A quick follow up on the post about the Farouk Abdulmuttalab and the Christmas Day bomb plot. This clip from BBC2’s Newsnight is an excellent summary of the political fallout from the decision to “Mirandize” the suspect and an indication of how deeply divided the country is on the law / war question. I find Senator Graham’s response to Peter Marshall’s question quite interesting. Graham fears changing American law so that there can be detention without trial. He would rather invoke a separate law – the law of armed conflict – to detain enemy combatants without trial. What is interesting about this is how it is potentially changing the Westphalian assumption that only states or state like entities can wage war and have enemy combatant status. Waging war on al Qaeda challenges all kinds of international norms, including state sovereignty, the identification of the combatant and the rights of civilians. Of course, those in favour of the war paradigm do not want the likes of Abdulmuttalab to be a POW, they want after all to be able to detain him indefinitely and prosecute him because he has committed an unlawful act of warfare. But this too challenges a fundamental norm of warfare – the legal equality of combatants. It’s another example of the legal hierarchy that is being introduced into the American notion of war, a hierarchy that is reinforced by the view that US servicepersonnel should not be held criminally accountable under international law (through the ICC for example). So, Graham’s sentiments may be right – ie to protect the principle of no detention without trial in American law, but there are those who do not subscribe to the idea that we can go to war against a transnational network of individuals and they would argue that indefinite detention under the LOAC amounts to the same thing, a breach of human rights. In addition, there is a knock on cost to the other principles (e.g. combatant immunity from prosecution, international order based on state sovereignty) contained within the LOAC.