Faculty

Published on July 2, 2009 | by LawNews

Prof. Eric Freedman in The Washington Independent

Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, was quoted in the following Washington Independent article.

Detentions and the War/Use-of-Military-Force Distinction
By Spencer Ackerman
The Washington Independent
July 2, 2009

To build off Daphne’s post about defining the battlefield on which detentions occur, Hofstra law professor Eric M. Freedman writes in to make a point about the constitutional differences between a Congressionally-declared war and the situation we’ve been in since 9/11, in which Congress authorized the use of military force. That has implications for the indefinite aspect of battlefield detentions since — as then-Officer Carver famously said on The Wire — wars end. Situations in which Congress authorizes military action against nebulous entities like terrorists don’t need to. And then we’re in murky territory with respect to detentions, even before considering the question of whether the battlefield for military detentions is limited to Afghanistan or extends to the streets of Milan.

Here are some excerpts from Freedman’s letter that I hope capture the point. (The whole thing is kind of too long to publish.) Setup:

In order for there to be *a war* the adversary must be an actual or nascent nation-state, that is, an entity capable of entering into a treaty to end the hostilities. Examples include the Confederate States of America and the Barbary States (with whom we entered into treaties despite earlier denunciations of their corsairs as *pirates*) and the former government of Afghanistan, which the United States defeated in a war in 2001.

The elementary reasons for this limitation are that *war* was so understood at the time the Constitution was ratified and that, as a practical matter, a *war* will end with an exchange of prisoners.

But there is a much deeper reason. The framers were intensely worried about abuses of military power. During a war enemy captives may be held without charges until the end of the conflict. In contrast, when the military uses force in other situations captured prisoners must be brought to trial. The Constitution mandates that the second situation be the norm * whether the evildoers be denominated *pirates* or *terrorists.*

And payoff:

In its court filings regarding the roughly 230 Guantanamo detainees who face indefinite detention (as opposed to the roughly 15 who might face military commissions in some form or another) the Obama Administration has rejected the term *enemy combatants* and thus abandoned the Bush Administration*s confabulation that the country is engaged in a *war* with al-Qaeda. The government still argues, however, that it may detain members of al-Qaeda indefinitely without charges because Congress authorized the use of force against them. But because such detentions are an incident of war, not of the use of force, this is incoherent.

If President Obama is half the politician we know him to be, he will realize that triangulation in pursuit of liberty is no virtue. If fundamental matters of Constitutional law become mere policy differences that change with control of the White House, then a President Sarah Palin will be free to re-write whatever rules President Obama creates. For both short-term and long-term reasons he needs to wrap himself in the flag of a return to long-held consensus values and to marginalize the Bush Administration claims as the radical assertions they were.

I wonder what he makes of this point Brookings’ Benjamin Wittes made to Daphne, though: “… the laws of war unambiguously detain a group of people who are frankly not the real problem in the counter-terrorism arena. And they give you only very ambiguous detention authority with respect to people who are the molten core of the problem … so why not have a detention authority that is designed for the group of people you actually want to detain?”

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