by Colleen E. Hardy. El Paso: LFB Scholarly Publishing, 2009. 240pp. Cloth $70.00. ISBN: 9781593323257.
Reviewed by John E. Finn, Department of Government, Wesleyan University. Email: jfinn [at] wesleyan.edu.
THE DETENTION OF UNLAWFUL ENEMY COMBATANTS DURING THE WAR ON TERROR, by Colleen E. Hardy, is a study of the “the three major components of the United States’ detainment of unlawful combatants” (p.8). These are 1) the legal aspects “surrounding the classification of lawful and unlawful combatants,” 2) a “thorough investigation of policies” relating to combatants, and 3) a discussion of “terrorism and military and legal responses to fighting terrorism” (p.8). The absence of a thesis or critical perspective in Hardy’s description of her work is a fair guide to what follows. Unfortunately, the book is more akin to an undergraduate overview of the subject matter (complete with infelicities of style and typographical errors) than a scholarly study of the judicial decisions, legal doctrines, and public policy concerning terrorism.
If there is value to these essays, it is in the comprehensive history of the treatment of unlawful combatants in American law. In Chapter Two, Hardy traces that history, beginning with a discussion of the differences between jus in bello and jus ad bellum. Hardy then addresses a series of questions, including whether the U.S. is involved in an international armed conflict (noting that this determination affects how enemy combatants are “detained and designated”), the distinction between lawful and unlawful combatants, the appropriate classification of members of al Qaeda and Taliban and the consequent questions concerning the applicability of the Geneva Conventions, and finally the history of lawful and unlawful combatants in U.S. armed conflicts. Hardy’s review is lengthy and fair-minded, in the sense that she duly records the academic arguments in favor and opposed to the various decisions taken by the Bush administration after 9/11. But this chapter (like the others), rarely if ever amounts to more than a simple collection of arguments and quotations pro and con. Hardy does not engage or investigate the arguments in any depth.
The chief difficulty with this book, then, is that Hardy does not develop the analytical framework or tools necessary to come to an informed or meaningful assessment of the policies and arguments she surveys. Perhaps the best example of this failure is at the end of Chapter Three, following a discussion of the HAMDI and PADILLA cases. After reviewing the decisions and some of the Bush administration’s responses to them, Hardy simply observes that “All three branches of the United States government have played a key role in the United States’ [*595] response to the tragic events on September 11, 2001 . . . . Therefore, every branch provided an essential part to the United States’ response and has acted in accordance with the powers afforded to them by the Founding Fathers” (p.150). Even as a casual observation, this conclusion is stunningly simplistic. Hardy offers no evidence in support of the claim, provides no standard against which to measure or evaluate it, and gives the reader no tools with which to make an assessment of one’s own. Nowhere will the reader find any indication that what the Founders envisioned for the control of foreign policy was less a finely honed system of legal rules and more an “invitation to struggle.” The uninformed reader is given no indication that there are difficult issues surrounding the war on terrorism that go to the very meaning and definition of the rule of law and separation of powers.
On those few occasions when Hardy does offer an appraisal of policy, she does so without explaining the basis for her conclusions and without offering a metric for assessment. Hardy, for example, simply asserts that military commissions “will ensure classified information will not be released to the accused or the public while also providing the accused with the opportunity to view and dispute all evidence against him” (p.219). This is far from plain. Hardy also concludes that “Protecting classified information is essential to ensuring national security and preventing future attacks and therefore I believe that military commissions are the most appropriate method to prosecute individuals suspected of terrorist activity” (p.219). Reasonable observers might agree with this conclusion, but it is not incontrovertible, and Hardy does little more to buttress it than produce quotations from scholars who support her position. Some readers may also agree with Hardy’s remark that granting the protections of the Geneva Conventions “to those who so blatantly and intentionally disregard all laws and customs of war . . . would surely place the thousands on (sic) innocent lives lost on September 11, 2001 in vain” (p.222), but a scholarly study of anti-terrorism law and policy ought to do more than appeal to raw emotion.
In sum, this study falls short of expectations for scholarship. It covers no new ground and fails to engage the material critically.
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
PADILLA v. BUSH, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).
© Copyright 2009 by the author, John E. Finn.