Rights of Enemy Combatants What rights to enemy combatants have when in United States custody? What are the rules of war in that regard according to the Geneva Accords? This paper uses scholarly publications to examine the aforementioned important issues.

Clearly the U.S. attempt at the administration of justice with regard to enemy combatants -- an invented term that had no legal standing until the High Court accepted it -- has failed miserably. The image of the United States, the world's most visible democracy, has been sullied by the continuing saga of the way enemy combatants have been treated.

The rights of enemy combatant prisoners at Guantanamo

President Obama vowed during his first few days in office that he would work to close the detention facility at Guantanamo Bay within a year -- but that plan has not worked out for the president. As late as February 23, 2016, Obama has provided a blueprint to Congress to shut down the facility; he asserted that keeping Guantanamo open is contrary to American values. He added that the image of the prison tends to undermine the U.S. standing in the world (Liptak, et al., 2016). However, Obama's newest plan to move Guantanamo prisoners to Supermax prisons was verbally trashed by members of Congress; in fact Congress had previously passed a law preventing the use of U.S. funds to close the prison (Liptak, p. 2).

Meanwhile attorney David J.R. Frakt presents a compelling account of how he managed to free an enemy combatant from Guantanamo, which is worthy in pursuit of understanding military justice in this matter. Frakt writes in the Michigan State Law Review that after a decade of active duty as an officer in the Air Force -- during which he was providing legal services to the Air Force and to service members and their families -- he left active duty because of his sincere dissatisfaction over America's conduct of the war against terrorism (Frakt, 2015). In particular, Frakt was upset at the way detainees were handled at Guantanamo. The George W. Bush Administration's decision to ignore the Judge Advocate Generals' (JAGs) advice to the president to pay strict attention to the international rules -- set down in starkly clear language by the Geneva Conventions -- regarding treatment of detainees was genuinely troubling to Frakt (1601). So, Frakt joined the Air Force Reserves and went into private law practice.

Initially, after Bush announced the detainees would not be left to rot in those prison cages in Cuba, but rather be prosecuted in military tribunals, Frakt was so energized about this strategy for dealing with the detainees that he volunteered to help prosecute those individuals. However, when he saw what tactics and procedures were to be used in these tribunals, he was frankly shocked by how exceedingly unfair they seemed to be (Frakt, 1601). But that initial tribunal plan by Bush -- which Frakt called a kangaroo court -- did not pass muster with the United States Supreme Court. Indeed, the High Court decision in Hamban v. Rumsfeld forced the Bush Administration to go back to the drawing board (Frakt, 1601).

The next piece of legislation vis-a-vis detainee justice seemed to be fairer than Bush's original executive order, so Frakt volunteered to be a defense attorney; and after reporting to the Office of Chief Defense Counsel in April, 2008, Frakt was assigned to defend detainees (aka, enemy combatants) Mohammed Jawad and Ali Hamza al Bahlul. After al Bahlul demanded to be his own representative, Frakt went to work defending Mohammed, who was captured in December 2002 in Kabul after allegedly injuring three U.S. Special Forces soldiers with a hand grenade, Frakt explained on page 1602.

Frakt entered a plea of not guilty for his client (who was accused of three counts of attempted murder in violation of the law of war), which is how defense attorneys conduct their business as a matter of routine. And defense attorneys also work towards getting an acquittal for their defendants. However, the rules of the process were made quite clear by the Bush Administration, that even in the event of an acquittal the administration totally reserved the right to continue holding Mohammed at Guantanamo (Frakt, 1602). Given that set of realities, what Frakt tried to do was figure out possible pathways to get his client out of Guantanamo. He used diplomatic channels, he used a strategy to get the evidence suppressed...

