What Kind of Armed Conflict?
The Supreme Court’s assumption in Hamdi was that Congress had given the President authority to detain in line with the legitimate and accepted scope for detention in armed conflict. In looking at the war in Afghanistan, the Court was evidently relying on a traditional model of inter-state armed conflict. In such conflicts, it is indeed a settled principle that enemy combatants may be detained until the close of hostilities. The detention of these fighters is based on their status as a member of a defined group, consisting of the enemy’s armed forces and associated militias; anyone in this category can be held without independent oversight, and would be entitled to the rights of a prisoner of war. But even in such conflicts, fighters who are not part of formal armed forces are treated by the laws of war in a different way. They are regarded as civilians, but fall into a special category of civilians who are taking part in hostilities. Because they are not entitled to fight, they do not
