The New York Times reported yesterday that 5 American citizens from the Washington DC area have been charged by a Pakistan court with “plotting attacks in Afghanistan, raising money to commit terrorism and planning attacks against Pakistani allies and targets within the country”. Now, if we remove the second of these charges, it sounds like these individuals were travelling to a battlefield to wage war. So why have they not been labelled ‘unlawful enemy combatants’ and held indefinitely until they are put on trial by a military commission? That of course would have been the implication had the Pakistani authorities taken the line being espoused by some in the US following the Abdulmuttalab case. Rather than risk corrupting Pakistan’s criminal justice system to deal with suspected American terrorists, Pakistan should – the argument goes – treat these individuals as unlawful enemy combatants and deal with them under the law of armed conflict. I wonder what the American response to that would have been? Given that American grown jihadists – the list of which is growing – have not been detained under the law of armed conflict, there would likely have been much protest. This risk of course is that such a protest would have appeared hypocrtical in the context of the arguments but forward to justify prolonged detention and trial by military commission for foreign individuals travelling to the US to commit terrorist acts (eg Abdulmuttalab).