enemy combatants & terrorist trials

Issue in Brief

what's up

The war on terror gave rise to a new kind of foe - the "enemy combatant." Not quite prisoners of war, but not run-of-the-mill criminals either, these "enemies" are being held in a legal limbo state - mostly at Guantanamo - that's caused strains in international relations and at-home politics.

The central debate about combatants iwas inititially over the kind of trials and due process rights they are entitled to, but word of actions in Gitmo and at secret prisons have also kicked up a debate over torture.

Lawmakers tried to settle the trial issue by passing legislation in October 2006, but they left a trail of legal wrinkles in their wake. Not only were civil libertarians dissatisfied with the new rules for combatant tribunals, they also didn't like the fuzzy line the Bush administration drew between legit interrogation methods and torture - or the fact that enemy combatants lost their right to habeas corpus (that is, the right to go to court).

Today the battle lingers on in the courts, but the Obama administration has slightly shifted the debate. As almost his first act in office, Obama signed executive orders to close Gitmo within a year and end the CIA's special prerogative for "enhanced" interrogation techniques (although the CIA may end up getting another "protocol"). As part of the executive orders, a panel was set up to figure out what to do with the detainees who are too dangerous to be set free but who can't be tried in court (because of flimsy or tainted evidence) - and how to handle future detainees thought to be terrorists. The original plan was to have Congress weigh in on any major changes, particularly those made to the tribunal system. But lawmakers are not looking eager to get prisoners out of Gitmo, so some shifts may end up being made by executive order (WP, NYT). Meanwhile, the administration has asked for a hold on Gitmo trials, which all but one judge has agreed to abide by (NYT). (NYT, WP, WSJ, NYT, NYT, WSJ, NYT, WP, NYT)

Most of the primer below covers the actions and debates during the Bush
administration - with some updates under the Obama administration. 

what is an enemy combatant

We wish we could give you a universal definition in law - either in US or international law, but none exists. The term was used in a widely cited 1942 case, Ex Parte Quirin, that talked about the difference between lawful enemy combatants (in uniform, fighting for another nation at war) and unlawful enemy combatants (not in uniform and not necessarily fighting for another country at war). After 9/11, President Bush picked up the term to classify terrorists who were allegedly fighting against the US. The Bush administration's definition has morphed somewhat since then (SHU), finally classifying an enemy combatant at Guantanamo, as:

an individual 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 purposefully and materially supported hostilities in aid of enemy armed forces. (DOD - pdf)

the enemy combatant conveyor belt

Starting in 2004, the government set up a couple of processes to make sure that the guys they were holding in Gitmo were, indeed, enemy combatants and that they were worth holding on to. In the Combatant Status Review process, the government looks at evidence to see if the detainees fall into the definition of enemy combatant listed above. In yearly Detainee Administration Reviews, the government looked at whether it makes sense to keep holding prisoners - specifically seeing if they continue to pose an alleged threat to the US and/or they continue to have any "intelligence value." Civil libertarians have a hefty handful of gripes with these processes, which cJ won't go into here, for space reasons alone. (DOD - pdf) Under Obama, it looks like all 250 remaining detainees in Gitmo will get one final review - and either be released, sent to trial or - for those too dangerous to go free but who don't have a decent case against them - ... well no one knows yet. The new administration is setting up a panel to figure that out.

the tribunal debate

Although only 20 - 65* Guantanamo prisoners are up for trial, the administration received a lot of flak over the military commissions they originally set up to try them. In the summer of 2006, the Supreme Court came down - in Hamdan v. Rumsfeld - saying the Gitmo tribunals were unconstitutional and that the administration either had to get the tribunals looking more like courts-martial (used for prisoners of war) or go to Congress and ask for permission to set the tribunals up differently. Bush took option two - and sent Congress a proposal for revamping the enemy combatant tribunals. Congress passed a bill in September 2006 similar to the president's request.

While there's general agreement that enemy combatants don't necessarily have all the same rights to a fair trial as do regular alleged criminals or prisoners of war, critics do say there are some minimum standards to create a fair trial - and that the administration's military commissions fell short on some of those basic requirements.

The chief shortcoming of the military tribunals, critics said, was the denial of the accused's ability to see the evidence against him (Congress' final bill reversed the president's request and gave the accused this right). Also problematic was the use of "hearsay" (that is, second-hand testimony), which is a no-no in usual court proceedings (Congress' bill allows hearsay).

