Volume 43 | Number 1 Fall 2007
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II. Evolution of the Procedures and Parameters of Unlawful Enemy Combatantcy
Both the process through which an individual is labeled an unlawful enemy combatant and the definition of the term have changed several times since 2001. In the early post-2001 cases, the President asserted that “multiple layers” of executive branch review constituted the only process necessary for determining enemy combatant status.4 This vaguely described intra-branch review does not follow the procedures set out for determining combatant status by the Third Geneva Convention, which requires determination in contested cases be made by a “competent tribunal.”5 In Hamdi, the Supreme Court did not explicitly mandate that the Geneva Convention process be followed, but a plurality of the Court found that, at least for U.S. citizens, an alleged unlawful enemy combatant “must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”6
After the Hamdi and Rasul decisions, the Department of Defense instituted the Combatant Status Review Tribunals (CSRTs) at Guantánamo Bay, Cuba that today serve as the primary mechanism for determining unlawful enemy combatant status. In the CSRT process, a panel of three U.S. military officers, not otherwise involved in the apprehension or detention of the alleged combatant, determines whether the detainee meets the definition of unlawful enemy combatant given in the CSRT policy.7 In this process, the detainee is provided a “personal representative,” but not a lawyer. The detainee may—but need not—participate in the hearing.
Although the President established the CSRT process without input from the legislative branch, Congress twice gave its implicit blessing to the CSRT scheme: once in the Detainee Treatment Act of 2005 (DTA) and again in the Military Commissions Act of 2006 (MCA). In each act, Congress determined that individuals who had appeared before a CSRT would have more limited appellate and habeas review than they would otherwise have received following the Supreme Court’s Rasul decision.8 In addition, Congress made few amendments to the pre-existing CSRT process, although it did insert a rule on the consideration of new evidence and regulated the use of statements derived from coercive tactics.9 Interestingly, neither the DTA nor the MCA provides that CSRTs constitute the exclusive method for determination of enemy combatant status,10 and it is unclear what rights, if any, individuals declared enemy combatants pursuant to some other process currently possess in the U.S. system.11
While procedural protections surrounding the unlawful enemy combatant designation are important, it is in the debate over the definition of the concept itself that the tensions underlying the term are most apparent. Although the label has roots in some writing on the law of war, the phrase “unlawful enemy combatant” does not constitute a term of art in the mainstream law of war.12 It does not appear, for example, in any of the major law of war treaties. Indeed, the drafters of the Geneva Conventions in 1949 and the Additional Protocols in 1977 consciously declined to “create a third status or class of persons known as ‘unlawful combatants’” in the treaties.13
The Bush Administration, however, chose an alternative conception of detainees in the war on terrorism, labeling all involved “unlawful enemy combatants.” The use of this term by the Administration after 2001 is undoubtedly due to the 1942 Quirin case, in which the Supreme Court endorsed the use of military commissions to try seven individuals accused of spying on behalf of Germany.14 Perhaps the Administration also sought to maintain its ability to target with military force individuals who would be classified as civilians under the Geneva Convention approach but could arguably be described as “unlawful enemy combatants” under Quirin.
In fact, one of the attractions of Quirin for an Administration intent on preserving flexibility was that the case did not actually define the contours of the “unlawful enemy combatant” category. The closest the Court got to a general explanation of unlawful enemy combatant status was phrased solely in consequential terms. It stated “[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”15 In Quirin, the Court determined that the petitioners were properly found to have been unlawful combatants because they had entered the United States, acting under the direction of the armed forces of the enemy, for the purpose of destroying property used in prosecuting the war, and did not wear a uniform.16 Given that the Court assumed that all the petitioners were actual members of the German army, the decision to treat them as combatants seems unproblematic.
Like Quirin, Hamdi was an easy case from the perspective of the threshold issue of the definition of enemy combatant. Northern Alliance forces were “engaged in battle” with the Taliban when Hamdi’s Taliban unit surrendered. Hamdi himself was allegedly carrying a Kalishnikov assault rifle at the time of his surrender. Hamdi’s direct participation in hostilities at the time of his capture deprived him of civilian status under the Geneva Conventions. Indeed, in its decision, the Court repeatedly emphasized Hamdi’s direct participation in hostilities on a foreign battlefield.17
The Hamdi plurality, therefore, did not need to confront the potentially wide gulf between the Geneva Conventions approach and that of the Administration’s use of the term “unlawful enemy combatant.” The plurality declined to provide much content to the category, simply noting that “[t]here is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such.”18 It ultimately crafted its own definition for purposes of the case and limited its decision to individuals “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States.”19 Other parts of the opinion are even narrower, seeming to limit the definition of enemy combatant to individuals who fought against the United States in Afghanistan.20 The Supreme Court has not, to date, revisited the concept of unlawful enemy combatants, leaving its further development up to the lower courts, the President, and Congress.
The CSRT procedure promulgated by the Executive Branch in 2004 following the Hamdi and Rasul decisions constituted the Administration’s first official definition of the concept of unlawful enemy combatant. The CSRT policy declares an unlawful enemy combatant to be someone who “was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”21 This definition, while clearly based on the formulation used in Hamdi, represents a potentially significant expansion of the concept because of its reference to forces “associated” with al Qaeda. In addition, it explicitly includes—but does not limit the definition to—anyone who has “committed a belligerent act” or who has “directly supported hostilities in aid of enemy forces” without further defining the key criteria of belligerent act, direct support, or hostilities.
