By Phillip B. Heymann* —
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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.
James Barr Ames Professor of Law, Harvard Law School.