The Bush administration argued that it has to keep some evidence secret from from the terrorists it's trying, in case - as may happen - they fail to convict a terrorist, who then rides free with a bunch of classified information in his head. It also says that hearsay is necessary, because it'd be impossible to round up first-hand witnesses from around the world to provide direct testimony.

At the heart of the debate is what each side says will make America safer. The Bush administration would argue it's safer to assure the conviction of terrorists and make sure those who don't get convicted don't also have access to classified information. Those in favor of "fairer" trials say instead that America's security interests are served better by upholding international norms of liberty, giving us more power to fight for those liberties in the rest of the world (especially when our troops get into enemy hands).

*The other 700 or so prisoners have either been released back to their home countries (about 300) or are on indefinite detention (430). (CFR and AP)

Bush's proposed tribunals

After Hamdan, Bush sent Congress proposed guidelines for Gitmo's tribunals that differed slightly from the tribunals' previous set-up (WH and WP). In the new plan, eligible prisoners would be tried in front of a jury of five military officers (for non-death penalty cases) or twelve officers (for death penalty cases), with a presiding officer who has legal training sitting in as a sort-of judge. Enemy combatants could be tried for one of 27 different crimes including terrorism, conspiracy, hostage-taking, torture, rape and hijacking. The trials would allow classified evidence - which the defendant and his lawyer would not be able to see - to be entered in as evidence. Hearsay would also be admissible.

the House and Senate bill

the trials: The final bill passed by Congress in September, 2006, gave defendants the right to see the evidence against them, but still allowed hearsay to be used as evidence. Other provisions in the bill allow confessions made under "coercion" to be used as evidence if the judge thinks the confession is reliable; trials can be closed for security reasons; proof must be beyond a reasonable doubt; there's no right to a speedy trial; defendants must accept military lawyers; panels (a jury of military personnel) don't have to be unanimous to convict (except when there's a death sentence). (LAT, WP, WP) A military manual spelling out the new tribunal rules was published in January 2007 (WP)

more enemies: The bill also expands the definition of an enemy combatant to someone who not only "directly" but also "purposefully and materially" supported anti-US hostilities. (LAT, WP, WP)

kiss your habeas corpus...: What made the biggest legal waves was a part of the bill that nixed the right to "habeas corpus" (which gives prisoners the power to contest their detention in court). The new law said enemy combatants can only appeal to federal courts after their tribunal is over and once they've appealed to a military court (LAT, WP, WP). Detainees' lawyers quickly went to the federal courts to scrap the new appeals rule, calling it unconstitutional (WP & WP). Two years later, the Supreme Court ruled in their favor, giving detainees the right to file habeas corpus in court (WP) - which they quickly started doing (WP). The first detainees were released in habeas proceedings by federal court in December '08 (NYT), but the judge in that case denied other detainees the right to spring only a few weeks later (NYT). The House and Senate have had bills in the works in '07 and '08 to bring habeas corpus rights back to detainees, but so far they haven't made much headway. (WP, WP, WP)

torture too: The other area that created ripples is the question of interrogation techniques - and when they cross the line into torture. Early reports in the dailies were decidedly fuzzy on this account, saying both that Congress' bill keeps the administration to Geneva standards, at the same time suggesting there still could be wiggle room giving interrogators the green light to torture (WP, WP, NYT). A later WaPo article explains that while military interrogation guidelines are pretty kosher with Geneva, the '06 Military Commissions act gave the CIA wider latitude in defining its own "enhanced interrogation techniques" that still kept within Geneva's non-"humiliating and degrading treatment" guidelines.

The Bush administration came out with its detailed guidelines on what those "enhanced interrogation techniques" could be in July '07; they are, of course, top secret - but public statements lead the dailies to believe that while some bad stuff is out (like water boarding) the CIA can still can still push the torture envelop. (WP & NYT) Congressional hearings with the attorney general and head of the CIA in early '08 suggest that while water-boarding (the technique most in question) hasn't been used since 2003, the administration isn't 100% ruling out that it'll use it again. (WP) Letters from the Justice Department, released in April '08, make it even clearer that the CIA still has some leeway to buck Geneva Conventions during interrogations (WP & NYT). While the Bush administration for a long time never stated that it participated in torture, in the administration's outgoing weeks admitted that, at least in the case of one detainee, it did exactly that. (WP)

Congress tried to limit the CIA's interrogation options - to those covered in the military's manual - through legislation. The House passed a measure in December '07 (WP), with the Senate following in February '08 (WP); but their anti-torture hopes were dashed by a presidential veto which they couldn't overturn (WP & AP).

