Unlawful Enemy Combatants

Summary: In 2001, President George W. Bush declared certain fighters for Al Qaeda and the Taliban in Afghanistan to be "unlawful enemy combatants." This designation, made by a presidential order, was intended by the Bush administration to effectively remove prisoners so designated from protection under the Geneva Conventions. The designation led to prisoners being held without access to lawyers or judicial reviews to determine whether they should have been kept prisoner. It also led to a string of Supreme Court decisions and efforts by Congress to overcome those decisions. The concept of unlawful enemy combatants is not new, dating back at least to the nineteenth century.

In the wake of the Al Qaeda attacks on New York and Washington on September 11, 2001, and the US invasion of Afghanistan that followed later that autumn, the United States began designating captured pro-Taliban fighters as "unlawful enemy combatants" (often shortened to "enemy combatants," but the legal issues surrounding this phrase deal with "unlawful" enemy combatants, as distinguished from "lawful" enemy combatants such as soldiers of a foreign power). Some of these virtual prisoners of war, along with suspected members of Al Qaeda captured elsewhere (including in the United States), were sent to the American military base at Guantánamo Bay, Cuba, where their detention appeared to be indefinite. In two cases, men arrested inside the United States—one a citizen, one not—were held without legal hearing after being designated as unlawful enemy combatants.

The designation "unlawful enemy combatant" impacted two legal areas: the rights of foreign citizens captured outside the United States and the rights of individuals (including American citizens) captured inside the United States. Unlike traditional "prisoners of war," the treatment of whom is covered by the Geneva Conventions and whose release depends on the cessation of hostilities between states, "unlawful enemy combatants" do not belong to a recognized government entity engaged in a formal state of war with the United States.

The administration of President George W. Bush took the position that unlawful enemy combatants held outside the United States (and, in some cases, held inside the United States) were not protected by Constitutional law, most notably the Fourth Amendment right to legal counsel and a judicial hearing to determine their guilt or innocence on designated charges (habeas corpus).

Civil libertarians challenged this policy as a violation of the Constitution. In the case of prisoners held abroad, the Supreme Court eventually ruled that such prisoners must be brought before military tribunals conducted according to ordinary standards of the Uniform Code of Military Justice. In June 2008, the Supreme Court expanded on this opinion, ruling in the case of Boumediene v. Bush that the military tribunals did not provide an adequate substitute for a hearing in a federal court. The Boumediene decision effectively gave designated unlawful enemy combatants the same status as any civilian arrested and held in the United States. Leading up to the Boumediene decision, details of military tribunals hearing the cases of unlawful enemy combatants had been the source of a prolonged tug-of-war involving the administration, Congress, and the Supreme Court.

The three cases of designated enemy combatants held in the United States (Jose Padilla, also known as Abdullah al-Muhajir, Ali Saleh Kahlah al-Marri, and Yaser Hamdi) were effectively rendered moot. Padilla and al-Marri were eventually charged in federal court—Padilla was convicted, and al-Marri pleaded guilty. Hamdi, a US citizen captured in Afghanistan, was expelled to Saudi Arabia on the condition that he renounce his American citizenship and never return to the United States. Their cases differed from that of another American citizen captured in Afghanistan, John Walker Lindh, who was brought back to the United States and charged with several counts of conspiracy to aid Al Qaeda. Lindh eventually pleaded guilty in a plea bargain and was sentenced to twenty years in prison. He was granted a three-year supervised release in 2019.

In December 2002, the general counsel of the Defense Department, William J. Haynes II, gave this legal framework to unlawful enemy combatants in a memorandum addressed to the Council on Foreign Relations in which he wrote:

"There is no doubt that the September 11, 2001 attacks constituted acts of war. They possessed the intensity and scale of war. They involved at least one military target, the Pentagon, and they came on the heels of a decade of attacks by al-Qaida (sic) on US military and civilian targets. Congress, on September 18, 2001, authorized the President to use force in response to the attacks. Both the United Nations and NATO recognized that the attacks were "armed attacks" within the meaning of the UN Charter and NATO treaty.

"War implicates legal powers and rules that are not available during peacetime. Among other things, the war context gives the President the authority to detain enemy combatants at least until hostilities cease.

"An 'enemy combatant' is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with Al Qaeda and the Taliban, the term includes a member, agent, or associate of Al Qaeda or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 US 1, 37-38 (1942): 'Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.'"

