LAWFUL?:

WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS: The Status Of Detained Al Qaeda And Taliban Fighters (MICHAEL C. DORF, Jan. 23, 2002, FindLaw)

The Administration's objection to affording al Qaeda and Taliban captives prisoner-of-war status probably has less to do with the conditions in which the captives are held than with what the Administration plans to do with them in the long term.

Under President Bush's military order of November 13, al Qaeda members and those who harbored them can be tried by military tribunals. The Supreme Court approved the use of such tribunals for unlawful combatants in the 1942 case of Ex Parte Quirin.

Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.

Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially.

Does the Guantanamo Detention Moot the Issue?

To be sure, American courts might not have occasion to decide the question whether al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts.

Accordingly, so long as the al Qaeda and Taliban fighters are held at Guantanamo Bay and thus not deemed to have entered the U.S., their only route of appeal would appear to be within the Executive Branch. Put more bluntly, they will have only the procedural recourse the Administration allows them. [...]

As we have seen, the contention that these fighters are unlawful combatants is based upon a plausible reading of the Geneva Convention. Indeed, it would be difficult to come to any other conclusion when applying the Geneva Convention's four-part test to al Qaeda fighters.

Nevertheless, treating the al Qaeda and Taliban captives as prisoners of war, whether or not they are legally entitled to the status, would be less risky than it may at first appear. So long as al Qaeda and its deadly ideology exists, we cannot say that there has been, in the words of the Geneva Convention, a "cessation of active hostilities," entitling the captives to be released. In that respect, as in others, this is a different type of war indeed.

We should treat them with the same care and respect they showed when they captured our CIA guys in Afghanistan and Daniel Pearl in Pakistan.

Posted by Orrin Judd at December 7, 2003 9:21 AM