He also lobbied Congress -- with help from the ACLU, Human Rights Watch and the Brennan Center for Justice -- to pass legislation taking jurisdiction away from the military.
While none of those tactics worked, Frakt petitioned the Department of Justice (DOJ) to release Mohammed; when the DOJ's answer amounted to unsubstantiated witness testimony that was inadmissible, District Judge Ellen Segal Huvelle severely scolded the DOJ. Frakt was able to pay a fee to get a transcript of the judge's rebuke, and gave it to a New York Times reporter. The front page story embarrassed the DOJ, showed the world how unfair the tribunal was, and Huvelle ordered Mohammed released.

Did the Supreme Court's enemy combatant decisions lack substance?

Masoud Zamani (with the Islamic Azad University) focuses like a laser on the way in which the Supreme Court ruled in the enemy combatant cases. Zamani doesn't disagree with Frakt, but he takes Frakt's points to a more in-depth level. Zamani argues in a scholarly piece that the U.S. Supreme Court used what he calls procedural dimensions as a way to avoid confronting the substantive issues vis-a-vis enemy combatants at Guantanamo. It was thought by some legal observers that the Supreme Court would take an interventionist approach, which would provide a pathway for the resolution of enemy combatant issues. But Zamani claims that instead, the High Court's decision has led to bitter disappointment (Zamani, 2016).

In fact there were four enemy combatant cases that were the most significant, the author writes, and in all four cases the Bush Administration made the argument that enemy combatants should be denied the right of habeas corpus (writs of habeas corpus are used in court actions to review the legality of the defendant's arrest or imprisonment). Hence, the Bush position asserted, enemy combatants' detention should not be subjected to judicial actions (Zamani, p. 5). But in ruling on these enemy combatant cases, the High Court only embraced procedural issues. And though Zamani agrees that procedural tactics have merit, unless the High Court challenges the issues head on, basically dipping into the substance of the detainee issues, the results remain vague and imprecise (Zamani, p. 6).

Zamani mentions the case of Yaser Hamdi, who carried dual citizenships (U.S. and Saudi Arabia) and was captured in Afghanistan and accused of being a member of the Taliban. After he was transferred to Guantanamo Bay, the government learned he was in fact an American citizen and was sent to a naval brig in South Carolina. His father filed for a writ of habeas corpus asserting that the Bush Administration did not have the authority to detain a U.S. citizen, and that Hamdi had the right to challenge his detention (Zamani, p. 8).

The High Court ruled that the executive branch did indeed have the authority to detain U.S. citizens but it also ruled that detained U.S. citizens were entitled to the writ of habeas corpus because there has been no suspension of habeas corpus by the U.S. Congress (Zamani, p. 8). Clearly Zamani is distressed by the High Court's willingness to rule on habeas corpus but was consistently reluctant to relate to the term enemy combatants; moreover, Zamani is upset that while the High Court mentions the Geneva Convention's ruling on POWs, nothing in the Geneva Convention mentions enemy combatants (p. 9). It is Zamani's strong conviction that if the High Court had applied a standard to Bush's enemy combatant policy, rather than ruling on procedural issues, justice could have been achieved for the prisoners (p. 10).

More worthy scholarship on classifying enemy combatants

Kristine A. Huskey takes issue with Congress in particular in her scholarly piece in the Texas International Law Journal. Huskey recalls that in June, 2004, the High Court ruled that detainees at Guantanamo were entitled to bring habeas corpus petitions into federal court which will allow them to challenge their incarceration (Huskey, 2007). The specific cases that Huskey mentions (Al Odah v. United States and Rasul v. Bush) in which habeas corpus was ruled to be applicable were rendered moot when Congress (at that time highly politically motivated to show the public that it was getting tough on terrorism) passed the Military Commissions Act of 2006. That Act effectively stripped detainees in Guantanamo of any right to have their case heard, and basically Congress was saying that no laws whatsoever existed for those incarcerated at Guantanamo (Huskey, 2007).

The author of this article calls Guantanamo's status a legal black hole and she rails at the fact that Congress basically manufactured a law…