Enemy Combatants: Overview

Introduction

After the global war against terrorism began in the wake of the September 11th, 2001, attacks on the United States, the legal status of enemy combatants became a topic of international debate. According to the view of the US government, an enemy combatant is a fighter who is not considered a member of a nation’s army. Enemy combatants may or may not be United States citizens. Individuals who are known enemy combatants are further subdivided under law as being lawful or unlawful. Individuals that have been designated as unlawful enemy combatants have been captured and held in custody by the United States without recourse to due process for an indefinite period of time. Human rights groups and legal authorities have challenged the right of the United States to detain individuals in this manner.

The US government, particularly during the early years of the War on Terror, defended its position and created a legal framework for dealing with suspected terrorists it has detained. According to the government, in time of war, civil liberties cannot always be safeguarded when they conflict with the foremost priority of protecting the United States and its citizens. Wartime conditions warrant the president ordering the detainment of unlawful enemy combatants, without providing them with legal recourse, until the war ends. In some cases, military tribunals have been used to judge enemy combatants rather than the jury trials required by civil law.

Human rights groups and some legal authorities, in contrast, argue that there has to be a universal standard for dealing humanely with enemy combatants, and that the rights of the individual cannot be discarded until he or she has been given access to legal aid and been pronounced guilty in a free and fair trial. For US citizens, they argue, the suspension of such rights, including the right of trial by jury, is unconstitutional. For foreign combatants, it contravenes the Geneva Conventions. In short, in their view, the executive branch of the US government has used its powers illegally.

As evidence suggesting wrongful detainment and torture in custody continues to surface, the calls for oversight and change to the prevailing status of enemy combatants have become more urgent.

Understanding the Discussion

Article II: An article of the US Constitution that defines the powers of the executive branch, including the president's status as commander-in-chief of the military.

Amendment V, VI, and XIV: Three amendments to the US Constitution which govern the rights of persons accused of crimes.

Civil Liberties: Freedoms protected by a government.

Due Process: A civil liberty that guarantees access to a free and impartial trial and the presumption of innocence until guilt is proven.

Geneva Conventions: A series of treaties that set out international standards for humanitarian issues in warfare, including the treatment of enemy combatants.

Writ of Habeas Corpus: A court order that requires authorities to produce prisoners in their custody and justify continued imprisonment.

History

The detainment of enemy combatants is a common phenomenon during wartime, and their status and treatment has varied historically. Since War World II, the international community has paid greater attention to their individual rights and has attempted to institute universal standards for dealing with them. The status of enemy combatants who have been captured in the “war on terror” is partly based on precedent, but the legal maneuvering and lack of transparency on the part of a democratic country—the United States—is unique.

The administration of US President George W. Bush evolved a complex legal framework to deal with enemy combatants; as pressure mounted against this framework, it underwent further evolutions. The framework was partially derived from several legal precedents. During War World II, the Supreme Court decided in Ex parte Quirin (1942) that eight Germans who had been declared unlawful enemy combatants would not be granted the trial by jury for which they had petitioned, but would instead be tried by a military tribunal. The Supreme Court of the time argued that its decision was in accordance with the contemporary Articles of War.

Another significant legal precedent is In re Territo (1946), in which it was decided that a captured US citizen who had been serving in the Italian army should be denied habeas corpus. The argument behind the decision was that the prisoner's possession of US citizenship did not alter his status as an enemy combatant.

The legal framework is further bolstered by Article II of the US Constitution as well as resolutions passed by Congress after the 2001 terrorist attacks. The Authorization for Use of Military Force reaffirmed the president's wide powers to detain enemy combatants. Subsequently, President George W. Bush issued a military order which gave a provisional definition of enemy combatant. It came to include members of the Taliban, al-Qaeda, or any affiliated groups who plot or commit hostile acts against the United States or coalition forces. This military order also established special military tribunals for the handling of enemy combatants.

Since members of al-Qaeda and other terrorist organizations are not government-aligned soldiers, their fighters are considered unlawful. The Taliban were also given this designation because, though they had been in power in Afghanistan, that country was considered a failed state.

The United States is a signatory of the Geneva Conventions, of which there have been four, and has made them military regulation. These conventions extend international law to prisoners of war and govern their treatment in custody and their legal rights. However, beginning in 2001, the United States argued that enemy combatants were not prisoners of war and would not be granted the conventions' legal rights. According to the administration, enemy combatants would still be treated humanely. However, critics argued that the use of psychological and physical torture at Guantanamo and other detention facilities, including so-called "black sites" operated around the world by the Central Intelligence Agency (CIA), amounted to a violation of international law by the United States government.

The Bush administration argued that its treatment of enemy combatants was based on legal precedent and resolutions passed by Congress. Moreover, it contended that the war against terrorism was unprecedented. According to the Bush administration, the scope and seriousness of the “war on terror” made it necessary to employ new legal paradigms to deal with the threats. As such, it held that the Geneva Conventions were outmoded in some respects and would prevent the United States from effectively countering terrorism. Therefore, full legal rights of enemy combatants cannot be accorded because they may compromise the war efforts. Enemy combatants may provide information that could forestall or prevent terrorist attacks, and they may also return to fight once released. They may have the chance to pass off messages to enemy forces if they are allowed civil trials. In short, they represent a threat to national security.

