# What was the legal authority for creating the "enemy combatant" classification?
**URL:** https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197
**Category:** Great Debates
**Created:** [August 3, 2004, 9:31pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197 "2004-08-03T21:31:01Z")
**Posts on this page:** 7
**Page:** 1
### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [August 3, 2004, 9:31pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/1 "2004-08-03T21:31:01Z")
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?
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [August 3, 2004, 10:05pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/2 "2004-08-03T22:05:11Z")
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).](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=317&invol=1) 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.
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> [T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful 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. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
The current adminstation’s take on the status of enemy combatants under _Ex parte Quirin_:
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> 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.”
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> “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 treatment accorded to unlawful combatants is discussed below).
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> 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.
From [William J. Haynes II, General Counsel of the Department of Defense](http://www.cfr.org/publication.php?id=5312).
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### Author:  [@CyberHippy](https://boards.straightdope.com/u/CyberHippy)
#### Post date: [August 3, 2004, 10:08pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/3 "2004-08-03T22:08:31Z")
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:
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [August 3, 2004, 10:32pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/4 "2004-08-03T22:32:36Z")
> [@CyberHippy](#):
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> In my opinion, if we’re at “War” with terror, and these folks were Terrorists, then they are Prisoners Of War.
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.
[http://www.unhchr.ch/html/menu3/b/91.htm](http://www.unhchr.ch/html/menu3/b/91.htm)
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### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [August 3, 2004, 10:39pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/5 "2004-08-03T22:39:42Z")
> [@](#):
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> 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.
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?
> [@](#):
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> An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict.
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**. . .
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> Although the President’s determination on this issue is final, courts have concurred with his determination.
“Although the President’s determination on this issue is final”? Where did this guy go to law school?
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### Author:  [@SentientMeat](https://boards.straightdope.com/u/SentientMeat)
#### Post date: [August 5, 2004, 10:45am UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/6 "2004-08-05T10:45:32Z")
[US Army regulation 190-8 section 1-5](http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf) (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.
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### Author:  [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)
#### Post date: [August 5, 2004, 2:39pm UTC](https://boards.straightdope.com/t/what-was-the-legal-authority-for-creating-the-enemy-combatant-classification/258197/7 "2004-08-05T14:39:24Z")
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?