Court upholds tribunal provisions of Military Commissions Act - Page 2 - DiscussWorldIssues - Socio-Economic Religion and Political Uncensored Debate

**merloermfgj** · 02-20-2007, 06:18 PM

Enemy Combatants
Author: William Haynes

MEMORANDUM

To: Members of the ASIL-CFR Roundtable

From: William J. Haynes II, General Counsel of the Department of Defense
Subject: Enemy Combatants

[...]

Enemy Combatant

An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below).

The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination.

Authority to Detain

The President has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime. See, e.g., Quirin, 317 U.S. at 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The authority to detain enemy combatants flows primarily from Article II of the Constitution. In the current conflict, the President’s authority is bolstered by Congress’s Joint Resolution of September 18, 2001, which authorized “the President . . . to use all necessary and appropriate force” against al Qaida and against those nations, organizations, or persons he determines” committed or aided in the September 11 attacks.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added). This congressional action clearly triggers (if any trigger were necessary) the President’s traditional authority to detain enemy combatants as Commander in Chief.

Presidents (and their delegates) have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of POWs in the United States (some of whom were U.S. citizens) without trial or counsel. Then as now, the purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy.

Who Decides

The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict. Of course, there is no requirement that the President make such determinations personally, and in the vast majority of cases he does not do so. Rather, consistent with longstanding historical practice and applicable rules of engagement, the task is normally a function of the military command structure.

In the current conflict, military personnel ordinarily make enemy combatant determinations during combat operations, under the combatant commander’s direction. With respect to individuals captured in the United States, to date DoD has detained only Abdullah al Muhajir, also known as Jose Padilla. The President, as Commander in Chief, determined that Mr. Padilla is an enemy combatant.

[...]
Length of Detention

Many have claimed that enemy combatants are being detained “indefinitely.” The suggestion appears to be that they are being detained lawlessly and without limit. That is not true. As explained above, the constitutional power to detain during wartime is well settled. In addition, international law – including the Third Geneva Convention – unambiguously permits a government to detain enemy combatants at least until hostilities cease. There may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But disquiet about indefinite detention is misplaced for two reasons.

First, the concern is premature. In prior wars combatants (including U.S. POWs) have been legally detained for years. We have not yet approached that point in the current conflict. Second, the government has no interest in detaining enemy combatants any longer than necessary, and the Department of Defense reviews the status of all enemy combatants on a case-by-case basis to determine whether they should continue to be detained. Since we first captured or came to control detainees in Afghanistan, we have released many thousands, and we recently released additional detainees from the United States Naval Base in Guantanamo Bay, Cuba. But as long as hostilities continue and the detainees present a threat or retain intelligence or law enforcement value, no law requires that the detainees be released, and it would be imprudent to do so.

Capturing and detaining a U.S. citizen, or any other human being, is not an activity DoD takes lightly. As in other armed conflicts in which our Nation has been engaged, the detention of enemy combatants serves a vitally important protective function. Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation. We are committed to defending the United States in accordance with our constitutional responsibilities, while preserving the constitutional rights of United States citizens. It is not up to us, sitting bakc here safely in our chairs, to decide who is an enemy combatant.

It is the commanders on the ground, who are doing the fighting and doing the capturing to decide whether or not the person captured meets either the POW requirements under the Geneva Convention, or as an Enemy Combatant.

THEY are the ones who have them on the battlefield, and it is AT THAT TIME that the determination is made, based on their ACTIONS and their DRESS and their EQUIPMENT.

Not for us, 3 years later, to say: "Prove to me NOW that he wasn't wearing a UNIFORM!@!

Ridiculous.

**intorkercet** · 02-20-2007, 06:21 PM

Why are liberals always so concerned with what other people think? Doesn't doing the right thing count for something? When 1 in 6 europeans live in poverty they are the absolutely last peoples opinions we should give a d*mn about.

And because people aren't born on US soil doesn't mean they're not human just that they don't enjoy the same rights and priveleges US citizens do.

Varus

Which is why I disagree with you so often You seem to be totally devoid of Humanity and Humane thoughts.

**annouhMus** · 02-20-2007, 06:23 PM

If they were legal combatants, they would have more rights. That is the risk they took fighting in the manner they did.

Before that is true, they have to be convicted, (let alone GUILTY)

**merloermfgj** · 02-20-2007, 06:25 PM

But you seem to get to decide, regardless, don't you?

