By Phillip B. Heymann* —
Click here to read the full text of the Essay
In response to various scholarly commentaries, Professor Philip Heymann argues that applying the law of war outside of the “normal state-against-state context,” in order to justify military detention, involves an “increased risk of mistakes, unfairness, and resentment by our allies,” as “in the context of a traditional war,” the law of war would otherwise provide “protective conditions that are not present when the context changes to international terrorism.” With a proposed modification to the Speedy Trial Act, Professor Heymann argues that shifting to a law enforcement-based approach “comes much closer to honoring both the protection against mistakes and the protection against indefinite, perhaps lifetime, detention” without sacrificing our security.
* James Barr Ames Professor of Law, Harvard Law School.
Phillip B. Heymann
James Barr Ames Professor of Law, Harvard Law School.