(Updated). My new FindLaw column (now posted here) examines the curious circumstance in which Salim Hamdan will soon find himself: Given credit for time served, his sentence will have run, but---at least according to current Pentagon plans---he will continue to be detained as an enemy combatant. The column explains and critiques the Bush Administration's account of why such continued detention is permissible. I argue that preventive detention for an indefinite war should require periodic reevaluation of the threat a detainee poses.
In the course of the column, I have occasion to discuss---mostly in passing---the distinction between lawful and unlawful enemy combatants. I refer to another column of mine, written in 2002, as "somewhat naive" in retrospect. My analysis at the time was not wrong, but I overlooked a crucial distinction between lawful and unlawful enemy combatants: The latter may be interrogated. It did not occur to me in 2002 that the main reason the Administration wanted to treat its detainees as unlawful enemy combatants was so that it could interrogate them. Why not? Probably because I assumed that Taliban captives had little in the way of useful info and that al Qaeda captives would not readily reveal what secrets they had.
With respect to al Qaeda, this assumption was doubly mistaken: 1) I have since learned that al Qaeda captives had previously divulged valuable information under ordinary (i.e., non-"enhanced" interrogation). And 2) we have all learned that the Administration wanted to---and did---subject some al Qaeda captives to waterboarding and other "harsh" interrogation techniques.
Here I just want to note that the particular form my naivete took was assuming that there was at least some internal logic to the Administration's desire to classify detainees as unlawful combatants. But there wasn't: Even unlawful enemy combatants are entitled under international agreements that bind the U.S. to be treated humanely, so classifying them that way never provided any legal justification for waterboarding. Even if waterboarding is not "torture," it certainly isn't humane treatment.
Coming tomorrow: Part 2 on the Hamdan verdict and sentence.
Posted by Mike Dorf