Security Detainees/Enemy Combatants

The Biggest Question That Doesn't Get Answered: What Is an Enemy Combatant?

By Gabor Rona

On December 5, the U.S. Supreme Court will hear oral arguments on the rights of Guantanamo detainees to challenge their detention. The same day, the on-again-off-again Guantanamo military commissions will be on again, to re-commence the prosecution of detainee Salim Ahmed Hamdan. Both cases will either skirt or address the fundamental question: What is an enemy combatant and who can be detained as one?

Six years on from 9/11 and after the countless number Executive Orders, Justice Department memos, legislative proposals, legal articles, lawsuits by and on behalf of detainees, political debates and other national conversations that have followed, we are still in the dark about who can be detained as an "enemy combatant." One reason for this sad and uncertain state of affairs is the lack of familiarity with, and failure to acknowledge the benefits, the limits, and often, the very existence of applicable international law rules. This essay attempts to provide a snapshot of the relevant international legal framework.

Scope of application of the term "enemy combatant"

‘Never in the history of armed conflict have enemy combatants been accorded as many rights as the U.S. grants them today,' goes the administration's mantra. The first logical assumption, then, is that the "enemy combatant" tag applies only to persons detained in conjunction with armed conflict, or war. But the U.S. does not limit its definition of enemy combatant, or for that matter, its assertion of the laws of war, to war, such as the hostilities in Afghanistan and Iraq. Rather, it claims that the laws of war, otherwise known as international humanitarian law (IHL), and thus, the right to detain "combatants," apply to all of the "global war on terror" (or "long war," or war against Al Qaeda and its supporters), whether or not manifested in armed conflict. The U.S. claims that it may avail itself of the prerogatives of the laws of war anywhere and everywhere until this "war" is won, despite that hostilities may not rise to the level of armed conflict and that neither the enemy, nor the locus of the conflict, nor the components of victory can be defined. (The U.S. has been less expansive about applying commensurate international humanitarian law obligations of humane treatment and fair trial for detainees, but that's for another day.)  

Legions of commentators have propounded, or accepted, that the post-9/11 congressional Authorization for the Use of Military Force (AUMF), the like-minded NATO invocation of its mutual assistance provisions, and Osama Bin Laden's various declarations of enmity toward the U.S. amount to proof of an armed conflict. This is a classic case of confusion between jus ad bellum (the law pertaining to the right to use force in international relations) and jus in bello (the laws applicable to conduct of war). Neither the right to use force, nor even a declaration of war, establishes the existence of war and the commensurate application of the laws of war.  Facts on the ground do. And IHL does not apply, and there are no "enemy combatants," outside of war.

International law definition and consequences of being an "enemy combatant" vs. civilian in armed conflict

Only once the fact of armed conflict is established is it appropriate and necessary to ask: "Who is an enemy combatant?" I prefer to start with the laws-of-war concept of combatant as someone who possesses a "combatant's privilege," or, something akin to a license-to-kill in war. This would include members of the armed forces. Thus, the other term flogged by the U.S. administration, "unlawful combatant," is an oxymoron, while the term "lawful combatant" is redundant. A combatant is immune from criminal responsibility for lawful acts of belligerency, but may be prosecuted for war crimes such as targeting civilians or using prohibited means of combat, such as biological weapons or rape. In turn, a combatant may be targeted and detained without charge or trial for the duration of the armed conflict.

Civilians who take part in hostilities in an armed conflict do not thereby become combatants. These "unprivileged belligerents" do not qualify for prisoner of war status upon capture. They may be targeted, and in wars between states, otherwise known as international armed conflict, civilians may be detained without charge or trial so long as they pose a serious security risk to the detaining authority. In other armed conflicts (non-international ones, be they civil wars or conflicts such as the U.S. vs. Al Qaeda - a "war" that pits a state against a trans-national, non-state armed group), civilians may be detained and tried in accordance with national law, as tempered by international human rights obligations. This national law may have extraterritorial scope, as does the U.S. War Crimes Act.

The term "enemy combatant" appears nowhere in U.S. criminal law or international law, including the law of war. Administration supporters cite the World War II era Quirin case to buttress the claim that an unprivileged belligerent is a form of enemy combatant - an unlawful combatant - but they are mistaken. That case involved combatants/privileged belligerents (members of the German armed forces) who entered the United States in civilian garb to commit acts of war. This is the war crime of perfidy. It was their specific conduct that rendered their belligerency unlawful, but they were not unprivileged belligerents. The case simply does not address, let alone decide, that an unprivileged belligerent is an unlawful combatant.

