The phrase "enemy combatant" is not explicitly defined anywhere in any existing legislation
passed by the government of the United States of America
, nor in any international
agreements regarding the treatment of prisoners of war
. Despite this, the executive branch
of the Unites States government has used this phrase in at least two cases
to justify suspending certain rights that would normally be guaranteed under the American constitution
. Included among these is the right not to be held unless charged with a specific crime, and then not without adequate preliminary evidence to support the charge.
The government's use of the term "enemy combatant" may be a reference to the case ex parte Quirin, which dealt with enemy soldiers commiting acts of sabotage out of uniform in World War II (it was also in this case that the Court made a distinction between lawful and unlawful combatants)1. However, if the aim this wording was to establish a solid precedent in jurisprudence for the otherwise unlawful detention of American citizens suspected of having connections with terrorist organizations, it failed (a very thorough writeup on the case in which the "enemy combatant" rationale was rejected can be found here). At the moment, given this latest ruling, the government's actions in suspending the rights of certain of its citizens can only be described as illegitimate (as well as more than a little disquieting).
1From the Preliminary Report of the American Bar Association Task Force on the Treatment of Enemy Combatants, available at http://www.abanet.org/leadership/enemy_combatants.pdf
Oolong says re enemy combatant: Well said... might be worth mentioning that they've used it to justify suspending rights afforded by the Geneva Convention, not just the US Constitution...? (The cases mentioned above where people have been detained as "enemy combatants" have both involved U.S. citizens. Those prisoners that are being deprived of rights guaranteed under the Geneva Convention are being detained as unlawful combatants (see Gherebi v. Bush)).
eliserh says re enemy combatant : Good summary. A couple of points worth noting: (1) even though almost no one mentions this, Padilla isn't the first case in which the military has sought to detain a citizen claiming that he was working with the enemy. In the 1812 War, where we were actually under invasion and there was actual evidence of plotting, the courts unanimously rejected the Bush administration's very claim. Another thing to keep in mind is that 'unlawful combatant' has no more legal meaning than 'enemy combatant'. 'Unlawful combatants' existed under the old Hague convention, but the status was abolished by the 1949 Geneva conventions.