Two things distinguish the irregular wars in Iraq and Afghanistan: It is not clear who is a combatant, and the United States is fighting a conflict with no clear battlefront.
That leaves us with the vexing question of how to handle detentions in this particular form of warfare.
For much of the period following 9/11, the Bush administration claimed that no legal authority could constrain the executive, regardless of the source of law and regardless whether at home or abroad or whether applied to enemy combatants or U.S. citizens. In response, civil libertarian objectors tried to fashion claims that domestic law should apply to all uses of American national security power, adopting the same blanket approach as the administration, only in reverse. When pressed to the point of claiming that there must be full judicial proceedings in a war zone, as in the recent case claiming habeas corpus rights for prisoners at the Bagram air base in Afghanistan, the civil libertarian claim collapses as lacking legal authority and being thoroughly impractical.
So what's the answer?
It is worth starting with first principles: Detention is the object of wartime capture. An army encountering a hostile military force seeks to degrade its continued fighting capacity, including by capturing as many of its combatants as possible. The object of such detention is not penal; indeed, the laws of war prohibit the application of criminal processes absent extraordinary, specific crimes. It is not a criminal offense to be on the losing side of a battle in a war. But neither is it a pass to return to the field of battle.
In conventional wars, enemy soldiers are held away from the battlefield until the end of hostilities or through a prisoner exchange. The status of being a combatant is what justifies detention, and that applies regardless of the particular function performed. In war, it is as lawful to detain the cook as the bombardier. The critical question is not whether the detainee has committed a crime but whether he is part of a belligerent fighting force.
But we are not fighting conventional wars in Iraq and Afghanistan. In regular wars, soldiers are distinguished by uniforms and the open display of weapons. The requirement of identifying their rank and unit further distinguishes the detainees from civilians and in turn requires treatment as a prisoner of war. In Iraq and Afghanistan, the U.S. confronts unlawful combatants who do not identify their military status and who must be separated from innocent civilians.
Nor is there a defined battleground or clear end to the conflict. With Al Qaeda, at least, there is no corresponding sovereign with whom to negotiate an eventual cessation of hostilities. That means that the concept of detention until the end of hostilities does not match the battlefield realities.
Under these circumstances, we must fashion procedures to do two things: There must be a legal mechanism to determine the propriety of detention based on a correct identification of an individual's status as a combatant. And there must be a new process to determine the need for continued detention, reflecting both the fact that it is intolerable to hold individuals forever and that it is equally irresponsible simply to release individuals to resume terrorist activities.
In the absence of credible legal mechanisms to perform these two functions, pressure will mount on U.S. courts to apply customary tools such as habeas review to fill the void. Similarly, the failure to highlight the central role of detention in wartime leads to misplaced demands that all detainees be tried through civilian criminal processes under misguided expansion of domestic criminal laws.
The American military has taken a critical first step toward filling this void with the creation of Detainee Review Boards, which will assume responsibility for expeditiously assessing the status of an individual as a combatant. That cures a major failure of prior policy, which allowed individuals to remain in custody for years without any attempt to verify that they were in fact combatants. The boards' processes, if correctly applied, should provide a legally adequate response to the demand for some confidence in the propriety of detainee detention.
What remains is the daunting task of developing proper procedures, including regular review, to assess the continued dangerousness of combatants then detained. The initial impulse to reduce this to a question of individual criminal culpability — either under American or Afghan law — fails to address the fact that detention is about status as a combatant and runs into immediate practical problems of proof, witnesses and trial format. Unless this issue is addressed properly, the demands for habeas or some other form of legal relief in American courts will return in years to come, likely for the exact same prisoners.
Samuel Issacharoff is a professor of constitutional law at NYU School of Law.