Question is in three parts about enemy combatants:

First an enemy combatant is Definition link: Council on Foreign Relations:

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.”

“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).

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.

Historically, what due process rights are afforded enemy combatants under military tribunals? Please explore the reasons why enemy combatants are differently categorized and treated than United States domestic criminals in the answer.

Second, has the War on Terror expanded or diluted those due process rights? Relatively recent changes to the case law, military code of conduct or other source material can be explored.

Have the terrorist enemy combatants at GITMO been afforded these due process rights? Who's left at GITMO?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Nov 29 '16 at 19:19
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    Furthermore, this question is asking roughly 5 questions, a couple of which are fairly open-ended, so I'm closing this as too broad – Sam I am says Reinstate Monica Nov 29 '16 at 19:21
  • @AndrewMattson, no it's been around since the Revolutionary War – K Dog Nov 29 '16 at 23:05
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    I moved my comment to chat – PoloHoleSet Nov 29 '16 at 23:19

Has the War on Terror expanded or diluted those due process rights?


In the wake of the 9/11 attacks, the United States Congress passed the Authorization for Use of Military Force Against Terrorists, wherein the War Powers Resolution was invoked.

The administration chose to call those who it detained under the Presidential Military Orders "enemy combatants". The Bush administration began using the term in March 2002.

So clearly, the definition has changed. For a start, the whole concept of the "War on Terrorism" is very different to a traditional war. They're fighting against an idea, a concept - a set of ideals. Not a nation state.

According to Lietzau, America was detaining people not because they were criminals, but because they were the enemy. Since then, the administration has formalised its usage of the term by using it specifically for detained alleged members and supporters of al-Qaida or the Taliban.

And now it means a suspect of terrorism, not a citizen of a state. Of course, this is because any citizen of any country can be a terrorist.

Have the terrorist enemy combatants at Guantanamo bay been afforded these due process rights?

Yes, they have been given all the rights they are legally entitled to. Morally, I'd argue that they have not been given what they should; for example a fair trial. Also, how do you know that all the detainees are terrorists?

But I'm going to use the case study of Shaker Aamer. He's a Syrian, who is allowed to live in the United Kingdom through his marriage. This is taken from the BBC article about his release. I'll let you make up your mind whether or not this is a fair treatment of any human.

Shaker Aamer, 46, has been in the military prison in Cuba since 2002 and has never been charged or been on trial.

Since 2007 he has been cleared for release twice, by US presidents George W Bush and Barack Obama.

"In terms of next steps, we understand that the US government has notified Congress of this decision and once that notice period has been concluded, Mr Aamer will be returned to the UK."

Mr Aamer was detained in Afghanistan in 2001. US authorities allege he had led a unit of Taliban fighters and had met former al-Qaeda leader Osama Bin Laden. But Mr Aamer has maintained he was in Afghanistan with his family doing charity work.

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  • "Well, considering US law effectively gives enemy combatants no rights, the answer is yes, they have been given all the rights they are legally entitled to". This is what we call a baseless, and especially this case, easily disprovable assumption. – K Dog Nov 29 '16 at 19:19
  • @KDog please disprove it. – Tim Nov 29 '16 at 19:21
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    @KDog Urgh. You want to think the treatment of the people there is fair, you do so. You're not going to change your mind. Shaker Aamer was detained for 13 years. He has a family, and he was never charged with anything, or given a trial. Is that morally right? – Tim Nov 29 '16 at 19:23
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    Let us continue this discussion in chat. – K Dog Nov 29 '16 at 19:34
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    I upvoted for the history on Aamer which is illustrative of a GITMO prisoner that was not afforded the rights set up for his class of detainee. – K Dog Nov 29 '16 at 19:55

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