This has historically included the trial and punishment of those violating international laws governing war (both enemy and friendly). The powers to conduct the nation’s wars are primarily shared by the political branches. Therefore, their conduct and interactions (called “belligerent intercourse” by Henry Halleck) were governed only by the laws governing war, or any relevant and specifically applicable domestic law. According to Francis Lieber, war suspended the civil laws between opposing armed forces. Military law commentators expressed this conceptual framework in different ways. All are completely reconcilable under a proper analysis of relevant precedent, in my humble opinion. Quirin and Yamashita (and many, many other cases) support it. Properly read and placed in context, neither Boumediene nor Milligan conflict with this. domestic populations – where the relationship is less clear). A close reading of Supreme Court precedent clarifies that the political branches exercise war powers in a manner exclusive from the Bill of Rights (except with regard to U.S. This is not based on their nationality or territorial location. Public enemies of the United States have never been afforded the protections of the Bill of Rights. There is no need for Yoo’s pragmatic argument, however, because precedent in this area appears to provide a different answer. Only an extremely limited understanding of combat operations would lead one to believe that law enforcement-like compliance with the Bill of Rights should be expected or required during armed conflict.

That said, Yoo’s pragmatic argument is a valid concern. Yoo’s mistake is in making a pragmatic argument about the availability of constitutional rights that can be attacked as has been done below. Let me first briefly address John Yoo’s recent WSJ comments. Based on my current research for an article (in partial draft), I doubt that this is constitutionally required as a matter of relevant Supreme Court precedent. I do so because the decision to try individuals such as KSM in federal court has generated concern that the Bill of Rights must now be observed to some vague extent in any such trials, and through logical extension, potentially in future military operations.

I write to take advantage of a generous invitation to guest blog here at Opinio Juris.

Law of armed conflict in constitution