Volume 43 | Number 1 Fall 2007
Page 2 of 5
« First
<
1
2
3
4
>
Last »
I. Introduction
The assignment of unlawful enemy combatant status plunges an individual into a legal limbo relieved by few rights. Although the exact range of rights under U.S. law likely depends on citizenship and place of detention,1 the Supreme Court has stated that all unlawful enemy combatants may, at a minimum, (1) be detained until the end of the conflict,2 and (2) be punished for crimes associated with having taken up arms.3 Given the uncertain duration of the war against terrorism, identification as an unlawful enemy combatant could amount to a sentence of lengthy—perhaps life—imprisonment.
This essay examines the concept of unlawful enemy combatant as it has developed in the United States since 2001. It argues that the idea of enemy combatant oscillates uneasily between the poles of war and crime and international and domestic law. These tensions have resulted in a concept whose plasticity renders it unhelpful as a tool for legal regulation and whose indeterminacy vests vast discretion in the Executive.
The essay is divided into two parts. The first examines the history of the use of the term in the United States and the evolution of the legal process that accompanies an unlawful enemy combatant determination. The second considers the fractures between the law of war and the law of crime and between international and domestic law that have marked these developments.