You Say Defendant, I Say Combatant: Opportunistic Treatment of Terrorism Suspects Held in the United States and the Need for Due Process


Nearly any discussion of terrorism-whether it is legal, academic or political-is likely to wrestle with terminology. Traditionally, terrorist acts have been treated as civil crimes rather than acts of war, but the labeling of terrorism as warfare has gained tremendous political currency since the attacks of September 11, 2001. The amorphous war on terrorism has produced an equally indefinite vocabulary for terrorism suspects held in the United States. Material witness? Enemy combatant? Criminal defendant? Terrorist? The status of a detainee by any other name would be just as unclear and uncertain. The multitude of terms speaks volumes about the indecision of the executive and judicial branches over what to call terrorism detainees being held in the United States, and consequently how to treat them. It also leaves the impression that the government is labeling them according to how it wants the detainees to be treated.

For an Administration with a record of practicing secrecy and silence, neither the Bush White House nor the Ashcroft Justice Department are short on words. But years after the Administration re-introduced the term “enemy combatant” into the public lexicon, it is still unclear what the label means. The infinite elasticity of the term “enemy combatant,” and the ease with which individuals are shuffled back and forth between the military justice system and the civilian justice system, belie the government’s confidence about how to proceed with this new class of individuals.

“American Taliban” John Walker Lindh was transferred from the military system to the civilian legal system, with a promise to return him to the military system if he violates his plea agreement. U.S. citizen and “dirty bomb” suspect Jose Padilla was arrested on a material witness warrant, detained in a federal jail and appointed counsel, declared a “military combatant” a month later, and then ordered released by a federal appeals court a year and a half later. British national Richard Reid, the convicted “shoe bomber,” received the benefits of the civilian legal system while U.S. citizen Yaser Hamdi faced the military system. The criminal justice system was used to convict lyman Faris, a truck driver from Ohio who admitted in June 2003 that he was involved in a conspiracy by al Qaeda to destroy the Brooklyn Bridge,” yet the government is considering dropping the criminal case against French national Zacarias Moussaoui, the alleged “20th hijacker,” in order to re-designate him as an enemy combatant and try him before a military tribunal. Most recently, Qatari graduate student Ali Saleh Kahlah al-Marri, described by federal prosecutors as an al Qaeda “sleeper operative,’ was designated an enemy combatant. The government dropped criminal charges against him less than a month before his trial, making him the first terrorism suspect in the U.S. to be declared an enemy combatant after being criminally charged. This followed an unsuccessful attempt by the prosecution to get al-Marri’s case dismissed without prejudice so they would have the option to move him back to the civilian justice system at some point.

After detailing the checkered history and current use of the term “enemy combatant,” I document the constant shuttling of various individuals back and forth between the military authorities and the civilian authorities, and submit that the “enemy combatant” label is being used as a term of convenience, making its usage a tool for forum-shopping and selective justice, and ultimately undermining the legitimacy and integrity of both systems. While acknowledging that the government is entitled to considerable deference in detention decisions during hostilities, I argue that the porous wall between the civilian justice system and the military system is itself a denial of due process of law under the Fifth Amendment. I conclude by proposing that there be a procedure-an evidentiary hearing designed to determine enemy combatant status for both citizens and non-citizens detained on U.S. soil-in an effort to fully comport with due process.

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