Guantanamo Bay Detainees vs. Enemy Combatants

Introduction

Guantanamo Bay, Cuba — where the United States maintains a Navy base — has, for the years following September 11, 2001, been the subject of ongoing controversy and debate. At the center of that debate are approximately 640 foreign nationals from countries other than the United States (Fogarty, 2005, p. 54). These individuals have been detained by the United States as alleged threats, accused of conspiring or acting — independently or with others — to bring harm to the citizens and government of the United States (Fogarty, 2005, p. 54). The controversy, however, extends beyond the detention itself, which is already a primary issue; additional legal and human rights questions branch off in several directions.

To understand the detention and the surrounding legal and human rights issues, it is necessary to first break down the central questions and then present the arguments of each side. The various perspectives can be organized around a single question about the prisoners themselves: Are the foreign nationals held at Guantanamo Bay detainees or enemy combatants? It is by way of these two definitions that the foreign nationals held at Guantanamo Bay have been described at any given time, and by which the arguments can be categorized and discussed in a coherent way.

Foreign National Backgrounds

Before examining the core issues surrounding the terms "detainee" and "enemy combatant," it is useful to understand who the foreign nationals held at Guantanamo are, where they come from, and how they came to be there.

Following the events of September 11, 2001, when religious fundamentalists attacked the United States using commercial passenger jets as weapons of mass destruction, the United States launched its War on Terrorism. Following the U.S. invasion of Afghanistan, in February 2002, the Washington Times reported that 186 detainees had been moved out of Afghanistan to Guantanamo Bay, Cuba (the Washington Times, 2002, p. A01). The same article reported that another 271 prisoners remained in Afghanistan, awaiting transport to Guantanamo (the Washington Times, 2002, p. A01).

The article cited the Pentagon as its source for identifying the detainees' nationalities: approximately 50 were Saudi Arabian nationals; 30 were Yemeni; about 25 were Pakistani; eight were Algerian; three were British citizens; and "small numbers from Egypt, Australia, France, Russia, Belgium, Sweden, and other countries" were also included (the Washington Times, 2002, p. A01). The article does not specify whether the citizens of the European nations were Muslim or of Arab heritage, but does report that the prisoners were believed to possess information about Al Qaeda and planned attacks and that they were being interrogated (the Washington Times, 2002, p. A01).

The Detainee Designation

"Detainee" is the term that has been consistently and casually used to describe the foreign nationals held at Guantanamo Bay, Cuba. The term reflects the obscurity of the legal status of those held. It has come to define foreign nationals being held in American military facilities without being charged with a crime, without access to legal representation, and without access to due process under American law (Katyal, 2007, p. 1365).

As Katyal (2007) notes, petitioners alleged that, although they had engaged neither in combat nor in acts of terrorism against the United States, they had been held in executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing — circumstances that "unquestionably describe 'custody in violation of the Constitution or laws or treaties of the United States'" under 28 U.S.C. § 2241(3), citing United States v. Verdugo-Urquidez, 494 U.S. 259, 277–78 (1990) (p. 1365).

The Bush Administration maintained that the detainees posed a threat to the United States and were complicit either in the September 11, 2001 attacks or in separate but equally threatening plots to commit acts of terrorism and make war on the United States. Early in 2002, when the detainees were first being transported to Guantanamo Bay, the Administration faced relatively little criticism. As time passed, however, and it became apparent that the detainees' legal status could remain undefined indefinitely, criticism of the Administration's approach intensified.

Conclusion

The term "enemy combatant" ultimately became the designation by which detainees at Guantanamo were held without due process, without access to legal representation, and without being formally charged with any crime. The legal and human rights debates surrounding Guantanamo Bay — shaped by the competing definitions of "detainee" and "enemy combatant" — reflect deep constitutional tensions between executive authority in wartime and the individual rights guaranteed under American law. The Hamdi case brought those tensions into sharp relief and set the stage for broader judicial scrutiny of the government's detention policies.

References

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+.

Fogarty, G. P. (2005). Is Guantanamo Bay undermining the global war on terror? Parameters, 35(3), 54+.

Katyal, N. (2007). Equality in the war on terror. Stanford Law Review, 59(5), 1365+.

Troops search site for dead Al Qaeda; Taliban foreign minister surrenders. (2002, February 9). The Washington Times, p. A01.