For the moment, we already have something semi-substantive. We should have had it long ago. This is not Kafka’s Mitteleuropa. It’s our government and our information. We should not have had to wait for leakers to get our hands on it.
We can all agree that historical understandings of the dividing line between war and law enforcement do not fit well the kind of conflicts our nation faces today. But the solution to that quandary should not be to cede all discretion to an Executive that works in the shadows. There are other unaddressed needs at work, among them the imperative to cut the public in on the discussion and the decision-making.
How is the Pope like a Peruvian steamship? The State Department stopped both of them from getting sued. You’re right; it’s not funny at all.
Will our next President reverse the dangerous overextension of executive power? Michael Traynor’s talk at the American Law Institute conjures up memories of ancient Rome.
But we had better be prepared for the consequences. Someone, somewhere, is going to try us, quite seriously, for war crimes. And somewhere else, someone is going to commit war crimes against our soldiers because we fail to recognize their own combatants as POWs. And it won’t be pretty.