There are two important cases running through the Federal courts regarding indefinite detention of US citizens labelled by the US Government as “enemy combatants.” These are pretty important cases, since there is a serious concern that the ability of the government to indefinitely detain, without counsel or judicial review, an individual simply by calling them an “enemy combatant” is subject to terrible abuse.
One of these cases, Hamdi, just got an appeals court decision that favored the US government position — in this case, that there is no inherent judicial oversight for the military detention of a US citizen captured “in a zone of active combat in a foreign theater of conflict.”
Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [broadly outlining the executive branch’s findings and conclusions about Hamdi] is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition.
While this is potentially open to abuse, the basics of it are actually pretty reasonable. If you’re fighting in a combat zone on the opposite site, and are captured by US troops, you can expect to cool your heels indefinitely in a military prison like any other POW.
A good summary of the court’s findings can be found here (and above).
The court did not address the issues that will come up in the Padilla case. In fact, they intentionally avoided it.
We have no occasion . . . to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us — that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces.
Padilla was picked up in the US, accused of being a terrorist planning an attack, and thus an “enemy combatant,” and slapped into a military brig indefinitely like a POW.
The Padilla case is far more disturbing. The Executive Branch claims that a determination of “enemy combatant” can be made by the President about any US citizen, in any circumstance, and that determination removes from them any protection of due process, counsel, etc.
In other words, if the President took it into his head to name me as an “enemy combatant,” I could be thrown in the cooler forever, with no lawyer, no right of habeus corpus, nothing.
We have seen that unfettered domestic police power (e.g., the FBI in the 60s) can lead to significant human rights abuses. “Enemies lists” and “lists of subversives” are prone to not only error, but malice.
It seems to me that if the Administration view on Padilla is upheld, it is a terrible, terrible loophole that, sooner or later, will be abused, possibly widely abused. That’s independent of whether Padilla himself is guilty as sin or innocent as pure-driven snow. It’s even independent of whether you think the current Administration is the Antichrist Incarnate or the Noble Defenders of Virtue.
In the words of Lyndon Johnson, himself no piker as to law-making or executive power:
You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.
I don’t have a big problem with the Hamdi ruling, as stated. I have a much bigger problem if the same ruling is made on Padilla.
One minor correction Dave. There are no POW’s, just Enemy Combatant’s. Enemy Combatant is a catch all to cover anyone you do not want to be given protection under the Geneva Convention. Anybody bearing arms, or is a threat against your armed forces, but is not a member of, belonging to, or not in the Uniform of some recognized nation states armed forces.
Examples: The NVA was a recognized military, but not in a recognized war. No protection under the Geneva Convention. The U.S. Military was also a recognized military, but not in a recognized war. No protection under the Geneva Convention. The VC were not a recognized military and not in uniform. No protection under the Geneva Convention.
Technically, any current member of say ALF, ELF, Earth First!, or PETA would be considered to be an Enemy Combatant. These people are also subject to assassination without trial or any of that other legal mumbo jumbo.
Which is even scarier; I was reading up on the definition of enemy combatant the other day and shook my head with the implications.
I wouldn’t want ANY president to have this authority; not Bubba, not the Shrub. It’s above and beyond what this nation is supposedly built on.
I was using “POW” in a loose, not technical, sense.
The legal definition of “enemy combatant” or “unlawful combatant” is provided, I think, in the Haupt case (Ex Parte Quirin, 317 U.S. 1 (1942)). In that case, the Supremes said that such individuals, US citizens or not, did not have normal Constitutional protections.
I don’t have a problem with the current treatment of enemy combatants. I do have a problem with lack of any judicial overview of how folks are identified as enemy combatants. I don’t know that Haupt addressed that, since the facts of the capture and the purpose for which the individuals were in the US were not disputed.
The problem comes down to this. We can point to cases on either extreme and have a good feel for how things should be handled. On a field of battle, we don’t require soldiers to get indictments and jury decisions against the folks they are shooting at. Folks who are captured on the field of battle — whether POWs or “enemy combatants” — are also a pretty clear case, hence my lack of apprehension about Hamdi (or Haupt).
On the other, I don’t think most folks would reasonably say that someone who says that George Bush is acting precipitously against Iraq should be identified as an enemy combatant.
It’s everything in-between that’s up for grabs, whether it’s a known al-Qa’eda leader riding in a car in Yemen, an alleged (but unsubstantiated) al-Qa’eda agent who is a US citizen arriving in the US, or someone who belongs to the organizations Boulder Dude mentions above.
My concern is that if those decisions can be made unilaterally, by a single branch of government, in secret, without any judicial overview, there is no drawing of the line, no legal guarantee that the extreme case of innocense noted above could not be identified as an enemy combatant, based on “secret evidence,” and locked away.
Not a Good Thing.
Can someone please tell me what is the definition of “illegal combatants”?
Can someone please tell me what is the definition of “illegal combatants”?
Assuming it’s the same as “unlawful combatant,” it’s described in the Haupt case, cited above.
Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
Or, Anybody the victor says is an “unlawful combatant”…
Pragmatically, probably. But I’m enough of an idealist to think not.
There’s a pretty big difference between ‘enemy combatant’ and ‘unlawful combatant’. An ‘enemy combatant’ is anyone on the opposing side who has the right to be a combatant as defined in Protocol I additional to the Geneva Conventions – any member of the armed forces, including attached paramilitaries, resistance forces etc. A combatant is automatically entitled to POW status if captured, unless he/she has violated the rules governing their combatant status (not carrying arms openly at the point of attack) , in which case they forfeit their right to POW status, but shall be given protections equivalent to those accorded to POWs.
An ‘unlawful combatant’ is an invented term and bad law. The use of it in Ex Parte Quirin was in very different circumstances (1942) and it was used to designate spies; it also attracted hefty criticism at the time. It was also qualified by the comment ‘until a more complete set of the laws of war has been drawn up’. It has – the Geneva Conventions and their Protocols. Under those Protocols, there is no such thing as an unlawful or illegal combatant. The term ‘combatant’ is itself a term which assumes legality. If you’re a combatant, you’re allowed to be one. if you’re not a combatant, but are acting like one (ie. taking part in hostilities) then you are a criminal and can be detained and tried as such – in a civil court. There is no such thing in current law as an ‘unlawful combatant’.
The reasons the Bush administration has decided to adopt this made-up category are threefold: 1) They haven’t ratified Protocol 1, though they have signed it, which technically ought to prevent them from doing most of what they’re doing. 2) They deny that Protocol 1 is not customary law which binds them despite non-ratification, a view disagreed with by a large number of lawyers. And 3), the key bit – you can’t prosecute a POW for the fact of fighting. If you don’t give someone POW status, and you call him an ‘unlawful combatant’ then hopefully you can prosecute him just for having fought against you.
Gosh, that was a bit of a rant. Sorry about that.