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.

enemy combatant

noun active combatant in the foreign theater of conflict, an enemy force, anarchist, assailant, assassin, attacker, combatant, demoniac force, detainee, enemy alien, enemy operation, faction at war, fanatic, foreign assailant, hostile force, insurgent, murderer, opponent, radical, rebel, revolutionary, revolutionist, rival force, subversive force, terrorist
Associated concepts: alien enemies, justice courts, military tribunals, Patriotic Act, prisoners of war, public enemies, terrorism, treason
References in periodicals archive ?
Lindsey Graham of South Carolina wants Sayfullo Saipov, the suspect in Tuesday's terror attack in New York City, labeled as an enemy combatant.
276) Under this definition, American citizens arrested in the United States could also be treated as enemy combatants under similar allegations, (277) at least if they had traveled abroad and returned for the purpose of engaging in activity related to terrorism on behalf of Al Qaeda.
Instead, the terms "domestic terrorist," "domestic jihadist," or just "terrorist" are frequently employed to describe all categories of actors--unlawful enemy combatants as well as common criminals-leaving both domestic and international audiences puzzled as to what should be the proper rule of law to apply to a given act of terror.
Over the course of hundreds of combat missions, he became frustrated with what he describes as "stove piping" in the decision-making process that sometimes prevented friendly forces from eliminating enemy combatants.
to former Vice President Dick Cheney pounced, saying Abdulmutallab should have been turned over to military authorities for interrogation as an enemy combatant, and eventually tried by a military commission.
The United States has established a humane and secure facility for the detention of captured enemy combatants at Guantanamo Bay.
Practicing attorney Hardy explores the history of US treatment of enemy combatants in order to draw out lessons for the contentious issue of how to treat enemy combatants in the so-called "War on Terror.
78) Therefore, whether the President, through CSRTs, could legally classify citizens as unlawful enemy combatants remains an open question.
But in June 2003, Bush said al-Marri had vital information about terror plots, declared him an enemy combatant and ordered him transferred to military custody.
Therefore, the president argued, enemy combatants did not receive any of the protections given to prisoners of war or to persons accused of a crime.
The attorney general told his listeners that he looks to Congress to "make clear" that federal courts may not demand that enemy combatants be brought to the United States or that intelligence be compromised during habeas corpus hearings.
forces have captured enemy combatants and terrorists on battlefields in Africa and Europe, as well as in Afghanistan, Iraq, and Southwest Asia.