Enemy combatant was the designation created by a presidential military order on November 13, 2001, under his constitutional powers as commander in chief. It was not contained in a specific law passed by Congress outside the Authorization for Use of Military Force passed on September 18, 2001.

Background

For decades, governments have recognized the concept of "unlawful enemy combatants." One example is pirates attacking naval and private commercial shipping. The term was applied during the War of 1812 to detain citizens thought to be aiding the British in that widely unpopular conflict. The concept of "laws of war" dates to at least 1857 and the Paris Declaration, intended to protect neutral shipping from warfare.

Combatants in civil wars have long been viewed as "criminals" subject to civil law rather than soldiers of a legitimate adversary since the entity for which such soldiers fight (e.g., the Confederacy in the American Civil War) is considered unlawful.

Similarly, terrorists have long straddled a line between "lawful combatants" and "unlawful combatants." When terrorists attack recognized governments on behalf of non-governmental organizations (such as Fatah in the case of the long-standing Palestinian campaign against Israel), they have been designated "unlawful enemy combatants" whose activities went beyond simply committing crimes since, in most respects, they were acting like soldiers.

Common Article Three of the Geneva Conventions was designed, in part, to deal with conflicts that did not necessarily involve two nation-states. A so-called "Common Article 3 conflict" may involve international hostilities between two recognized nation-states or internal warfare (civil war). Article 3, contained in all four Geneva Conventions, provides blanket protection for combatants regardless of the character of the conflict.

Enemy Combatants in the War on Terror

The idea of enemy combatant long predates the "war on terror" proclaimed by President Bush in 2001. The term designates a category of prisoners captured in wartime who are not regular enemy soldiers, but are judged to be actively participating in an enemy's war effort. Effectively, enemy combatants are regarded as non-uniformed prisoners of war—they can be held indefinitely until the end of hostilities.

The concept aroused controversy in the United States because fighters for Al Qaeda were not agents of a state against whom Congress had declared war. Moreover, the designation was applied to American citizens in at least three cases. Jose Padilla was arrested on American soil and held in a military brig without access to legal counsel after returning from Afghanistan; no allegation of a specific act was leveled against him. Yaser Hamdi was a naturalized American citizen arrested in Afghanistan and charged with aiding Al Qaeda. A fourth case involved Ali al-Marri, a Qatari citizen living legally in the United States on a student visa, when he was arrested and held without trial as an enemy combatant. Critics argued that an American who had sent a contribution to a charity found to be funneling money to Al Qaeda, for example, could, in theory, be designated an "enemy combatant" and jailed indefinitely without formal charges being brought or legal counsel provided.

Critics argued that an American who had sent a contribution to a charity found to be funneling money to Al Qaeda, for example, could in theory be designated an "enemy combatant" and jailed indefinitely without formal charges being brought or legal counsel provided.

Legal Issues

The main objection to "illegal enemy combatants" was the denial of habeas corpus—the right guaranteed by the Fourth Amendment to the Constitution of a prisoner to be told of the charges against him and to challenge those charges in court, assisted by a lawyer. In general, the Bush administration believed that enemy combatants, including US citizens, had no right to legal counsel while being held on the grounds that lawyers might interfere with efforts to extract valuable intelligence.

Critics of the Bush administration policies argued that several hundred prisoners are held in Guantánamo on weak or no evidence and that a court should review this evidence. Supporters of the policy argue that Constitutional law does not apply outside the United States and that enemy combatants may be held until the end of hostilities, even if an end date of hostilities with an enemy like Al Qaeda may be vague.

The idea of enemy combatants without Constitutional rights was also applied in at least one case to an American citizen arrested inside the United States. Jose Padilla was declared an enemy combatant and held for more than three years without a hearing and without legal counsel. He was originally held as a material witness to the attacks of 9/11. He was accused, but never formally charged, with plotting to import a dirty bomb into the United States on behalf of Al Qaeda. A US Court of Appeals eventually ruled that the government must cite the specific reasons for his designation as an enemy combatant and that he had a Constitutional right to hear and a chance to refute such charges. Rather than do so, the Justice Department released Padilla from military custody and charged him with crimes related to terrorism in Florida, for which he was later convicted. The administration insisted that his case had become moot before the Supreme Court heard it.

