Duhaime's Law Dictionary


Enemy Combatant Definition:

A term of American anti-terrorism law, referring to the theoretically temporary status of an accused during which he or she is detained without charges, judicial review (habeas corpus) or access to an attorney.

Related Terms: Terrorism, Unlawful Combatant, Prisoner of War

In Justice O'Connor of the US Supreme Court's opinion of June 28, 2004, in Hamdi case, the term enemy combatant was discussed in these terms:

"There is some debate as to the proper scope of this term, and the government has never provided any court with the full criteria that it uses classifying individuals as such. It has made clear, however, that for purposes of this case, the enemy combatant that it is seeking to detain is an individual who, it alleges, was part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who engaged in armed conflict against the United States."

© Oleg_Zabielin - enemy combatant imageIn Parhat v Gates, Justice Garland of the United States Court of Appeals referred to these words to describe an enemy combatant:

"... an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces....

"The parties agree that, for a detainee who is not a member of al Qaida or the Taliban, DOD's definition establishes three elements that the government must prove by a preponderance of the evidence to designate an individual as an enemy combatant: (1) the petitioner was part of or supporting "forces"; (2) those forces were associated with al Qaida or the Taliban; and (3) those forces are engaged in hostilities against the United States or its coalition partners.

"In Parhat's case, this means that the government must show that: (1) Parhat was part of or supporting East Turkistan Islamic Movement (ETIM); (2) ETIM was associated with al Qaida or the Taliban; and (3) ETIM is engaged in hostilities against the United States or its coalition partners."

According to University of San Francisco School of Law's Joanna Woolman in her 2004 article, the United States Supreme Court, in Ex parte Quirin:

"... used the term to exemplify the type of activity that warrants the denial of rights typically accorded to POWs. Spies without uniforms who cross military lines to gather information and communicate it to the enemy, enemy combatants who without uniform come secretly through the lines for the purpose of waging war by destruction of life or property are familiar examples of belligerents who are generally deemed not to be entitled to the status of POWs, but to be offenders against the law of war subject to trial and punishment by military tribunals."

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