We're All Enemy Combatants Now

Tweet "The military commission legislation to be presented today will likely speak to the scope of the term “enemy combatant,” but not the process for designating them—because the administration’s position is to press for as little process as possible. The draft legislation contained a definition as hazardously capacious as the Wolfowitz definition: someone who “engaged in hostilities against the United States” and has “committed an act that violates the law of war.”

"At first blush, this appears to be a narrow definition, containing only those who in fact are implicated in some serious crime. But any limit to that definition vanishes upon closer examination of the legislation. For one of the “war crimes” listed in the statute is conspiracy. Because conspiracy has long been criticized as a vague and open-ended concept that is amenable to abuse by prosecutors, it has not traditionally been part of the law of war. The situation at hand shows why. To allow individuals to be designated “enemy combatants” based on the allegation that they have some part of a terrorist “conspiracy” is to return to the Wolfowitz definition. It is to legitimate the detention of the English teacher and the little old lady in Switzerland on the minimal—and entirely blameless—acts they committed."