What was the legal authority for creating the "enemy combatant" classification?

Shortly after U.S. troops got into Afghanistan, the Administration announced that suspected terrorists if captured would be treated as “enemy combatants” – meaning, they would have neither the legal protections of criminal defendants (whether U.S. citizens or noncitizens) under American law, nor the legal protections of prisoners of war under international law.

Leaving aside the question of the wisdom or justice of this decision, I see no legal authority for it. Such a momentous innovation should have required an act of Congress, and/or renegotiation of the Geneva Conventions on POW treatment. Neither happened. What exactly was the Administration’s legal rationale for creating a whole new, unprecedented, and legally unprotected category of government detainee? And does anyone on this board care to defend, or refute, that rationale?

The term wasn’t completely made up out of whole cloth by the Bush administration. It originally came from the SCOTUS decision in Ex Parte Quirin, 317 U.S. 1 (1942). The case case held that eight Nazi saboteurs who were captured in the United States could lawfully be tried by military tribunal, and that they were not entitled to relief under a writ of habeas corpus.

The current adminstation’s take on the status of enemy combatants under Ex parte Quirin:

From William J. Haynes II, General Counsel of the Department of Defense.

I have yet to hear a valid reason for this, mostly it has been “because we can” or “because Bush said so”.

In my opinion, if we’re at “War” with terror, and these folks were Terrorists, then they are Prisoners Of War.

The dumbest excuse I’ve heard (over and over) is “How do you think they would have treated our prisoners?” Of course, because all the rules must be lowered to the lowest common denominator… :smack:

We’re at war with terror the same way we’re at war with drugs. It’s a rhetorical device, not a legal status.

Here is the Geneva Convention regarding the treatment of prisoners of war. The convention document also defines what a prisoner of war is. The problem comes up when you’re dealing with those people who don’t fit the definition of prisoner of war, which is the case of a lot of those people defined as “unlawful enemy combatants” by the government.


And is there anything in that opinion stating that such “unlawful combatants” have no right to counsel even with respect to their trials before military tribunals, no right of access to counsel before trial, and no right to a speedy trial?

Gee . . . that would mean “indefinitely,” wouldn’t it? Since it would be hard to define a point at which the War on Terror will actually be over . . .

“Although the President’s determination on this issue is final”? Where did this guy go to law school?

US Army regulation 190-8 section 1-5 (large PDF - see especially pages 2 & 33) states categorically that anyone captured by US forces is given PoW status until a competent authority (1-6) decides otherwise.

The US has not sought fit to weasel out of applying this for the past 60 years. It concerns me that they see fit to now.

What I just can’t figure out . . . Why are they doing this? I think these men have been rightless prisoners long enough to be squeezed for all the intel they’ve got in their heads, so what’s the point of keeping them incommunicado any longer? Is this just a pure power trip? Or is the Admin or the DOD or the CIA afraid of what would happen if they accorded these detainees their customary protections as POWs, or their rights of due process as criminal suspects? If so, what?