Enemy Combatant Rights and Guantanamo Bay Detainees

Introduction: The Legal Standing of Enemy Combatants

What rights do enemy combatants have when in United States custody? What are the rules of war in that regard according to the Geneva Conventions? This paper uses scholarly publications to examine these important issues.

Clearly, the U.S. attempt at administering 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 did not work out. As late as February 23, 2016, Obama provided a blueprint to Congress to shut down the facility, asserting that keeping Guantanamo open is contrary to American values. He added that the image of the prison tends to undermine U.S. standing in the world (Liptak et al., 2016). However, Obama's plan to move Guantanamo prisoners to Supermax prisons was rejected by members of Congress; in fact, Congress had previously passed a law preventing the use of U.S. funds to close the prison (Liptak 2).

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

Initially, after Bush announced that detainees would be prosecuted in military tribunals rather than left in prison indefinitely, Frakt was energized enough by this strategy to volunteer to help prosecute those individuals. However, when he saw the tactics and procedures to be used in these tribunals, he was frankly shocked by how exceedingly unfair they appeared (Frakt, 1601). That initial tribunal plan — which Frakt called a kangaroo court — did not survive Supreme Court scrutiny. The High Court's decision in Hamdan v. Rumsfeld forced the Bush Administration to return to the drawing board (Frakt, 1601).

The next piece of legislation regarding detainee justice appeared fairer than Bush's original executive order, so Frakt volunteered to serve as a defense attorney. After reporting to the Office of Chief Defense Counsel in April 2008, Frakt was assigned to defend detainees Mohammed Jawad and Ali Hamza al Bahlul. After al Bahlul demanded to represent himself, Frakt focused on defending Mohammed, who had been captured in December 2002 in Kabul after allegedly injuring three U.S. Special Forces soldiers with a hand grenade (Frakt, 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 — standard practice for defense attorneys. Defense attorneys also work toward acquittal for their clients. The Bush Administration made clear, however, that even in the event of an acquittal it reserved the right to continue holding Mohammed at Guantanamo (Frakt, 1602). Given that reality, Frakt sought possible pathways to secure his client's release. He used diplomatic channels, pursued suppression of evidence, sought to have charges dropped on the grounds that Mohammed had been tortured, and attempted a plea bargain (Frakt, 1606). He also lobbied Congress — with support from the ACLU, Human Rights Watch, and the Brennan Center for Justice — to pass legislation removing jurisdiction from the military.

When those tactics failed, Frakt petitioned the Department of Justice (DOJ) to release Mohammed. When the DOJ's response amounted to unsubstantiated and inadmissible witness testimony, District Judge Ellen Segal Huvelle severely reprimanded the DOJ. Frakt obtained a transcript of the judge's rebuke and shared it with a New York Times reporter. The resulting front-page story embarrassed the DOJ, exposed the unfairness of the tribunal to the world, and led Judge Huvelle to order Mohammed's release.

Did the Supreme Court's Enemy Combatant Decisions Lack Substance?

Masoud Zamani, affiliated with Islamic Azad University, focuses closely on the manner in which the Supreme Court ruled in the enemy combatant cases. Zamani argues in a scholarly piece that the U.S. Supreme Court relied on what he calls procedural dimensions as a way to avoid confronting the substantive issues regarding enemy combatants at Guantanamo. Some legal observers had anticipated that the Supreme Court would take an interventionist approach, providing a pathway for the resolution of enemy combatant issues. Instead, Zamani argues, the High Court's decisions produced bitter disappointment (Zamani, 2016).

There were four enemy combatant cases of greatest significance, Zamani writes, and in all four cases the Bush Administration argued that enemy combatants should be denied the right of habeas corpus — the legal instrument used in court proceedings to review the legality of a defendant's arrest or imprisonment. The Bush position held that enemy combatants' detention should not be subject to judicial review (Zamani 5). In ruling on these cases, however, the High Court addressed only procedural issues. Although Zamani acknowledges that procedural tactics have merit, he argues that without directly confronting the substantive issues of detainee rights, the results remain vague and imprecise (Zamani 6).

Zamani discusses the case of Yaser Hamdi, who held dual U.S. and Saudi citizenship and was captured in Afghanistan on suspicion of Taliban membership. After being transferred to Guantanamo Bay, the government learned he was an American citizen and transferred him to a naval brig in South Carolina. His father filed for a writ of habeas corpus, asserting that the Bush Administration lacked the authority to detain a U.S. citizen without allowing him to challenge his detention (Zamani 8).

The High Court ruled that the executive branch did have the authority to detain U.S. citizens, but also ruled that detained citizens were entitled to the writ of habeas corpus because Congress had not suspended it (Zamani 8). Zamani is distressed by the High Court's willingness to rule on habeas corpus while consistently refusing to engage with the term "enemy combatants" directly. He is further troubled that while the High Court referenced the Geneva Convention's provisions on prisoners of war, nothing in the Geneva Convention addresses the category of enemy combatants (Zamani 9). It is Zamani's conviction that had the High Court applied a clear standard to Bush's enemy combatant policy — rather than ruling only on procedural matters — justice could have been achieved for the prisoners (Zamani 10).

Works Cited

Cutler, L. (2006). Enemy Combatants and Guantanamo: The Rule of Law and Law of War Post-911. Peace & Change, 31(1), 35–56.

Frakt, D.J.R. (2015). Persuasion in Civil Rights Advocacy: Lessons Learned in Representing Guantanamo Detainees. Michigan State Law Review, 2015(4), 1599–1615.

Honigsberg, P.J. (2007). Chasing "Enemy Combatants" and Circumventing International Law: A License for Sanctioned Abuse. UCLA Journal of International Law and Foreign Affairs, 12(1), 1–73.

Huskey, K.A. (2007). Standards and Procedures for Classifying "Enemy Combatants": Congress, What Have You Done? Texas International Law Journal, 43, 41–54.

Liptak, K., and Labott, E. (2016). Obama gives Congress Guantanamo closure plan. CNN. Retrieved April 24, 2016, from http://www.cnn.com.

Zamani, M. (2016). One Step Forward, Two Steps Backwards: A General Analysis of the US Supreme Court's Decisions in the 'Enemy Combatants' Cases. Social Science Research Network. Retrieved April 24, 2016, from http://ssrn.com.