Hostile Protected Persons or 'Extra-Conventional Persons': How Unlawful Combatants in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders

Abstract

This study of the extraordinary challenges faced by military attorneys and commanders in the fight against terrorism is a portrait of how law, war, and politics have converged to raise the stakes and increase the complexity of legal operations in the U.S. armed forces. Although many articles have probed the nuances of international law, the law of war, and military criminal justice and procedure, this article offers a balanced analysis of controversial and politicized topics (such as the disputes between uniformed lawyers and other government attorneys), and assesses the professional education and training system of Army leaders and attorneys in military and international law. It offers a look inside the question of how to apply the law of war to operations in Afghanistan, Iraq, and Guantánamo Bay as well as observations on how long-practiced Army legal training can be trumped by “executive fiat.” This article summarizes the current military-legal situation for civilian observers while also providing insight and perspective to those military lawyers who have been working to meet the very challenges described.

Keywords: law of war, international humanitarian law, law of armed conflict, Geneva Conventions, protected persons, prisoner of war, JAG, Military Lawyer, judge advocate general