Enemy Combatant


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Enemy Combatant

Captured fighter in a war who is not entitled to prisoner of war status because he or she does not meet the definition of a lawful combatant as established by the geneva convention; a saboteur.

The U.S. war against Terrorism that began after the september 11, 2001, attacks led to the invasion of Afghanistan, the toppling of the Taliban regime, and the aggressive dismantling of al-Qaeda terrorist strongholds within that country. Although many Taliban soldiers were released after the conclusion of the conflict, the United States took into custody over five hundred individuals they labeled enemy combatants. This designation, which is also referred to as unlawful combatants, gives detainees fewer rights than those conferred on prisoners of war by the Third Geneva Convention (1949).

According to the articles of the convention, a lawful combatant must be part of an organized command structure; wear openly visible emblems to identify themselves as non-civilians; carry arms out in the open; and respect the Rules of War, which would include not taking hostages. President george w. bush and his administration maintained that the five hundred detainees did not meet these criteria. Therefore, they could be tried for crimes by military tribunals; moreover, the individuals could be held incommunicado for as long as the war lasted, with no access to the U.S. legal system. The confinement of these prisoners at Camp X-Ray at the U.S. naval base in Guantanamo Bay, Cuba, raised questions about the U.S. government's interpretation of enemy combatant status. The fact that two detainees were U.S. citizens complicated matters, as both sought to use the U.S. courts to gain their freedom.

During the last months of 2001, the United States took into custody suspected al-Qaeda terrorists. These detainees included Afghan nationals, Pakistanis, Saudis, Yemenis, and others from different parts of the world. Members of the U.S. military screened and interrogated detainees to identify persons who might be prosecuted or detained, or who might have useful information about the terrorist network. In January 2002, 482 of these detainees were flown to Cuba, where they were incarcerated at Camp X-Ray. The conditions were at best spartan, which drew criticism from Human Rights organizations. Over time the United States upgraded the facilities and by early 2003, a small number of detainees had been returned to their country of origin, having satisfied U.S. officials that they had no terrorist ties.

One detainee, Yaser Esam Hamdi, informed his captors that he had been born in the United States before his family returned to the Middle East. This information led the U.S. military to transfer Hamdi from Camp X-Ray to the Norfolk, Virginia, Naval Station in early 2002. His father filed a Habeas Corpus petition (a legal writ that requires a person be brought before a court) in the U.S. District Court of Virginia, demanding that the government release his son. The district court judge ruled that Hamdi had the right to see an attorney, and the court appointed a public defender to represent him. The Defense Department, however, challenged the ruling, declaring that Hamdi, as an enemy combatant, did not have the Right to Counsel. The Fourth U.S. Circuit Court of Appeals agreed and reversed the order. Nevertheless, the district court still raised doubts whether Hamdi, as a U.S. citizen, could be held as an enemy combatant. The Fourth Circuit finally settled the matter in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), when it ruled that a U.S. citizen captured with enemy forces during a combat operation in a foreign country could be held as an enemy combatant.

Another detainee raised objections in federal court about his enemy combatant status. In May 2002, Jose Padilla, a U.S. citizen, was arrested in Chicago as he disembarked from a flight from Pakistan. Attorney General john ashcroft announced that Padilla was a "dirty bomber," an al-Qaeda terrorist trained to make and explode a low-grade nuclear device. He was arrested under a judicial warrant, which made it necessary for him to make a court appearance. A lawyer was appointed to represent Padilla, but then the U.S. government changed its mind. It informed the judge that Padilla had been classified as an enemy combatant in a military order signed by President Bush. Confined to military custody in a South Carolina brig, Padilla's requests to see his lawyer were refused. This led to a series of hearings and orders in which the U.S. district court judge in New York urged the government to relent and let Padilla consult with his attorney. In December 2002, the judge issued an order directing the government to allow attorney visits (Padilla ex rel, Newman v. Bush, 233 F.Supp.2d 564 [S.D.N.Y.2002]). The government continued to object, leading the judge, in April 2003, to finalize his order so the government could appeal the issue.

Further readings

Cohen, Andrew. June 11, 2002. " 'Enemy Combatant' in Legal Limbo."CBSnews.com: Court Watch. Available online at <www.cbsnews.com/stories/2002/06/21/news/opinion/courtwatch/main513087.shtml> (accessed June 1, 2003).

Ripley, Amanda. June 16, 2003. "The Case of the Dirty Bomber." Time online edition. Available at <www.time.com/time/nation/article/0,8599,262917,00.html> (accessed April 10, 2003).

Cross-references

Deportation; Due Process of Law; International Law.

References in periodicals archive ?
Meanwhile, a CSRT decided that Hamdan's continued detention at Guantanamo Bay was warranted because he was an enemy combatant. Hamdan's habeas petition was accepted by the district court, but the decision was reversed by the court of appeals, which held that the military tribunals had been established by Congress and thus were not unconstitutional.
Rumsfeld, the third of the Enemy Combatant Cases, the Supreme Court provided clear guidance on the protections to be afforded enemy combatants in custody.
First, the government argued that the Authorization for Use of Military Force (AUMF) (16) authorized the President to hold al-Marri as an enemy combatant. (17) Second, the government argued that the President had inherent constitutional authority under his Article II commander-in-chief authority to detain al-Marri as an enemy combatant.
The Bush Administration has defined an enemy combatant as anyone "who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.
As the Center for Constitutional Rights has noted, this could mean that even lawyers for detainees at Guantanamo could be designated as enemy combatants since they could be construed as giving "material support" to those engaged in hostilities against the United States.
ALGAZZAR: I understand that but what I mean is if you say I am an enemy combatant and you say you have evidence, I don't get to see it.
citizen, argued that the Fifth and Fourteenth Amendments were fully applicable to a determination of whether an individual has enemy combatant status, mandating the right to confrontation and counsel.
IT OVERSTATES THE matter to say that the enemy combatant cases were full of sound and fury and signifying nothing, but they certainly signified a great deal less than their sound and fury portended.
Professional ethics and the Geneva Conventions define combatants and non-combatants and prescribe ways to deal with injured enemy combatants as well as access to and safety of humanitarian organisations like the Red Crescent.
The full term Graham is referencing is an unlawful enemy combatant. This refers to fighters for a non-state actor, such as a terrorist group like ISIS, and was established by the Prisoner of War guidelines in the Geneva Convention of 1949.
He added that he was not surprised by the vagueness of the new language considering the ambiguity of the Obama administration's definition of the previously used "enemy combatant," which seemed to include basically any male of a military age who "happens to be there."
The majority of the appellate panel avoided the constitutional question by finding that al-Marri did not meet the statutory definition as an alien who "has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination," and was thus not barred from seeking habeas relief.