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The War in Iraq
Wartime is Exception
By Barbara Comstock
Aug 13, 2011, 8:23am



"Wartime is Exception," by Barbara Comstock
Op-ed column from USA Today on Thursday, 08/22/02

(This byliner by Barbara Comstock, director of public affairs for the Justice Department, first appeared in USA Today August 22 and is in the public domain. No republication restrictions.)

Wartime is Exception By Barbara Comstock

(Barbara Comstock is the Justice Department's director of public affairs.)

President Well Within Legal Bounds to Detain Enemy Combatants.

During World War II, a U.S. citizen named Gaetano Territo was captured in Europe fighting with the enemy and was detained in California. The 9th U.S. Circuit Court of Appeals determined that his citizenship had no bearing on his lawful detention, which by then had lasted three years. Similarly, when eight individuals, one a U.S. citizen, entered the country to commit sabotage, the Supreme Court stated unanimously in 1942 that both lawful and unlawful combatants are ''subject to capture and detention."

Now, as in the past, the president's authority as commander in chief to direct the military to capture and detain enemy combatants during war is necessary to protect our nation and prevent future attacks. Those who affiliate with opposing forces and survive the battlefield, or who slip into our country, are captured and detained to prevent them from killing or maiming our soldiers and citizens. Universally accepted principles of warfare and American law -- as well as common sense -- allow the military to hold enemy combatants during hostilities to deny our enemies their continued service, while maximizing intelligence-gathering. To let them go would be suicidal.

Military detention should not be confused with the criminal justice system, which exists for different reasons and requires different procedures. While most Americans grasp this, some editorial pages have exhibited a fundamental misunderstanding about the military detentions of Yaser Esam Hamdi and Abdullah Al Muhajir, born Jose Padilla. Hamdi was captured in Afghanistan with a Taliban unit, armed with an AK-47. Muhajir traveled to Afghanistan and Pakistan, trained with al-Qaeda, then returned to the USA to explore plans to detonate a ''dirty bomb.'' Both fall within the traditional definition of enemy combatants.

Even lawful POWs have no right to lawyers to challenge their military detention. Counsel is provided if a detainee is criminally charged, but he then faces not merely detention during hostilities, but a lengthy fixed prison term or even execution. The 1880 Oxford ''Laws of War on Land'' states, ''the confinement of prisoners of war is not in the nature of a penalty for crime.... It is a temporary detention only.'' Still, some armchair editorial-page generals now suggest that we accord unprecedented rights -- over and above those provided to POWs -- to unlawful enemy combatants who happen to be U.S. citizens.

The military's authority to detain enemy combatants is ''long established,'' as the 4th U.S. Circuit Court of Appeals recently recognized. That our enemy is an unconventional terrorist group rather than a state doesn't diminish the threat. To fight, and win, the current war on terrorism, the president must retain the same authority he has always had to capture and detain those who seek to kill our people and destroy our nation.


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