With the incoming Obama administration, civil libertarians are hopeful that the torture issue will be put to rest; the new administration issued an executive order ending the CIA's special interrogation status along with some of the most controversial interrogation techniques, particularly waterboarding. After releasing Bush-era legal memos that spelled out the limits of "interrogation" (including waterboarding), the new administration left open the question of whether any CIA operatives could be prosecuted for over-stepping the law (WP). At the same time Obama has left a wriggle room for the CIA which could get a new "protocol" on torture, which is as yet undetermined. (NYT, WP, WSJ, WP, NYT)

More on Hamdan

The Supreme Court case that nixed the administration's tribunals looked at a web of laws and court cases. cJ gives its usual caveat of "we ain't no lawyers!" before we give you this brief tour of the laws that lead to the decision...

The Geneva Conventions set the international standards for treatment of prisoners of war, including how they are tried. Although it's generally agreed that the US doesn't have to follow the Geneva Conventions (Congress can vote not to), many argue that it's in our best interest to do so (so we can demand that Americans are given the same rights if/when they are captured abroad). The Supreme Court decided that the Geneva Conventions couldn't be ignored, only because US law currently says they need to be adhered to.

The Uniform Code of Military Justice (passed in 1950 and updated a few times since), spells out the procedures - from arrest to sentencing - for dealing with offences in the military and during times of war. The Supreme Court, in Hamdan, mostly used the UCMJ as its basis for saying the administration's tribunal were illegal.

The Authorization to Use Military Force (passed September, 2001), gives the president power to use force to fight terrorists responsible for 9/11 - but how much power has been a source of disagreement among lawmakers. The administration has argued the AUMF gave the president power large leeway to do what he can to fight terrorism - including setting up the military tribunals.

The president's Military Order (November, 2001) is what set up the military commissions to try enemy combatants; it's been fleshed out and updated by a string of memos and orders from the Department of Defense.

Rasul v. Bush (2004) is the Supreme Court decision that said the courts had the power to hear "habeas corpus" petitions from Guantanamo prisoners - that is, gitmo detainees could go to court to contest their detainment.

Detainee Treatment Act (2005) was passed by Congress to say that, no, the courts did not have the power to hear habeas corpus petitions from Gitmo.

Hamdan v. Rumsfeld (2006) basically said the Detainee Treatment Act couldn't cut the courts out of ruling on the tribunal issue and that the AUMF didn't give the president power on his own to make up new tribunal rules. Instead, the Supremes said that the enemy combatants do have rights both under the Geneva Conventions (through US law) and that their trials have to comply - sort of - with courts-martial proceedings under the Uniform Code of Military Justice. The "sort of" of the courts decision says that although the president does have leeway to fudge the tribunal rules, he didn't justify why his rules - particularly around evidence - diverged so far from courts-martial rules.

so who's going to trial anyway - and when

As of July 25, 2006, according to the Congressional Research Service, 20 Guantanamo prisoners were eligible to be charged and tried by the military commissions; the Council on Foreign Relations put the number at 64 detainees being considered for trial; military officials in January 2007 said 60-80 detainees will get a trial (WP). Bush has also stated that he wants to try the 14 prisoners recently moved to Guantanamo from secret prisons abroad (WP). Trials got kicked off in March, 2007 (WP).

All trials got put on hold in June 2007 when a tribunal judge - no joke - said two detainees couldn't be tried since they were only classified as "enemy combatants" and not "unlawful enemy combatants" through the Combatant Status Reviews. That decision got overruled in September 2007, putting the trials back on track (NYT).

The latest delay came in May 2008 when a military judge put the first trial on hold until the Supreme Court gives out its second decision on the rights of enemy combatants (see habeas corpus above). (NYT) That decision was made in June and, although the Supremes have ruled that enemy combatants can contest their detention in federal court, the administration is going ahead with the tribunals on its roster (NYT).

