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 ?
All the evidence points to the fact he should be characterized as an unlawful enemy combatant 6 not a common criminal.
Hanft (264) to support its contention that al-Marri is an enemy combatant within the meaning of the AUMF and the law of war.
Without a significant about face in leadership that can actually discern the basic difference between an unlawful enemy combatant and a domestic criminal, America's reputation will remain under a cloud of suspicion and confusion regarding the legality of our actions associated with two significant areas of critique: rendition and targeted killing vis-a-vis unlawful enemy combatants in the War Against al-Qaeda.
arguing that Mohammed and the others should be tried as enemy combatants before military commissions, moved to deny federal funding for the trials, a proposal that drew some Democrats' support.
The Boumediene Court provided a means for testing the President's assertions vis-a-vis any particular person accused of being an unlawful enemy combatant, but, going no further, the Court provided no guidance as to what CSRT determinations would be struck down or on what basis.
His designation as an enemy combatant was dropped, and the government brought felony terrorism charges against him in federal criminal court.
citizen confined in a Charleston, South Carolina, naval brig after being transferred from New York as an alleged enemy combatant.
Hamdi provides that once the Government has offered evidence in support of its continued detention of an alleged enemy combatant, the detainee must be permitted "to present his own factual case to rebut the Government's return [argument].
Part II explains how CSRTs depart from that tradition and why their enemy combatant determinations cannot be used to rebut the Geneva Conventions' presumption of POW status.
The act defines an enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or anyone who "has been determined to be an unlawful enemy combatant" by a tribunal set up by the President or the Secretary of Defense.
Up against a deadline to either charge him or let him go, the government came up with a new option: It labeled Padilla an enemy combatant, announcing with much fanfare that he had been part of an Al Qaeda plot to explode a "dirty bomb.