Criminals or enemies of the State?

A reflection on what ought not to be a legal difficulty

Yesterday, Dr Sherry Jarrell strayed outside her normal field of economics and voiced the feelings of an ordinary US citizen.  That is that the “underwear” bomber should be seen as a combatant, not as a common criminal.

It’s easy to share the frustration of others that someone who allegedly was committed to blowing up an American airliner was clearly behaving as an enemy of the State and, therefore, should be treated and tried in a military manner.

What is the history of such definitions as combatants?  WikiPedia provided an answer.  (NB.  Good reporting should cross-check a source with another source.  I spoke with a Barrister friend of mine and he confirmed that the entry under WikiPedia appeared to be legally correct and reliable.  Readers are asked to make up their own minds on this issue.)

Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: “Any person in an armed conflict who could be properly detained under the laws and customs of war.” In the case of a civil war or an insurrection the term “enemy state” may be replaced by the more general term “Party to the conflict” (as described in the 1949 Geneva Conventions Article 3).

All well and good. But then it gets slightly more obtuse:

In the United States the use of the phrase “enemy combatant” may also mean an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, “enemy combatant” actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. [My italics.]

Thus, the term “enemy combatant” has to be read in context to determine whether it means any combatant belonging to an enemy state, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States.

The definition of lawful or unlawful combatant goes back in the United States to 1942.

In the 1942 Supreme Court of the United States ruling Ex Parte Quirin, the Court uses the terms with their historical meanings to distinguish between unlawful combatants and lawful combatants:

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.(Emphasis added)

However, more change came along, “On March 13 2009 United States Attorney General Eric Holder issued a statement that the United States had abandoned the Bush administration term “enemy combatant”. The statement said, “As we work toward developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law.”

If there is complete clarity between the actions of a criminal and those of an enemy combatant, the general public ought to see that clarity as well.  It’s not clear that this is the case and the danger exists that the perception of a clear and impartial legal system will suffer.

By Paul Handover

6 thoughts on “Criminals or enemies of the State?

  1. As much as the Right (which seems to include Sherry) likes to criticize this decision of Obama’s, let’s remember that Bush tried the shoe bomber in civilian courts, and those courts managed to convict the shoe bomber and sentence him to life in prison. Since the real goal is to put these guys away forever, and since civilian courts seem able to do that, this shouldn’t be such a big issue. And as for interrogating Captain Underwear, the FBI has successfully obtained information from a variety of suspects, including Al Queda members, so it is false that we need to send everyone to Gitmo in order to get information out of them.

    1. That is exactly the point. Putting them away forever is NOT the goal. The overriding goal is to protect this country and its citizens from terrorism, and one of the key elements of such a national defense is gathering intelligence from every relevant source, not just “some.” How would you or anyone know before the fact that we got all the information we could or should from the particular al Queda members that we did question? Isn’t that the whole point of gathering intelligence?

      And, yes, I think that the military should have first interrogated the shoe bomber, but the Patriot Act was only about 3 months old at the time and we’ve learned something since then….at least I had hoped we had.

      Finally, just because Bush did something does not mean everyone on the Right thinks it was best or right, just like those on the Right do not think everything Obama does or says is wrong. Speaking for myself at least.

      Please see the post I am writing as a follow-up to this one — which may come out tomorrow or the next day — that discusses what the judge in the shoe bomber case has said about this latest terrorist incident.

      1. Even if we take every terror suspect to Gitmo we won’t KNOW if we got all the information we could. We can torture them to death and we won’t KNOW. By definition, we will NEVER be able to know if they have given us everything. But the FBI has proven time and again that they can get solid actionable intelligence without violating the Geneva Conventions or making it seem like we are at war with Islam, which is precisely what angers banker’s sons and Jordanian doctors so much that they want to kill Americans.

  2. You said that we didn’t need to interrogate the underwear bomber because the FBI had questioned others. I said that you don’t KNOW that you don’t need to question him until you question him. I was pointing out what I thought was an important implicit assumption underlying your comments.

    Now you are saying that it is America’s fault that terrorists want to kill us? And that treating the underwear bomber as a military combatant is a violation of the Geneva Convention, and makes us “seem that we are at war with Islam?

    I think I am as amazed at how you think as you are at how I think. This, in my view, is very interesting and important to explore. I am not confident that it will get either of us anywhere, but I think that is the point of this website, and I want to try to understand. So please correct me if I am wrong in my interpretation of your comments.


  3. Of course we need to question the underwear bomber, and nothing I said indicated otherwise. I merely pointed out the FBI could do the questioning, rather than sending him to Gitmo or a black site to let the CIA do the questioning. Nor did I say anything about blaming America for terrorism. But clearly anger at America is one of the factors that drives folks in countries like Jordan and Yemen into the arms of the hard-core terrorists, who then indoctrinate them. Reduce the anger and you reduce the number of potential terrorists. My thinking is straightforward: it follows logic rather than ideology.

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