Enemy combatant

Enemy combatant is a designation employed by the U.S. government and media during the War on Terror to identify individuals who participate in hostilities against the United States or its allies, whether their engagement is lawful or unlawful. Traditionally, this term referred to members of the armed forces belonging to a nation at war with another.^[1]^[2] In situations involving civil war or insurrection, the term "state" may be substituted with "party to the conflict," according to Article 3 of the 1949 Geneva Conventions.^[3]

After the September 11 attacks, the George W. Bush administration expanded the use of "enemy combatant" to encompass suspected members of al-Qaeda or the Taliban held by U.S. authorities. Within this framework, it refers to individuals considered unlawful combatants who do not meet the criteria for prisoner-of-war status under the Geneva Conventions and were excluded from such protections under policies established by President Bush. Therefore, "enemy combatant" can describe either any lawful or unlawful fighter affiliated with an enemy state or non-state entity, or specifically those alleged unlawful combatants detained by U.S. forces.

On March 13, 2009, the Obama administration declared it would discontinue using the term "enemy combatant" for detainees at Guantanamo Bay.^[4]

Change of meaning in the United States

The 1942 decision by the Supreme Court of the United States in Ex Parte Quirin distinguished between unlawful combatants and lawful combatants, relying on their traditional definitions:

In Johnson v. Eisentrager (1950), it was reaffirmed that constitutional protections do not extend to enemy combatants and that U.S. courts lack jurisdiction over them.

In response to the September 11, 2001 attacks, Congress enacted the Authorization for Use of Military Force (AUMF) on September 14, 2001, pursuant to the War Powers Resolution. Utilizing this authority, on November 13, 2001, President George W. Bush issued a Presidential Military Order titled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". Under this directive, detainees were classified as "enemy combatants," a term formally adopted in March 2002.

William Lietzau, a legal advisor within the Bush administration, introduced this terminology to emphasize that detainees were held as adversaries rather than as criminals. Although not explicitly derived from Quirin, that case was cited to support its use. Since then, "enemy combatant" has been officially applied to individuals suspected of affiliation with al-Qaida or the Taliban. For instance:

This interpretation has been embraced by other branches of government and certain segments of American media. As a result, understanding "enemy combatant" requires contextual awareness—it may refer either to members of an enemy nation's military forces or to alleged al-Qaida operatives detained by U.S. authorities.

Military Commissions Act

In response to the Supreme Court decision in Hamdan v. Rumsfeld, the United States Congress enacted the Military Commissions Act of 2006, which established definitions for lawful and unlawful enemy combatants. This legislation prohibited detainees at Guantanamo from seeking remedies through the U.S. civil court system, effectively suspending all pending habeas corpus petitions.

Boumediene v. Bush

On June 12, 2008, the United States Supreme Court ruled in Boumediene v. Bush that the Military Commissions Act could not eliminate Guantanamo detainees' entitlement to access federal courts, thereby permitting habeas corpus petitions to be reinstated. Subsequently, judges were tasked with evaluating whether sufficient evidence existed to classify detainees as "enemy combatants."

Developments after Boumediene v. Bush

On February 20, 2009, the administration of President Barack Obama endorsed the Bush-era stance that denied enemy combatants detained at Bagram Airfield in Afghanistan access to civil courts.

During a hearing on October 23, 2008, US District Court Judge Richard J. Leon expressed criticism toward Congress and the Supreme Court for failing to provide a clear definition of "enemy combatant." On October 27, 2008, he ruled to apply the Combatant Status Review Tribunal's 2004 definition:

Defense counsel representing Lakhdar Boumediene and other detainees welcomed this more restrictive definition, as many previous allegations had been withdrawn and remaining charges did not satisfy this criterion.

Discontinuation of the term under Obama administration

On March 13, 2009, United States Attorney General Eric Holder announced the discontinuation of the Bush administration’s use of the phrase "enemy combatant." The announcement highlighted efforts to formulate detainee policies that enhance national security while adhering to legal and ethical principles. Although primarily symbolic, this change signified a shift in U.S. detention terminology. By 2019, approximately 40 detainees remained at Guantanamo Bay detention facility, resulting in considerable operational expenditures.