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" 28 U.S.C. [section] 2241-(3). Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 277-78 (1990) (Kennedy, J., concurring), and cases cited therein (Katyal, p. 1365)."
The Bush Administration says that the detainees pose a threat to the United States, and the detainees are complicit either in the September 11, 2001 attack against the United States; or that they took part in separate but no less equally threatening plots to commit acts of terrorism and make war on the United States. Early in 2002 when the detainees were being transported to Guantanamo Bay, the Bush Administration did not suffer a lot of negative feedback. As time passed, however, and when it became apparent that the status of the detainees could remain undefined indefinitely, criticism began being fired at the administration.
Enemy Combatants
The term "enemy combatant," evolved and took on a definition when one of the detainees being held at Guantanamo Bay was identified as being an American citizen (Anderson, James B., 2005, p. 689). The American, Yaser Esman Hamdi, is an American citizen by birth, and was captured by the Northern Alliance in Afghanistan, in 2001 (Anderson, p. 689). In 2002, Hamdi's father filed a petition for writ of habeas corpus on behalf of his son, seeking to avail his son of his Constitutional rights (Anderson, p. 689). By the time the writ of habeas corpus had been filed, Yaser Hamdi had been moved from Guantanamo Bay, to Norfolk, Virginia, and finally to a Navy installation in Charleston, South Carolina (Anderson, p. 689). The petition alleged that Hamdi had been held, imprisoned, without being formally charged of a crime, and without access to legal representation or due process (Anderson, p. 689). The District court ordered that Hamdi be assigned counsel, which counsel would have unlimited access to the prisoner (Anderson, p. 689).
The Government appealed the order, and the Fourth Circuit reversed the District Court ruling for counsel (Anderson, p. 689). However, the Government made a "declaration," which has subsequently become known as the "Mobbs...
689). The declaration detailed Hamdi's travels to Afghanistan, where the younger Hamdi trained with the Taliban to act on their behalf as a terrorist against the United States (Anderson, p. 689).
Mobbs was successful, and the based on the declaration, Hamdi was identified as an "enemy combatant (Anderson, p. 689)."
The Fourth Circuit denied a rehearing en banc by a vote of eight-to-two. (74) Hamdi then filed a petition for certiorari with the United States Supreme Court, which was granted. (75) Some time after the grant of certiorari, Hamdi was allowed to meet for consultations with court-appointed counsel several times, including unmonitored visits (Anderson, p. 689)."
However, the term "enemy combatant," came to be the term by which the detainees at Guantanamo were held without due process, without access to legal representation, and without being charged.
References
http://www.questia.com/PM.qst?a=o&d=5010850505
Anderson, J.B. (2005). Hamdi V. Rumsfeld: Judicious Balancing at the Intersection of the Executive's Power to Detain and the Citizen-Detainee's Right to Due Process. Journal of Criminal Law and Criminology, 95(3), 689+. Retrieved August 22, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=5010850505
Fogarty, G.P. (2005). Is Guantanamo Bay Undermining the Global War on Terror?. Parameters, 35(3), 54+. Retrieved August 22, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=5011210670
Katyal, N. (2007). Equality in the War on Terror. Stanford Law Review, 59(5), 1365+. Retrieved August 22, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=5020807469
Troops Search Site for Dead Al Qaeda; Taliban Foreign Minister Surrenders. (2002, February 9). The Washington Times, p. A01. Retrieved August 22, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=5000706935
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