The Bush administration has also asserted that non-citizen enemy combatants held at Guantánamo had no rights to counsel—or any other Fourth Amendment rights under the doctrine of habeas corpus. In 2004, in a 6-3 decision, the Supreme Court overruled two lower courts in Rasul v. Bush, deciding that US courts had the authority to determine whether foreign nationals were rightly imprisoned in Guantánamo. The two enemy combatants who brought the case were later released to British custody. A similar case involving an Australian citizen, Mamdouh Habib, arrested in Pakistan in 2001 and transferred to US custody, was rendered moot in January 2005 when the US declined to press charges. Habib was released.

In response, in December 2005, Congress passed the Detainee Treatment Act of 2005, which required uniform standards for interrogation of prisoners and specifically banned cruel, inhuman, or degrading treatment. The act also eliminated federal courts' jurisdiction over habeas corpus claims by some detainees at Guantánamo.

Military Tribunals. After establishing that Guantánamo "illegal enemy combatants" were entitled to a judicial hearing on their status, the legal battle turned to the character of such hearings. In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that military tribunals at Guantánamo, established to comply with Rasul v. Bush, were unconstitutional because they failed to comply with both the Uniform Code of Military Justice as well as the Geneva Conventions, specifically Common Article 3 of those conventions.

In response to Hamdan, Congress passed the Military Commissions Act of 2006. The law again authorized the military to conduct tribunals for prisoners under the Uniform Code of Military Justice and again expressly denied such detainees' rights under the Fourth Amendment by declaring that Chapter 47 of the Uniform Code of Military Justice did not apply to enemy combatants. This law, too, was overturned by the Supreme Court in June 2008 in the case of Boumediene v. Bush. The Court ruled 5-4 that the military commissions established by Congress did not provide a sufficient substitute for a hearing in a federal district court.

Hamdan v. Rumsfeld. In June 2006, the Supreme Court rejected the effort by Congress to eliminate court jurisdiction over illegal enemy combatants. In the case of Hamdan v. Rumsfeld (Hamdan was an enemy combatant challenging his detention; Rumsfeld was Secretary of Defense Donald Rumsfeld), the Court ruled that US courts did have jurisdiction and that military tribunals established under the Detainee Treatment Act violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions.

(Paragraph 1(d) of that article regarding "persons taking no active part in the hostilities, including … those placed hors de combat … (for) any other cause" must not be subject to "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.")

Forever Prisoners. Enemy combatants who have occupied the United States Guantanamo Bay detainment camps in Cuba who are deemed too dangerous to release are considered forever prisoners. One such prisoner, Moath Hamza Ahmed al-Alwi, was captured by the US military in 2001 in Pakistan. The Bush administration believed he was one of Osama Bin Laden's bodyguards. Al-Alwi has been detained at Guantanamo ever since. In defiance of his inprisonment, he began a hunger strike and at one point weighed less than one hundred pounds. On June 10, 2019, the Supreme Court denied al-Alwi's request to hear his appeal, which argued that the 2001 Authorization for Use of Military Force (AUMF) could no longer serve as the basis for his detention during a conflict that had now ended. He had served eighteen years.

Enemy Combatants Inside the United States

In two cases, individuals arrested inside the United States (Jose Padilla, a citizen, and Ali al-Marri, a legal resident) were designated "enemy combatants. In a third case, Yaser Hamdi was a naturalized US citizen arrested in Afghanistan and brought to the United States as an "enemy combatant." The fact that all three men were either citizens or residents of the United States meant their cases were to be handled differently. The government initially argued that all three could be treated the same as foreigners arrested abroad and held abroad as enemy combatants. Eventually, however, Padilla was transferred to a regular federal court, where he was tried and convicted on conspiracy charges and sentenced initially to seventeen years in prison, but after an appeal trial, he received twenty-one years. Al-Marri was similarly indicted on conspiracy charges and pleaded guilty in 2009. He was sentenced to eight years in prison, much of which he had already served. In 2015, al-Marri was repatriated to Qatar. In 2004, Hamdi was deported to Saudi Arabia on the condition that he renounce his citizenship and never return to the United States. He was then inprisoned by Saudi Arabia for an additional fifteen years. The Supreme Court did not issue a final ruling on their status or rights as designated "enemy combatants."

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