Can you not read the Memorandum? The commanders on the ground decide. Not "me." I know you are obsessed with me, but how you come to the conclusion that I get to decide who the combatants are is really quite strange.

Again, it is the commanders who decide. They are the ones who capture the enemy on the battlefield.

(while I was once on the battlefield, I was not a commander, thus I never had to fill out any DD-Forms on whether or not somene was a POW, etc..thank [insert deity here])

Right ... Basically your saying there isn't any law, it's all up to the Commanders. How fair, eh?

To the contrary. The Law of Land Warfare and the Articles of War and the Geneva Convention are quite thorough on the matter.

(rolleyes, right back at ya!)

Nonsense. Just because some army commander decided an enemy shouldn't be classified as a prisoner of war does not mean he isn't.
Yes, it does.

"some" USA Army Commander is a much better source than a member of Alquaeda. Would you rather that AL Quaead members get to decide whether or not they are POWs?

/chuckle

**annouhMus** · 02-20-2007, 06:26 PM

In spite of the present opposition, It will be overturned by the Supreme Court.

**merloermfgj** · 02-20-2007, 06:27 PM

In spite of the present opposition, I will be overturned by the Supreme Court.

You will?

Nice quick fix. I was just joking...I knew what you meant.

**Yfclciak** · 02-20-2007, 06:32 PM

I see you are back with the snide remarks. These are usually when the opposition has no grounds on which to debate other than make snide remarks, slander other religions and indulge in name calling, all of which you are famous for.

Only when it is necessary to coax you into actually reading the article. Something that is often necessary.

OK. So you don't decide, then. I still don't understand how an enemy combatant/POW can be classified as anything but, unless one is twisting the facts around.

You don't see how they can be classified as anything but what?

They are either enemy combatants or POWs. What else are you wanting them to be classified as??????

Why? Simply because you think so? They might say they are a better source then a member of the US army. Then what?

So, we should trust the word of our enemies over the word of our military commanders?

Yeah...good luck with THAT logic.

**fabrizioitwloch** · 02-20-2007, 06:46 PM

When we allow our response to terrorism to alter the very foundation of our system of jurisprudence, then the terrorists win.

I don't think that's what the terrorists are going for. Their aim is to evade detection and kill people (preferably a lot).

I don't think it's really the foundation of the American legal system to allow enemy combatants to challenge their detention in U.S. civilian courts during wartime.

**TOD4wDTQ** · 02-20-2007, 06:48 PM

Which is why I disagree with you so often You seem to be totally devoid of Humanity and Humane thoughts.

And you sir lack any understanding regarding the founding fathers intent upon creating the constitution. You're the reason these muslims think they can come over here and attack citizens and get away with it. Liberals are truly disgusting people. They would deny a US soldiers right and call him a torturer without any evidence and allow suspected terrorists access to the most liberal courts to get off as long as they badmouth the administration.

Varus

**merloermfgj** · 02-20-2007, 06:53 PM

Approach it from a very simple standpoint...numbers and time...

A hypothetical:

When I was in DS91, we had THOUSANDS of soldiers who surrendered/were captured...and I mean THOUSANDS at a TIME...DROVES...UNreal numbers..

Now imagine that the war continued for 10 years and we had to detain them in the mean time.

Lets say that we had 200,000. We put them into humane facilities...prisons..

Do you truly believe that it is either feasible or sensible to try each soldier in an American court room to both determine their "status" and then their "guilt?"

It would be impossible. It would be insane.

And it would be incredibly STUPID.

Common sense should tell you that.

Habeas Corpus WAS NEVER intended to take on that role...and it never will.

**Ferkilort** · 02-20-2007, 07:00 PM

And you sir lack any understanding regarding the founding fathers intent upon creating the constitution. You're the reason these muslims think they can come over here and attack citizens and get away with it. Liberals are truly disgusting people. They would deny a US soldiers right and call him a torturer without any evidence and allow suspected terrorists access to the most liberal courts to get off as long as they badmouth the administration.

Varus

But then you'd quite happily deny other people their rights and call them terrorists without any evidence...so how are you any different ?

