Do Enemy Combatants Have Any Rights?

Do Enemy Combatants Have Any Rights? John Whitehead discusses America's legal role in processing enemy combatants and the importance of setting the right example for the world.

Category:

People & Blogs

Tags:

• enemy
• combatants
• United
• States
• military
• habeas
• corpus

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How ridiculous has the judicial intrusion on military action become? today a federal judge ruled that terrorists captured on foreign battlefields and held by the military should have access to American courts. Not only does that arrogantly assume American sovereignty over Afghanistan, but it also violates the Geneva Convention:

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The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan. Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

[chopngratty]

A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan. U.S. District Judge John Bates turned down the United States motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.

[chopngratty]

With respect to individuals captured in the United States, to date DoD has detained only Abdullah al Muhajir, also known as Jose Padilla. The President, as Commander in Chief, determined that Mr. Padilla is an enemy combatant.

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Who Decides

The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the Presidents constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict.

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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.

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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 Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida 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 U.S. 1, 37-38 (1942):

[chopngratty]

Enemy combatant is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention