Rights of Enemy Combatants Essay Example for Free

Rights of Enemy Combatants Essay The September 11 2001 US bombing was followed by a US declaration of war against terrorism. The reason the US government cited for the war declaration was the intention to rid the world of all international terrorism groups that posed a formidable danger to the civilian life which is obviously innocent. True to its promise of war against terrorism, the US government has been seen to make progress. By 2003, the US government was holding about 762 terrorism suspects in Guantanamo Bay, Cuba (Stanton, 2003). The war against terrorism, according to the US government is still on and the government is not going to stop until it apprehends the capital terrorist and the head of Al- Qaeda, Osama Bin Laden. In the process of this war against terrorism, a number of tools and policies have been put in place by the US government to make the war successful. The tools at one point or another have often contradicted the very laws and regulations enshrined in the constitution of the US. One such contradiction is the concern of American Legislature of whether or not such terror suspects attract the legal rights enjoyed by the American citizens. The debate goes on. Introduction The meaning of the word Enemy Combatant is context specific. Taking the American fight against terrorism as the context, then the word may be taken to refer to an armed member belonging to an army of an enemy state with which America is at war. For instance, if America is at war with Iraq, then any member of the Iraq armed force qualifies to be called an enemy combatant (Detention of Enemy Combatants Act, 2005). It should be noted that the definition of enemy combatant has evolved over time. Prior to 2008 and according to the Geneva Conventions Article 3, an enemy combatant was described as any individual in an armed war or conflict and who attracts detention subject to the laws and customs of war (Geneva Conventions Article 3, 1949). In America today, the word enemy combatant may be taken to refer to any individual who is, allegedly, a member of the major terrorist groups; Al-Qaeda and Taliban (or member of any other group engaged in terrorism activities) who is being held or detained by the US government. Such individuals are termed as Unlawful combatants who do not in any case attract the protection of Geneva Convention entitled to War Prisoners. Therefore, enemy combatant has three definitions and we need to choose the one we will use in this paper. The last definition of enemy combatant i. e. an individual who is, allegedly, a member of the major terrorist groups of Al-Qaeda and Taliban being in custody of US authorities under the status of unlawful combatant. This paper seeks to highlight the legality of the â€Å"Unlawful Combatant† title given to these individuals by the US government. Further, the paper assesses the presence or absence of legal rights for the unlawful combatant subject to the constitution of the United States of America. Part three of the Geneva conventions defines the prisoners of war as military forces members or militia of such a force belonging to an enemy state at war with America, regular armed forces members showing allegiance to the government, Civilians supporting in non-combat roles and carries an ID issued by armed forces they owe allegiance, Inhabitants of a region uninhabited and who carry arms and reiterate on the enemies approach i. e. they follow the rules of war. Sometimes, an individual may fail to lie in any one of the specifications outlined in the Geneva Convention defining a war prisoner. In such a situation, the Geneva Convention article 3 specified further that such individuals should be treated to belong to any of the classes specified until their true status is determined by a competent tribunal. Treatment of unlawful combatants, who are supposed to be treated as war prisoners but are not, is a contentious issue in the Bush administration. The alleged suspects of Al Qaeda are supposed to be treated as war prisoners but have been called unlawful combatants, which is still within the confines of the convention. Now where the argument comes in is the closing clause in the Geneva Convention Part 3which spells out the fact that whether an individual is a lawful or unlawful combatant, he is supposed to be treated in a humane way (Geneva Conventions Article 3, 1949). The rationale behind the particular treatment of the â€Å"unlawful combatants† in Guantanamo Bay is enshrined in the Enemy Combatants Act, 2005 which has since received a considerable resistance from the judiciary and civilians alike. This 2005 Act not only managed to block the detainee’s access to lawyers and courts but also gave the government authority to play out of the dictates of the US constitution. The Act too denies the detainees the habeas corpus which is the legal feat through which detainees can ask for reprieve from illegal detention or imprisonment. The American Bar Association (ABA) is one such organization that has lifted up hands in protest against the detaining of individuals termed as unlawful combatants without giving them their right to habeas corpus. In 2003, ABA released a resolution besieging the congress to set standards to guide the detaining. They further urged the congress to allow the detainee full access to lawyers and courts in a bid to prevent netting of innocent individuals because some of the individuals held may have been found in the wrong places at the wrong times (Holland, 2008). The unlawful combatants should have access to courts and attorneys entitlement as specified by Geneva Convention Part 3 Section 5 which calls for a tribunal to determine if detainees are unlawful combatants or not. The tribunal needs to be competent. The Geneva Convention dictates are standards that should be followed internationally. In fact it is an international legal system. The Supreme Court attested to the detainee’s rights and that is why it ruled that the detainees could use U. S. courts to seek reprieve from detention (Senne, 2006). If among the detains there happens to be American citizens, such as Jose’ Padilla and Yaser Hamdi, then they have a right to an attorney, access to court and an hearing subject to American constitution. They are also entitled to a speedy trial; to determine whether or not they are guilty. They are entitled to these rights because they are American citizens. (CRS Report, 2005). The Military Trials Bill which got approval from the congress gave legislative support to the military to carry out practices unfamiliar with the Criminal Justice system of the US. The practices include prosecution, interrogation and detention denies the detainees their right of self representation (by forcing the detainees to accept lawyers from the military) and their right to a speedy trial (Smith, 2008). This infringement if detainee’s rights have also been witnessed by the Director for Human Rights, Washington Office, Tom Malinowski when he talks about how bush has managed to deny the detainees their rights. This view was affirmed by the Supreme Court when it issued an order for the 6 Algerian men who had been detained for seven years to be released. The court claimed that the detaining was illegal and it had gone against the rights of those detainees. This was seen as a setback on the US government’s war against terrorism. (Glaberson, 2008) Illegal Rights of Enemy Combatants Despite the civilians, human rights activists and some part of the judicial system maintaining that the Unlawful Enemy Combatants have legal rights that the government has only chosen to ignore, the government on its part denies this claim saying the response and treatment of detainees is within the confines of the constitution. The Enemy Combatants Act, 2005 and The Military Trials Bill set the pace for the treatment that the detained Enemy Combatants receive. The two Acts/ Bills make the treatment legal and they were passed due to anticipation by the executive that court challenges were imminent. Thus, the executive entrenched in the bills/ Acts some provisions strong enough to bar the courts interference and at the same time limit the application of international conventions that govern the treatment war prisoners or is it Enemy Combatants. These provisions also went further to bar habeas corpus leaving the detainees without any basis to seek reprieve from detention or to challenge the detention. Reacting to The Military Trials Bill, Neal Katyal, a law professor at Georgetown University said that the formation of the bill basically created two-system justice. The first justice system being the military commissions to deal with foreigners termed as Enemy Combatants and the normal or regular criminal justice system to take care of the US citizens. The emerging two systems of justice, he said, violated the14th Amendment which embraces the equal protection for all provided they are under the US jurisdiction (Austin, 2003). The fact that these detainees are called Enemy Combatants means that unlike war prisoners, they are open to detention for as long as it takes the war on terrorism without access to an attorney or any judicial intervention. The designation of Enemy Combatant traces its origin in the 1942 American Case Law where the supreme law was able to recognize the Law of War and its distinction between the War Prisoner (Lawful Combatant) and the Enemy Combatant (Unlawful Combatant). The distinction further that the Enemy Combatants were not subject to the â€Å"War prisoner† status that attracts the protection 1949 Geneva Convention pronouncements. The Enemy Combatant designation has . been used by the Supreme Court earlier in history and this has given the government precedent to use this term and treat the Enemy combatants as it does (Austin, 2003).