02-20-2007, 06:18 PM	#21
merloermfgj Join Date Oct 2005 Posts 511 Senior Member	Enemy Combatants Author: William Haynes MEMORANDUM To: Members of the ASIL-CFR Roundtable From: William J. Haynes II, General Counsel of the Department of Defense Subject: Enemy Combatants [...] Enemy Combatant An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.” “Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below). The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination. Authority to Detain The President has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime. See, e.g., Quirin, 317 U.S. at 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The authority to detain enemy combatants flows primarily from Article II of the Constitution. In the current conflict, the President’s authority is bolstered by Congress’s Joint Resolution of September 18, 2001, which authorized “the President . . . to use all necessary and appropriate force” against al Qaida and against those nations, organizations, or persons he determines” committed or aided in the September 11 attacks.” Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (emphasis added). This congressional action clearly triggers (if any trigger were necessary) the President’s traditional authority to detain enemy combatants as Commander in Chief. Presidents (and their delegates) have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of POWs in the United States (some of whom were U.S. citizens) without trial or counsel. Then as now, the purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy. Who Decides The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict. Of course, there is no requirement that the President make such determinations personally, and in the vast majority of cases he does not do so. Rather, consistent with longstanding historical practice and applicable rules of engagement, the task is normally a function of the military command structure. In the current conflict, military personnel ordinarily make enemy combatant determinations during combat operations, under the combatant commander’s direction. With respect to individuals captured in the United States, to date DoD has detained only Abdullah al Muhajir, also known as Jose Padilla. The President, as Commander in Chief, determined that Mr. Padilla is an enemy combatant. [...] Length of Detention Many have claimed that enemy combatants are being detained “indefinitely.” The suggestion appears to be that they are being detained lawlessly and without limit. That is not true. As explained above, the constitutional power to detain during wartime is well settled. In addition, international law – including the Third Geneva Convention – unambiguously permits a government to detain enemy combatants at least until hostilities cease. There may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But disquiet about indefinite detention is misplaced for two reasons. First, the concern is premature. In prior wars combatants (including U.S. POWs) have been legally detained for years. We have not yet approached that point in the current conflict. Second, the government has no interest in detaining enemy combatants any longer than necessary, and the Department of Defense reviews the status of all enemy combatants on a case-by-case basis to determine whether they should continue to be detained. Since we first captured or came to control detainees in Afghanistan, we have released many thousands, and we recently released additional detainees from the United States Naval Base in Guantanamo Bay, Cuba. But as long as hostilities continue and the detainees present a threat or retain intelligence or law enforcement value, no law requires that the detainees be released, and it would be imprudent to do so. Capturing and detaining a U.S. citizen, or any other human being, is not an activity DoD takes lightly. As in other armed conflicts in which our Nation has been engaged, the detention of enemy combatants serves a vitally important protective function. Equally important, however, the deliberate, conscientious, and humane manner in which we designate and detain enemy combatants reflects our values and character as a Nation. We are committed to defending the United States in accordance with our constitutional responsibilities, while preserving the constitutional rights of United States citizens. It is not up to us, sitting bakc here safely in our chairs, to decide who is an enemy combatant. It is the commanders on the ground, who are doing the fighting and doing the capturing to decide whether or not the person captured meets either the POW requirements under the Geneva Convention, or as an Enemy Combatant. THEY are the ones who have them on the battlefield, and it is AT THAT TIME that the determination is made, based on their ACTIONS and their DRESS and their EQUIPMENT. Not for us, 3 years later, to say: "Prove to me NOW that he wasn't wearing a UNIFORM!@! Ridiculous. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:21 PM	#22
intorkercet Join Date Oct 2005 Posts 499 Senior Member	Why are liberals always so concerned with what other people think? Doesn't doing the right thing count for something? When 1 in 6 europeans live in poverty they are the absolutely last peoples opinions we should give a d*mn about. And because people aren't born on US soil doesn't mean they're not human just that they don't enjoy the same rights and priveleges US citizens do. Varus Which is why I disagree with you so often You seem to be totally devoid of Humanity and Humane thoughts. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:23 PM	#23