Awesome resource heads-up: The Washington Post keeps a pretty comprehensive timeline, list of known detainees and charges here.

who's at Gitmo - and who has left

Using government documents from Combatant Status Reviews, a Seton Hall law professor looked at where the Gitmo prisoners came from and their level of association with terrorist groups, among other interesting tidbits. See Report on Guantanamo Detainees (pdf).

The number of Gitmo prisoners peaked in 2002 with over 600 detainees. That number has dwindled down to 250 by the beginning of 2009. Globalsecurity.org offers the play by play on where the detainees all went.

In June 2008, when the Washington Post put the current number of Gitmo detainees at 270, 65 were slated for release, 80 were in line for trial and 125, we guess, were still in legal no man's land. (WP)

Gitmo could be phased out in '09: President Obama issued an executive order to close the prison as soon as all its detainees can be moved abroad or outright released. Plans to move some of the detainees to American soil were kiboshed by almost universal political NIMBYism (WP). While Obama hoped to close down Gitmo by the end of his first year (WSJ, NYT), challenges with relocating inmates and bringing them to trial are making that goal look increasingly difficult (WP).

other "enemy combatants"

The prisoners at Gitmo weren't the only enemy combatants around. Two were held in the US as enemy combatants until being charged under the federal court system - Padilla (who was eventually sentenced to 17 years in prison) and al-Marri (who was formally charged in early '09). A third enemy combatant on US soil, Hamdi, was released and returned to his native Saudi Arabia (WP & NYT, WP).

the "secret prisoners"

If you think it's bad being an "enemy combatant," be happy you're not a "secret prisoner." About 100 prisoners since 9/11 have been held separate from the enemy combatants at Gitmo, in conditions and for reasons that were, well, "secret" - the idea being that they were serious high-ups in terrorist networks and that the CIA needed a freer hand to pry intelligence out of them. The last of these prisoners came in out of the cold in September 2006 (WP) - or, at least, that's what was thought: human rights groups say they think there are 39 prisoners being secretly held as of June 2007 (NYT). The Washington Post offers up a kaleidscopic picture of the network of prisons and their prisoners - from what little is known about either.

Some random opinions

  • a pro-civil-liberties analysis from the NY Times.

  • The Washington Post editors like the president's recent moves toward greater civil liberties, but still think he falls way short

  • A Harvard and a U. of Chicago professor argue that detainees should not be tried at all

  • The Wall Street Journal editors argue there are internationally acceptable ways to make the tribunals fair and safe.

updated July 7, 2009

Did we miss something, let some slant slip in, lose a link - or do you just have something to say? Drop a line below! In the spirit of open dialogue, cJ asks you keep it civil, keep it real and keep it focused on the message, not the messenger. See our policy page for more on what that all means.

talker's picture

the last word - until the next word

kristenparker22 - Maybe a real constitutional authority will weigh in here, but in the meantime this is my understanding:

First off, the Supremes are planning to look at MCA and habeas corpus this fall and very well may rule MCA unconstitutional and award habeas corpus back to Gitmo prisoners.

Even with that said - yeah, it's confusing how the Supremes can say something is unconstitutional and then have Congress turn around and seemingly defy them. I'm guessing what happened is that when Hamdan v. Rumsfeld said the Detainee Treatment Act couldn't cut the courts out of reviewing detainees cases, they probably left a vague loophole that MCA took advantage of.

This happens a lot - when the Supremes make the "final call" on something, they're often actually punting the issue back to Congress saying "the law you've written doesn't fit with the constitution - but you can try again to write something that does fit." Often it's a matter of wording - or legal finessing. Of course, if some lawyers think the new law also is unconstitutional, it may just wend its way back to the Supremes as MCA has.

My bad for not knowing how the Detainee Treatment Act differs from the Military Commissions Act on the habeas corpus front - but maybe I - or you - will find time to snoop around and figure it out.

talker | October 8, 2007 - 9:38am

Doesn't the Supreme Court have the last word?


I'm very confused . . . it seems like the Supreme Court and Congress are not on the same page on this issue. Didn't the Supreme Court rule that Gitmo detainees have the right to have their cases heard in federal courts? How is it, then, that the Military Commissions Act could strip detainees of their right of habeaus corpus? If that is in fact the case, then why hasn't the Supreme Court ruled the MCA unconstitutional? Clarification from someone well-informed would be much appreciated. When it comes to something this fundamental, I don't understand how our government can not have a uniform policy.

kristinparker22 | October 8, 2007 - 1:59am