Perhaps the most significant problem faced in modern times is where to draw the line. Much of the problem with the inability to determine legal outcomes is because the courts are struggling with just where to draw the line. The effort to combat terrorism has its own line, one that was put into sharp relief on 9/11 when the official view of the line changed.
Q&O takes a look at this in Miranda and War.
The primary issue (and I’m simplifying here) centers around just how detainees caught on a battlefield should be handled if they don’t fit the established parameters of soldiers under the Geneva Conventions. Although there appears to be agreement that reading detainees Miranda rights is a step (or three) too far, there is also wide agreement that we should be skeptical about allowing our government so much latitude as to hold anyone indefinitely. I think closing the gap on those parameters is the challenge to be met, but I don’t think it is possible to do so without understanding how war differs from law enforcement.
Some of the factors that complicate the issue include the nature of the behavior, the organizational nature of both the perpetrator and the victims, whether the perpetrators are citizens or not, whether the act was foreign or domestic, and the purpose of the act. When we had massed armies in uniform acting on each other we had a clear understanding that it was war going on. That clear understanding became clouded when we encountered guerrilla warfare and terrorism where acts were often ideologic rather than nationalistic and the perpetrators engaged against civilians and individuals.
The conundrum about piracy is an example. It used to be that merchant ships would carry guns to defend themselves and a pirate had no friends and no recourse if caught. These days a pirate is seen as a common criminal who must be provided all civil rights. A result is a piracy problem. The line is being re-examined.