First, lets clear up this misguided notion about the term "Enemy Combatants". It was not made up by President Bush or anyone in the Bush administration. The term dates to 1942 and decision by the Supreme Court in Ex Parte Quirin.

Its is from this ruling that the decision to hold members of terrorist groups like al-Queda and the Taliban originated. The Court held that lawful combatants were deemed prisoners of war and afforded the protection under Article 3 of the Geneva convention. The court also found that unlawful combatants were not entitled to prisoner of war status. Furthermore, the Geneva Convention in Article 5 states that any persons who status is uncertain will be treated as a Prisoner of War and afforded the same rights under Article 3. However, members of al-Qaeda and the Taliban fail to qualify as prisoners of war, thus, their status has been termed Enemy Combatant in accordance with the Supreme Court decision in 1942 Ex Parte Quirin.

So despite the rhetoric going on about the term Enemy Combatants, it would seem that it is established in American jurisprudence. As for international law, there is none that recognizes these members held at Gitmo. Since the Geneva Convention does not apply to them, one must look only to the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights.

However, under Article 8 of the UDHR, allows for “an effective remedy by the competent national tribunals” only for “acts violating the fundamental rights granted by the constitution and by law.” And Article 9 of the UDHR provides that “no one shall be subjected to arbitrary arrest, detention, or exile.”

Article 4 of the ICCPR, however, provides that:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.

So it would again seem that the President is supported not only by American jurisprudence but under International Law as well. None of the individuals in Gitmo can qualify as being arrested arbitrarily, most were caught on the field of battle in Afghanistan in armed conflict with the United States.

Furthermore, since they are considered to be unlawful combatants and deemed Enemy Combatants they are outside the Criminal Justice System. They are not criminals for fighting for the al-Qaeda or Taliban. If it can be proven that the individuals committed war crimes, then they may be tried criminally, however, if not, they can be detained until the ending of all hostilities in the region, no different than a lawful combatant.

dmk