ENEMY COMBATANT
Captured fighter in a war who is not entitled to
prisoner of war status because he or she does not
meet the definition of a lawful combatant as estab-
lished by the GENEVA CONVENTION; a saboteur.
The U.S. war against TERRORISM that began
after the SEPTEMBER 11, 2001, ATTACKS led to the
invasion of Afghanistan, the toppling of the Tal-
iban regime, and the aggressive dismantling of
al-Qaeda terrorist strongholds within that coun-
try. Although many Taliban soldiers were
released after the conclusion of the conflict, the
United States took into custody over five hun-
dred individuals they labeled enemy combatants.
This designation, which is also referred to as
unlawful combatants, gives detainees fewer
rights than those conferred on prisoners of war
by the Third Geneva Convention (1949).
According to the articles of the convention, a
lawful combatant must be part of an organized
command structure; wear openly visible
emblems to identify themselves as non-civilians;
carry arms out in the open; and respect the
RULES OF WAR, which would include not taking
hostages. President GEORGE W. BUSH and his
administration maintained that the five hun-
dred detainees did not meet these criteria.
Therefore, they could be tried for crimes by mil-
itary tribunals; moreover, the individuals could
be held incommunicado for as long as the war
lasted, with no access to the U.S. legal system.
The confinement of these prisoners at Camp X-
Ray at the U.S. naval base in Guantanamo Bay,
Cuba, raised questions about the U.S. govern-
ment’s interpretation of enemy combatant sta-
tus. The fact that two detainees were U.S. citi-
zens complicated matters, as both sought to use
the U.S. courts to gain their freedom.
During the last months of 2001, the United
States took into custody suspected al-Qaeda ter-
rorists. These detainees included Afghan nation-
als, Pakistanis, Saudis, Yemenis, and others from
different parts of the world.Members of the U.S.
military screened and interrogated detainees to
identify persons who might be prosecuted or
detained, or who might have useful information
about the terrorist network. In January 2002, 482
of these detainees were flown to Cuba,where they
were incarcerated at Camp X-Ray. The conditions
were at best spartan, which drew criticism from
HUMAN RIGHTS organizations. Over time the
United States upgraded the facilities and by early
2003, a small number of detainees had been
returned to their country of origin, having satis-
fied U.S. officials that they had no terrorist ties.
One detainee, Yaser Esam Hamdi, informed
his captors that he had been born in the United
States before his family returned to the Middle
East. This information led the U.S. military to
transfer Hamdi from Camp X-Ray to the Nor-
folk, Virginia, Naval Station in early 2002. His
father filed a HABEAS CORPUS petition (a legal
writ that requires a person be brought before a
court) in the U.S. District Court of Virginia,
demanding that the government release his son.
The district court judge ruled that Hamdi had
the right to see an attorney, and the court
appointed a public defender to represent him.
The DEFENSE DEPARTMENT,however,chal-
lenged the ruling, declaring that Hamdi, as an
enemy combatant, did not have the RIGHT TO
COUNSEL. The Fourth U.S. Circuit Court of
Appeals agreed and reversed the order. Never-
theless, the district court still raised doubts
whether Hamdi, as a U.S. citizen, could be held
as an enemy combatant. The Fourth Circuit
finally settled the matter in Hamdi v. Rumsfeld,
316 F.3d 450 (4th Cir. 2003), when it ruled that
a U.S. citizen captured with enemy forces during
a combat operation in a foreign country could
be held as an enemy combatant.
Another detainee raised objections in federal
court about his enemy combatant status. In May
2002, Jose Padilla, a U.S. citizen, was arrested in
Chicago as he disembarked from a flight from
Pakistan. Attorney General JOHN ASHCROFT
announced that Padilla was a “dirty bomber,” an
al-Qaeda terrorist trained to make and explode
142 ENEMY COMBATANT
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Editiona low-grade nuclear device. He was arrested
under a judicial warrant, which made it neces-
sary for him to make a court appearance. A
lawyer was appointed to represent Padilla, but
then the U.S. government changed its mind. It
informed the judge that Padilla had been classi-
fied as an enemy combatant in a military order
signed by President Bush. Confined to military
custody in a South Carolina brig, Padilla’s
requests to see his lawyer were refused. This led
to a series of hearings and orders in which the
U.S. district court judge in New York urged the
government to relent and let Padilla consult
with his attorney. In December 2002, the judge
issued an order directing the government to
allow attorney visits (Padilla ex rel, Newman v.
Bush, 233 F.Supp.2d 564 [S.D.N.Y.2002]). The
government continued to object, leading the
judge, in April 2003, to finalize his order so the
