Run, Don’t Walk, To Your Nearest Bookstore …
Should the fate of Umar Farouk Abdulmutallab, who tried to blow up a plane over Detroit on Christmas Day, be decided by the United States military or by a federal court? If only an Article III court could try him, does that mean that only the FBI can question him, subject to all his constitutional protections (including his right to remain silent)? Or should he have been turned over to military interrogators immediately, as former federal judge and Attorney General Michael Mukasey suggested last week: “[h]olding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful” (What Does the Detroit Bomber Know? Wall St. J. 1/16/10).
Resolving these questions isn’t easy, and certainly isn’t merely a policy choice. Several panels at the AALS Conference in New Orleans last week were devoted to national security issues. But more than once, I heard the leading experts in the country disagree on how to resolve this fundamental question: when must captured, suspected terrorists be tried in our criminal justice system and when should the laws of war, a.k.a. international humanitarian law (IHL) apply?
Needless to say, an understanding of the laws of war/IHL helps untangle this challenge. But how many of us had such a course in law school? A chance encounter with the subject in practice? Fortunately, the best new book you can read on the subject has just been published by Oxford University Press: The War on Terror and the Laws of War: A Military Perspective. (Full disclosure: I received a complimentary review copy.) You can peak inside the cover at the table of contents and read reviews at its Amazon.com page.
Here are three reasons why you should have this book on your shelf:
(1) The authors. Geoff Corn, Eric Jensen, James Schoettler, Dick Jackson, Victor Hansen and Michael Lewis have over a century of collective experience in the United States Army and United States Navy working on the very issues they analyze. They have been prosecutors and defense counsel, legal advisors and strike planners. They have also been combatants themselves. Rarely does one get the chance to read a careful, academic analysis written from the vantage point of scholars with such extensive experience with so many different facets of the subject of their study.
(2) The subjects. This book covers the gamut of critically important topics: the choice of law, targeting, detention, interrogation, war crimes liability, command responsibility, and the difficulty inherent in translating legal principles into on-the-ground practice. The perspective is future oriented but also offers insights on the legal decisions and policy choices of previous administrations. All that, under one cover, is hard to find.
(3) The presentation. Civilians can read this book! It is pleasantly free of jargon, thoroughly footnoted (with both references to primary sources and useful commentary on secondary debates), and judiciously edited. There is also a valuable thread of debate on several issues that can be traced through the authors’ contributions. They don’t always agree themselves on all points. This provides a further source of confidence in the thoughtful and lawyerly quality of their views, regardless of whether one agrees with them.