The U.S. definition of "enemy combatant"

Having failed to heed its professional military experts, the U.S. administration panicked after 9/11 and obscured the time-honored distinctions between war and its absence, and within war, between civilian and combatant. The President's Military Order of November 13, 2001 authorized detention of:

 "any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1)  there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order;"

This precursor to the U.S. definition of "enemy combatant" is tethered neither to any concept of armed conflict, nor to the meaning of "combatant" under the laws of war, nor to any semblance of due process required by the laws of war and applicable international human rights law. Subsequent efforts to pin the administration down on a reasonable and workable definition of "enemy combatant" have resembled a game of whack-a-mole and three-card-Monty combined. Thus, Justice O'Connor noted in the Hamdi case that "the Government has never provided any court with the full criteria that it uses in classifying individuals as such." Not coincident to the Supreme Court's consideration of detention challenges in Hamdi and the Rasul case in 2004, the administration arranged for Combatant Status Review Tribunals (CSRTs) at Guantanamo to determine whether a detainee is an "enemy combatant," which the CSRT rules defined as:

"an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

  Sounds better than the President's 2001 Military Order "definition," but let's look at how the administration applied it. ‘Could a little old lady in Switzerland who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists?' asked U.S. District Judge Joyce Hens Green in the In Re: Guantanamo cases in 2005. "She could," replied Deputy Associate Attorney General Brian Boyle. "Someone's intention is clearly not a factor that would disable detention." Judge Green objected to such an expansive definition of enemy combatant which includes "individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies."

Judge Green highlighted another problem with the CSRTs. Detainees are given no meaningful opportunity to contest their designation, which is potentially based on coerced evidence and often based on secret evidence not only unavailable to the detainee, but also unknown to the hearing officers, such as that the detainee "associated with" an alleged, but unnamed member of Al Qaeda. Administration supporters respond that under the Military Commissions Act (MCA), judicial review of the "enemy combatant" designation is available. They neglect to mention that the MCA carefully limits review of CSRT decisions to whether or not they conform to the rules for CSRTs and to U.S. laws and the Constitution. No mention is made of U.S. treaty obligations such as the Geneva Conventions or the prohibitions against arbitrary detention contained in the International Covenant on Civil and Political Rights (ICCPR). In the upcoming Boumediene case - a challenge to the MCA's denial of habeas corpus to detainees - the government will argue to the Supreme Court on December 5 that the CSRTs, as applied, do comply with all applicable law and rules.

Yet another flaw of the CSRTs is their failure to provide that persons who are, indeed combatants as that term is understood in the laws of war, are granted the PoW status to which they are entitled under the Third Geneva Convention.

Lost in all this is the a priori need to cabin the discussion of "enemy combatant" to situations of international armed conflict, while leaving other situations to the operation of domestic criminal law and international human rights law.

The administration's shortsighted and counterproductive motives for so broad an assertion of detention authority are twofold. One, it is to justify detention of persons for interrogation, regardless of their innocence. That this is an improper basis for detention has been recognized in several of the opinions in Hamdi, as well as by the dissenters in the Padilla case. A second motive is to obscure and deny the rights of detainees to challenge detention and to receive humane treatment and fair trials under the Geneva Conventions, where applicable, and under international human rights law.

Why wise men fear to tread on time-honored legal distinctions

Shoehorning non-fighters, let alone innocents and criminals who have no connection to armed conflict, into the definition of "enemy combatant" wreaks havoc with important, time-honored distinctions in international law. For 150 years, parties to armed conflict have been bound by an international code of conduct in warfare: the Geneva Conventions. The Conventions have been periodically amended and augmented to reflect the changing nature of warfare. It may surprise some in the administration, but not many professionals in the Pentagon and military academies, that this is not the first time ill-advised departures from humanitarian law sought justification in the claim that the old rules were "quaint" and could not be applied to the new face of war. But the growing numbers of humanitarian law rules have always remained true to the fundamental principles of that body of law: since war itself cannot be prohibited, its horrors might at least be ameliorated through rules that limit the means and methods used, that require distinction between combatants and non-combatants (civilians), and that mandate humane treatment and fair trials of detainees. Equally important has been the consensus that the laws of war apply only in and to war for many reasons having to do with the rights of those detained, but also because treating mere criminals as combatants, whether privileged or unprivileged, cloaks them with a veneer of legitimacy to which they are not entitled.

The US-manufactured definition of "unlawful enemy combatant" obscures the distinction between war and its absence and between combatants and civilians. It also seeks to deprive those to whom the label is attached of their rights under any framework of applicable international law.  In the first of a one-two punch, administrative determinations such as the president's Military Order of November 13, 2001 and legislation such as the MCA, bring within the laws of war persons whose conduct has no nexus to armed conflict, while denying them their rights under that body of law. The second punch results from the equally ill-advised U.S. position that human rights law does not apply in armed conflict, and in any case, does not apply to U.S. conduct abroad, meaning to include Guantanamo. The end result, absent correction by Congress or the courts, is to allow the U.S. a barely-limited definition of who it may detain without charge or trial in a virtually rights-free zone.

The Army's new Counterinsurgency Manual, drafted under the authority of General Petraeus, is accompanied by a Rule of Law Handbook, which states:

"In light of the need to establish legitimacy of the rule of law among the host nation's populace, conduct by U.S. forces that would be questionable under any mainstream interpretation of international human rights law is unlikely to have a place in rule of law operations."

The effort to combat terrorism and the bedrock principles served by international humanitarian and human rights law would be well served by the U.S.'s return to the mainstream concept of "combatant."