Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions ' own Judge Nancy Gertner ) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.
Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.
But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.
But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.
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