Human rights groups and legal authorities who oppose the current manner of detainment and treatment of enemy combatants have argued that the US government does not have the legal authority to rewrite national or international law and is in direct contravention of both the US Constitution and the Geneva Conventions. Not only have enemy combatants been denied due process, some of them have been subjected to torture and others have been killed in custody; still others have been wrongfully imprisoned. Such violations have occurred because their status as enemy combatants does not allow for adequate oversight of their legal status or oversight of the conditions of their detention. Finally, opponents have challenged the notion that enemy combatants can be held indefinitely without justification.

The legal framework that the Bush administration created has been challenged in several important cases. In Rasul v. Bush (2004), the Supreme Court ruled that the US judicial system had jurisdiction over enemy combatants who are not US citizens. In response to this ruling, however, Congress passed the Detainee Treatment Act. The act stated that detainees (particularly those held at the Guantánamo Naval Base in Cuba) did not have the right to file habeas corpus petitions and courts did not have the right to hear the petitions.

Hamdi v. Rumsfeld (2004) pertained to a Saudi American citizen who was captured in Afghanistan and declared an unlawful enemy combatant. The US government did not charge him, give any indication of how long he would be held, or grant him due process. The Supreme Court decision upheld the government's right to detain enemy combatants but also ruled that it had to allow Hamdi an impartial judicial proceeding. A deal was later struck in which Hamdi gave up his US citizenship and was returned to Saudi Arabia.

In Hamdan v. Rumsfeld (2006), the Supreme Court challenged the Detainee Treatment Act by ruling that the government's military tribunals set up to try some enemy combatants were in violation of the Uniform Code of Military Justice and the Geneva Conventions. The government countered with the Military Commissions Act, which denies detainees habeas corpus, allows for indefinite detainment, and upholds the right of the United States to operate secret military prisons and try detainees at military tribunals.

In the meantime, the war on terrorism continued. The administration of US President Barack Obama maintained wide executive powers as far as they pertained to enemy combatants, despite legal challenges. While the Obama administration stopped using the term “enemy combatant,” the status of many of these detained people remained largely unchanged. An undisclosed number of enemy combatants remain in US custody for undetermined periods and with undetermined futures. Of these, Obama inherited about 242 Guantánamo detainees from the George W. Bush administration.

Enemy Combatants Today

As part of the effort to close Guantánamo, which Obama had vowed to accomplish from the beginning of his presidency in 2009, efforts began in 2015 to research sites within the United States for the possible relocation of many of the prisoners still detained in the facility. While those considered most dangerous would be transferred to the United States, the rest of the prisoners would be sent back to their home countries or other receptive nations. In June, the United States announced the transfer of six Yemeni prisoners from Guantánamo to Oman as part of this plan. However, in order to detain the prisoners on US soil, the administration unsuccessfully attempted to convince Congress to rescind the existing statute that bars such a transfer. Nevertheless, Congress was notified in October that Pentagon officials would be traveling to Colorado to visit and assess the Federal Bureau of Prisons facility in Florence as a potential relocation site. Officials had also been sent to Kentucky and South Carolina to investigate the use of top-security facilities in those states. Several representatives in those states expressed concern over the security threat that such a move could impose upon residents. Ultimately, no Guantánamo detainees were transferred to facilities in the United States under Obama, who conceded that he would not be able to close the prison entirely before leaving office in 2017, although a total of 197 detainees were released during his two terms.

In contrast to President Obama, then presidential candidate Donald J. Trump pledged to keep Guantánamo open during his 2016 campaign. As president-elect, Trump criticized the release of detainees, tweeting, “There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.” In September 2017, forty-one detainees were still being held at Guantánamo.

By the 2020s debate over the status of enemy combatants was affected by a number of military developments abroad. In 2018, Jim Mattis, who was serving as US secretary of defense at that time, stated that the US military no longer considered terrorism its top priority. While the US maintained a military presence throughout the Middle East and periodically engaged in combat with groups such as the Islamic State of Iraq and Syria (ISIS), most US troops left Iraq by 2011 and the country withdrew all of its remaining forces from Afghanistan in August 2021 when the Taliban recaptured the country nearly twenty years after being toppled from power following the US invasion. The US government and military, meanwhile, shifting much of its attention toward responding to the actions of countries such as Russia and China.

Although the US no longer considered international terrorism to be as big of a priority as it did earlier in the century, the status of people detained during the war on terror, particularly the individuals still held at Guantánamo Bay, continued to provoke debate. During his presidency Trump signed an executive order keeping the facility open indefinitely.

Despite various efforts or proposals to close the facility, the prison remained open well into the 2020s during the presidency of Trump's successor, Joe Biden, although several detainees were transferred out or repatriated to other countries. The human rights abuses, included torture, carried out at the facility earlier in the century, as well as the fact that some Guantánamo detainees were held without being charged with any specific crimes, led to ongoing domestic and international criticism of the US government. At that time the trials of a number of Guantánamo detainees were ongoing, although in at least one case—the trial of Abd al-Rahim al-Nashiri, who had allegedly planned the USS Cole bombing in 2000—a judge ordered testimony to be thrown out since it was collected during torture.

In May 2024 a total of thirty men were still being held in the US military prison at Guantánamo Bay. While some of these men had been approved for transfers or release, a number of delays were reported in this process. A major issue related to the release of these men was where they would be repatriated to, as some countries were hesitant to accept them.

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