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.
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 Guant&namo 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." 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. …