Chasing 'Enemy Combatants' and Circumventing International Law: A License for Sanctioned Abuse

Abstract

In 1944, in Korematsu v. United States, the Supreme Court made a major error in judgment. It ruled that the executive may forcibly remove over 110,000 Japanese Americans from their homes and relocate them in American detention camps. In two recent Supreme Court cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the court made similar errors in judgment by accepting the administration's term "enemy combatant." The Supreme Court's errors were compounded when Congress passed the Military Commissions Act of 2006 in October, 2006, statutorily defining the term enemy combatant for the first time. By acknowledging the term enemy combatant, the court and the Congress gave this and future administrations permission to deprive people of their recognized rights and protections.

Enemy combatant did not and does not exist under international law. Enemy combatant was nothing more than a generic term until February 2002, when the administration imbued it with a new and particular meaning that was designed to circumvent the Geneva Conventions and international human rights laws. In using the term, officials in the administration cited to a 1942 Supreme Court case, Ex Parte Quirin, although the administration's reliance on Quirin is flawed.

This article focuses on the specific evolution and chronology of the term enemy combatant and the administration's inconsistent definitions, beginning with the introduction of the term in 2002. It reviews letters and memoranda issued by Pentagon Counsel William Haynes Jr., documents and publications issued by the Department of Defense and reports, orders and statements released by the administration. It argues that the Supreme Court had the opportunity to make a significant constitutional impact on the legitimacy and application of the term enemy combatant in both Hamdi and Hamdan, but failed to do so. The article also analyzes the new definition in the Military Commissions Act of 2006.

The creation of the term enemy combatant was not an accident. What could be more convenient for the administration than to create a term that circumvents international law, shields the administration's treatment of detainees and deliberately confuses issues? In addition, the term enemy combatant was intended, in part, to shelter individual members of the administration from being charged with war crimes.

How could this happen in our American system of government? How did the administration succeed in patently ignoring international and American constitutional law, norms and standards? This article is a cautionary tale. Even if everything was righted today, we still must look back at how an executive deliberately disregarded existing law and treated enemy combatants with cruelty and, at times, with inhumanity.

Keywords: enemy combatant, Quirin, Guantanamo, detainee, lawful combatant, unlawful combatant, prisoner of war, POW, executive power, military commissions, combatant status review tribunal, war crimes act, Padilla, Hamdi, Hamdan, Geneva Convention, MCA '06, al Marri