In litigation over enemy combatants, the Executive branch has gone significantly further. As one court observed,
counsel for the [United States] argued that the Executive has the authority to detain the following individuals until the conclusion of the war on terrorism: “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities,” a person who teaches English to the son of an al Qaeda member, and a journalist who knows the location of Osama Bin Laden but refuses to disclose it to protect her source.22
The court in that case concluded that the sweeping scope of the Executive Branch’s definition of enemy combatant may constitute a violation of the due process clause of the U.S. Constitution.23
Until the passage of the Military Commission Act, Congress had not weighed in on the proper scope of the definition of unlawful combatant, other than its oblique affirmation of the CSRT process in the DTA. As ultimately enacted into law, the MCA provides the broadest formal definition of unlawful enemy combatant to date. In fact, the Act effectively provides two definitions: one substantive and one process-based.
The term ‘unlawful enemy combatant’ means—
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its cobelligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.24
The MCA’s definition of “lawful enemy combatant” is loosely based on the definition of prisoners of war used by the Third Geneva Convention. The changes made to the treaty text in the MCA seem clearly designed to ensure that the Taliban forces would not qualify for lawful enemy combatant status, even though they have a strong claim to prisoner-of-war status under the text of the Third Geneva Convention itself.25
That the MCA definition of unlawful enemy combatant represents a significant expansion—even over the broad definition used by the CSRTs—is self-evident. It includes anyone who has “purposefully and materially supported hostilities against the United States or its co-belligerents” and anyone found before, on, or after the date of enactment of the MCA (which seems to cover all the relevant temporal territory) to be an unlawful enemy by any “competent tribunal” established by the Department of Defense or the President.26 The phrase “competent tribunal” is not otherwise defined, but explicitly extends beyond CSRTs. The reference to “material support” is particularly intriguing because it has no precedent in the international law of war but does have a close analogue to a provision of the U.S. federal criminal code. This definition requires a high mental state and perhaps some causal relationship—requiring that the individual have purposely supported hostilities and that this support be “material.”27
Interestingly, the MCA’s definition of unlawful enemy combatant fluctuated dramatically in the drafts of the MCA considered by the Congress between the first, presented by Senator Frist, on September 9 and the bill’s passage on September 29. Frist’s version would have defined an unlawful enemy combatant as anyone “part of or affiliated with . . . any international terrorist organization, or associated forces—engaged in hostilities against the United States or its co-belligerents; in violation of the law of war;” anyone who “committed a hostile act in aid of such a force or organization so engaged;” or anyone who “supported hostilities in aid of such a force or organization so engaged.”28 This definition, encompassing anyone who is merely “affiliated” with a terrorist organization or any “associated forces,” constitutes the broadest of all the definitions contemplated by the Congress and did not ultimately survive the debate. It also does not include the language about material support, which is such a striking feature of the final legislation.
The version introduced on behalf of the Senate Armed Services Committee, described as the “compromise bill” in the debate, would have defined unlawful enemy combatant as “an individual engaged in hostilities against the United States who is not a lawful enemy combatant.”29 In this bill, “lawful enemy combatant” is defined in the terms used in the MCA as ultimately enacted. The definition of unlawful enemy combatant in the compromise bill, while not conforming precisely to the international law definition provided by the Geneva Conventions, is the closest to the international law standard of all the formulations formally considered by the Congress. The compromise bill was apparently scuppered at the behest of the White House.30
The earliest version of the material support language appears to be in the bill introduced in the House by Representative Duncan on September 25, 2006, just four days before the bill’s final passage.31 The debate in the House gives little indication about why the material support language was added. Press reports indicate that the broader definition was viewed as necessary to ensure that Hamdan, the subject of the Supreme Court litigation striking down the original military commissions, could be tried by the new commissions, as well as detainees accused of making bombs.32
Admittedly, the relevance of the MCA’s definition of unlawful enemy combatant is uncertain. The MCA itself provides that its definitions apply “in this chapter” and presumably the Executive is free to argue for an alternative meaning in contexts other than the military commissions themselves. Nevertheless, as the only formulation to have the imprimatur of both the President and the Congress, the definition of unlawful enemy combatant used in the MCA will no doubt be influential in future litigation over the treatment of detainees in the war on terrorism.
It is possible that the definition of unlawful enemy combatant may change yet again. There will doubtless be further litigation in the courts on the propriety of the term as used in the CSRTs and in the MCA. Congress may also amend the MCA. Immediately after the November 2006 elections, Senator Dodd introduced a bill that would define unlawful enemy combatant as “an individual who directly participates in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant.”33 This definition is the narrowest of those to date (with the exception of the definition used by the plurality decision in Hamdi) and the closest to the framework used in the Geneva Conventions.
This history demonstrates the shifting understandings of the category of unlawful enemy combatant in the United States—particularly since 2001. While many legal and political cross-currents have produced this turbulence, this essay argues that two are particularly noteworthy: the tensions between law and crime in the war on terrorism and the conflicts between international law principles and domestic law exigencies.