Wartime Detention of Enemy Combatants: What If There Were a War and No One Could Be Detained without an Attorney?
Hemingway, Thomas L., Denver Journal of International Law and Policy
On September 11, 2001, two aircraft hijacked by members of al Qaeda slammed into the World Trade Center in New York City. A third hijacked airliner hit the Pentagon, and a fourth plunged into a field in Pennsylvania after passengers attempted to regain control of the aircraft. Nearly 3000 innocent civilians were killed.
In the wake of this unprecedented attack, Congress reacted swiftly and issued the "Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States" (hereinafter AUMF) on September 18, 2001. (1) This resolution states, in part, that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." (2) Soon after this resolution, U.S. and coalition forces commenced operations in Afghanistan against Taliban and al Qaeda forces, fighting non-traditional enemies in a decidedly new kind of war. Unlike in past wars, these enemies were not state actors, nor did they abide by the rules traditionally followed in war by combatants. This new kind of war also required a new approach to enemies captured and those who committed violations of the law of war.
President Bush responded to this new paradigm by issuing a Presidential Military Order in November 2001 authorizing the Department of Defense to establish military commissions to bring to justice those non-citizen members of al Qaeda and other terrorist organizations that threaten the security of America and its allies. (3) This Presidential Military Order marked the first time since World War II that the President authorized military commissions to try enemy combatants for violations of the law of war. (4) The Presidential Military Order, [section] 2, defined those subject to the order as:
[A]ny individual who is not a United States citizen with respect to whom [the President] determine(s) from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaeda; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (5)
Separate from the Order establishing Military Commissions, the administration embarked on a policy affecting the detention of certain enemy combatants. The AUMF authorized the President to detain enemy combatants engaged in hostilities against America. An "enemy combatant" is defined as:
[A]n 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 directly supported hostilities in aid of enemy armed forces. (6)
The Department of Defense chose to detain at Guantanamo Bay, Cuba, (GTMO) some of these captured belligerents, not as criminals, but to prevent them from rejoining hostilities. Currently, over 500 enemy combatants are detained by the Department of Defense at GTMO. (7) The President has determined that a small subset of these detainees will face trial by Military Commissions for violations of the laws of war, a distinct set of offenses separate from traditional civilian offenses. …