annouhMus Join Date Oct 2005 Posts 621 Senior Member	If they were legal combatants, they would have more rights. That is the risk they took fighting in the manner they did. Before that is true, they have to be convicted, (let alone GUILTY) Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:25 PM	#24
merloermfgj Join Date Oct 2005 Posts 511 Senior Member	But you seem to get to decide, regardless, don't you? Can you not read the Memorandum? The commanders on the ground decide. Not "me." I know you are obsessed with me, but how you come to the conclusion that I get to decide who the combatants are is really quite strange. Again, it is the commanders who decide. They are the ones who capture the enemy on the battlefield. (while I was once on the battlefield, I was not a commander, thus I never had to fill out any DD-Forms on whether or not somene was a POW, etc..thank [insert deity here]) Right ... Basically your saying there isn't any law, it's all up to the Commanders. How fair, eh? To the contrary. The Law of Land Warfare and the Articles of War and the Geneva Convention are quite thorough on the matter. (rolleyes, right back at ya!) Nonsense. Just because some army commander decided an enemy shouldn't be classified as a prisoner of war does not mean he isn't. Yes, it does. "some" USA Army Commander is a much better source than a member of Alquaeda. Would you rather that AL Quaead members get to decide whether or not they are POWs? /chuckle Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:26 PM	#25
annouhMus Join Date Oct 2005 Posts 621 Senior Member	In spite of the present opposition, It will be overturned by the Supreme Court. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:27 PM	#26
merloermfgj Join Date Oct 2005 Posts 511 Senior Member	In spite of the present opposition, I will be overturned by the Supreme Court. You will? Nice quick fix. I was just joking...I knew what you meant. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:32 PM	#27
Yfclciak Join Date Oct 2005 Posts 490 Senior Member	I see you are back with the snide remarks. These are usually when the opposition has no grounds on which to debate other than make snide remarks, slander other religions and indulge in name calling, all of which you are famous for. Only when it is necessary to coax you into actually reading the article. Something that is often necessary. OK. So you don't decide, then. I still don't understand how an enemy combatant/POW can be classified as anything but, unless one is twisting the facts around. You don't see how they can be classified as anything but what? They are either enemy combatants or POWs. What else are you wanting them to be classified as?????? Why? Simply because you think so? They might say they are a better source then a member of the US army. Then what? So, we should trust the word of our enemies over the word of our military commanders? Yeah...good luck with THAT logic. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:46 PM	#28
fabrizioitwloch Join Date Oct 2005 Posts 540 Senior Member	When we allow our response to terrorism to alter the very foundation of our system of jurisprudence, then the terrorists win. I don't think that's what the terrorists are going for. Their aim is to evade detection and kill people (preferably a lot). I don't think it's really the foundation of the American legal system to allow enemy combatants to challenge their detention in U.S. civilian courts during wartime. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:48 PM	#29
TOD4wDTQ Join Date Oct 2005 Posts 514 Senior Member	Which is why I disagree with you so often You seem to be totally devoid of Humanity and Humane thoughts. And you sir lack any understanding regarding the founding fathers intent upon creating the constitution. You're the reason these muslims think they can come over here and attack citizens and get away with it. Liberals are truly disgusting people. They would deny a US soldiers right and call him a torturer without any evidence and allow suspected terrorists access to the most liberal courts to get off as long as they badmouth the administration. Varus Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 06:53 PM	#30
merloermfgj Join Date Oct 2005 Posts 511 Senior Member	Approach it from a very simple standpoint...numbers and time... A hypothetical: When I was in DS91, we had THOUSANDS of soldiers who surrendered/were captured...and I mean THOUSANDS at a TIME...DROVES...UNreal numbers.. Now imagine that the war continued for 10 years and we had to detain them in the mean time. Lets say that we had 200,000. We put them into humane facilities...prisons.. Do you truly believe that it is either feasible or sensible to try each soldier in an American court room to both determine their "status" and then their "guilt?" It would be impossible. It would be insane. And it would be incredibly STUPID. Common sense should tell you that. Habeas Corpus WAS NEVER intended to take on that role...and it never will. Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

02-20-2007, 07:00 PM	#31
Ferkilort Join Date Oct 2005 Posts 422 Senior Member	And you sir lack any understanding regarding the founding fathers intent upon creating the constitution. You're the reason these muslims think they can come over here and attack citizens and get away with it. Liberals are truly disgusting people. They would deny a US soldiers right and call him a torturer without any evidence and allow suspected terrorists access to the most liberal courts to get off as long as they badmouth the administration. Varus But then you'd quite happily deny other people their rights and call them terrorists without any evidence...so how are you any different ? Share Share this post on Digg Del.icio.us Technorati Twitter
	Quote

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