Enemy combatant

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The phrase enemy combatant was "invented" by the US Supreme Court in the 1942 ruling "Ex Parte Quirin".

Enemy Combatants & habeas corpus

"Sen. Lindsey Graham (R-S.C.) sponsored an Amendment to the defense appropriations bill pending in the Senate (S. 1042) that would strip those designated by the Administration as enemy combatants of the ability to seek habeas review in federal courts. This is an end-run around the Supreme Court's decision in Rasul v. Bush which held Guantanamo detainees have the right to challenge the legality of their detentions," Talk Left reported November 9, 2005.

"According to Graham's talking points for the bill" (which Talk Left received via e-mail), "his amendment would prohibit detainees from using the court to challenge": (as stated)

  • The legality of their detentions
  • The propriety of returning detainees to their home countries
  • Adequacy of medical care at Guantanamo
  • Quality of the food
  • Speed of mail delivery
  • Allotment of exercise time and other conditions of confinement

"This would effectively end all litigation brought on behalf of the detainees at Guantanamo Bay, as well as any future litigation on behalf of those imprisoned at the CIA secret detention camps. This bill is intended to have retroactive application," Talk Left wrote.

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As defined by President Franklin D Roosevelt's proclamation number 2561, this definition applied to

all persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war....

... and Application

The power of the President to declare enemy combatants was not used until the aftermath of September 11, 2001. Once determined by the president to be an enemy combatant, persons may be held indefinitely and are subject to the jursidiction of military tribunals. Appeals or privilege to access to civilian courts is only granted to enemy combatants with the approval of both the Attorney General and Secretary of Defense.

Although the power to declare enemy combatants was upheld by the Supreme Court in 1942, it is currently under review (as of May 2004) and the future of this authority is unknown.

"It is the President of the United States who designates people as Enemy Combatants on information passed to him via the military or intelligence agencies. There is no right to appeal such a decision and no one is allowed to see the evidence for the designation. In effect it gives the President the power to indefinitely detain any US citizen without trial, charge or an explanation."

Source: adequacy.org.

Rationale for Use by Bush Administration

In his February 24, 2004, "Remarks" before the American Bar Association Standing Committee on Law and National Security, Alberto R. Gonzales, Counsel to President Bush, said:

"Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be 'guilty' of anything; they are detained simply by virtue of their status as enemy combatants in war. This detention is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing enemy combatants from continuing their attacks. Thus, the terminology that many in the press use to describe the situation of these combatants is routinely filled with misplaced concepts. To state repeatedly that detainees are being held without 'charge' mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court and states in prior wars have generally not done so."

Against "Terrorists"

Michael Isikoff and Mask Hosenball wrote in their April 21, 2004, Newsweek article "The Enemy Within. How the Pentagon considered extending its controversial enemy combatant label in a bid to prove links between Iraq and Al Qaeda"

"In the run-up to the war on Iraq," Deputy Secretary of Defense Paul Wolfowitz "pushed a highly unorthodox plan to deploy one of the U.S. government's most controversial legal tactics--the designation of suspected terrorists as enemy combatants--in hopes of finding new evidence of alleged connections between Saddam Hussein's regime and Al Qaeda.
"The proposal ... called for President George W. Bush to declare Ramzi Yousef, the convicted mastermind of the 1993 World Trade Center bombing, as an enemy combatant in the war on terror. This would have allowed Yousef to be transferred from his cell at the U.S. Bureau of Prison's 'supermax' penitentiary in Florence, Colo., to a U.S. military installation," they write.
It was Wolfowitz's contention, they inform, that "U.S. military interrogators--unencumbered by the presence of Yousef's defense lawyer--might be able to get the inmate to confess what he and the lawyer have steadfastly denied: that he was actually an Iraqi intelligence agent dispatched by Saddam to blow up the World Trade Center in 1993 as revenge for the first Persian Gulf War."
Isikoff and Hornball state that the "previously unreported Wolfowitz proposal--and the high-level consideration it got within the Justice Department--sheds new light on the Bush administration's willingness to expand its use of enemy-combatant declarations inside the United States beyond the three alleged terrorists, two of them American citizens, who have already been designated [as enemy combatants] by the White House."
Additionally, they write, it "underscores the persistence with which Wolfowitz and his allies within the Pentagon pursued efforts to uncover evidence of links between Saddam's government and Al Qaeda--a key, and still disputed, element in the Bush administration's case for war."
Isikoff and Hornball also point to Washington Post reporter Bob Woodward's new Plan of Attack (2004 book) in which "Woodward writes that at a Camp David meeting shortly after September 11, 2001, Wolfowitz, who was pushing for an immediate invasion of Iraq, 'estimated that there was a 10 to 50 percent chance Saddam was involved in the 9/11 attacks--an odd conclusion that reflected deep suspicion but no real evidence.'"
In spite of the fact that "President Bush has since acknowledged there is no evidence of any Iraqi involvement in September 11, ... administration officials, including Vice President Dick Cheney, continue to assert that there is abundant evidence of past Iraqi support for terrorism, including possibly the 1993 World Trade Center bombing."


  • Jennifer K. Elsea, "Detention of American Citizens," Congressional Record Service, updated March 15, 2004: "While the Fourth Circuit Court of Appeals has agreed with the Bush Administration that Congress authorized such detentions in its authorization for the President to use force against those he determines are responsible for the September 11, 2001, attacks on the United States, the Second Circuit recently held that Congress has not authorized such detentions. The Supreme Court has granted certiorari in both cases and will hear them together on April 28, 2004."

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