Originally posted by AThousandYoung
Every time I see the phrase "enemy combatants" there's an "unlawful" in front of it.
Enemy Combatants
Author:
William Haynes
December 12, 2002
Council on Foreign Relations
MEMORANDUM
To: Members of the ASIL-CFR Roundtable
From: William J. Haynes II, General Counsel of the Department of Defense
Subject: Enemy Combatants
There is no doubt that the attacks of September 11, 2001 constituted acts of war. They possessed the intensity and scale of war. They involved at least one military target, the Pentagon, and they came on the heels of a decade of attacks by al Qaida on U.S. military and civilian targets. Congress on September 18, 2001 authorized the President to use force in response to the attacks.
And both the United Nations and NATO recognized that the attacks were “armed attacks” within the meaning of the UN Charter and NATO treaty. Since September 11th (and perhaps before then), we have been at war – both legally and in fact.
War implicates legal powers and rules that are not available during peacetime. Among other things, the war context gives the President the authority to detain enemy combatants at least until hostilities cease.
Enemy Combatant
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): “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.”
“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.
The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination.