?
(3) What do we do about U.S. citizens who fight against us on the battlefield? War or criminal justice?
(4) What about U.S. citizens who want to conduct attacks in the U.S. under the direction of quasi-military groups who are fighting us overseas? War or criminal justice?

Professor Kerr notes that the Supreme Court was faced with this question in Hamdi v. Rumsfeld and answered by giving us a balancing test under the Fifth Amendment:

Under the Due Process approach offered in Hamdi, an individual's procedural rights -- what trial they get to test their detentions -- is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.