Again, I think our considerations are derailed from the get-go by terminology. In the current Iraq situation, “battlefield” is not quite the term to frame the issue of judicial deference to military judgment. This is not George Washington’s, or Grant’s, or Pershing’s, or Ike’s, or Ridgeway’s war: in these aforementioned settings, none of those generals needed to doubt, nor would any judge presume to second-guess, the classification of a captured Redcoat, Confederate, German, or North Korean soldier. All the fore-going instances were declared wars against national entities fielding uniformed armies (even Sherman treated captured Johnny Rebs properly). Petraeus’s ‘battlefield’ is hell-and-gone from that: there is no national entity with whom we are at declared war (and if Congress could have so declared, yet instead merely passed the AUMF, what does that import?); there are no uniformed enemy troops; worse – there are only operatives indistinguishable from civilians; and US troops are on foreign territory uninvited. In fact, it appears that Iraq is a battlefield only in the sense that US troops are greatly at risk and under fire, which – while a situation demanding every citizen’s full and sustained attention – is not sufficient grounds for invoking the profound judicial deference accorded to the battlefield operations of Washington, Grant, Pershing, Ike, and Ridgeway.
Let us also consider that while not dispositive it is undisputed that much of the world’s opinion – official and public – strongly inclines toward considering this ‘battlefield’ as very possibly the site of large war crimes; and its managers, especially its senior ones, will remain at legal risk around the world long after they leave office or retire with their medals. Thus to continue now to hobble whatever judicial influence might be exerted to somehow rectify – curing is no longer a possibility – this thing, based on inaccurate terminology, is simply going to reduce the credibility of our judicial maturity around the world. We shall increasingly be considered an oversized banana republic, and one that is running out of bananas.
